Opportunity criterion applied to crown witness in ICE corruption caseCriterio de oportunidad aplicado a testigo de la corona en caso de corrupción del ICE

PODER JUDICIAL TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL Resolución: 2015-1620 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL, Segundo Circuito Judicial de San José. Goicoechea, at sixteen hours and ten minutes on December two, two thousand fifteen.- RECURSOS DE APELACIÓN filed in the present case against [Nombre 001], [...]; [Nombre 006], [...]; [Nombre 018], [...]; [Nombre 022], [...]; [Nombre 028], [...]; [Nombre 033], [...]; [Nombre 041], [...]; for the crimes of CORRUPCIÓN AGRAVADA EN SU MODALIDAD DE COHECHO IMPROPIO, ENRIQUECIMIENTO ILÍCITO Y PENALIDAD DEL CORRUPTOR POR CORRUPCIÓN AGRAVADA EN LA MODALIDAD DE COHECHO IMPROPIO, to the detriment of the DEBERES DE LA FUNCIÓN PÚBLICA and the INSTITUTO COSTARRICENSE DE ELECTRICIDAD. Participating in the decision on the appeal are Judge Patricia Vargas González, and Judges Mario Alberto Porras Villalta and Ronald Salazar Murillo. Appearing before this court: Dr. [Nombre01 033], together with his defense attorneys, Licenciados Rafael Gairaud Salazar and Cristian Arguedas Arguedas; Licenciado Hugo Santamaría Lamicq, as defense counsel for Mr. [Nombre 046]; Licenciado Mario Gonzalo Soto Baltodano, as President with powers of general attorney-in-fact without limit of sum of the company called [Nombre 050] .; Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense counsel for Mr. [Nombre 006]; Licenciado Mario Navarro Arias, as defense counsel for Mr. [Nombre01 028] and special judicial attorney-in-fact for the companies [Nombre 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]. and [Nombre 058].; Licenciado José Miguel Villalobos Umaña, as defense counsel for Mr. [Nombre 018]; Messrs. [Nombre 001], [Nombre 028], [Nombre 041], and [Nombre 018], in a brief authenticated by Licenciado José Miguel Villalobos Umaña; Licenciados Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial attorneys-in-fact for the company [Nombre 059] (formerly [Nombre 060]); Licenciados Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; Licenciado Juan Luis Vargas Vargas, as special judicial attorney-in-fact for Mr. [Nombre01 077], who is the president with powers of general attorney-in-fact without limit of sum of the company called [Nombre 061].; Licenciada Yamura Valenciano Jiménez, as defense counsel for Messrs. [Nombre01 001] and [Nombre 022]; Licenciadas Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Ministerio Público; Licenciados Federico Morales Herrera and Erick Ramos Fallas, as defense counsel for Mr. [Nombre01 041]; and Licenciado Germán Calderón Lobo, as representative of the Instituto Costarricense de Electricidad.

RESULTANDO:

I.- The Tribunal Penal de Hacienda y la Función Pública of the Second Judicial Circuit of San José, by judgment No. 167-2011, at 15:00 hours on April 27, 2011, decided, by a majority, the following: “A) Reclassifications and incidental matters: A.1) Reclassifications: unanimously, the facts charged against [Nombre01 018] are reclassified from the crime of Corrupción agravada derivada del Cohecho impropio to the crime of Enriquecimiento ilícito; as well as the facts attributed to [Nombre01 063], considered by the prosecutorial representation as constituting the crime of Enriquecimiento ilícito, are reclassified to the crime of Receptación provided for by Article 323 of the Penal Code. By a majority, with the dissenting vote of co-judge Camacho Morales, the three crimes of Enriquecimiento ilícito in material concurrence attributed to [Nombre01 006] are reclassified to one crime of Enriquecimiento ilícito. A.2) Statute of limitations defenses: unanimously, the statute of limitations defense for the criminal action filed in favor of the accused [Nombre01 063] in relation to the crimes of Receptación and Favorecimiento Real provided for by Articles 323 and 325 of the Penal Code is granted, and the statute of limitations defense for the criminal action filed in favor of [Nombre01 006] for one crime of Enriquecimiento ilícito, as reclassified, is rejected. A.3) By a majority, with the dissenting vote of co-judge Camacho Morales, the statute of limitations defenses for the criminal action in favor of [Nombre01 033] for four crimes of Enriquecimiento ilícito, and in favor of [Nombre01 018] for one crime of Enriquecimiento ilícito, as reclassified, are rejected. A.4) Unanimously, the defense of res judicata raised in favor of the accused [Nombre01 018] is rejected. A.5) By a majority, with the dissenting vote of co-judge Camacho Morales, the objection for defective procedural activity filed in defense of the accused [Nombre01 018] and requested for extensive application to the remaining accused regarding the bank evidence whose unlawfulness is alleged and which was obtained in a different criminal process from this one, is rejected. A.6) By a majority, with the dissenting vote of co-judge Camacho Morales, the remaining objections, incidental matters, and defenses related to the crimes charged 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, [Nombre01 063] is acquitted of all penalty and liability for the crime of RECEPTACIÓN, as reclassified, and of FAVORECIMIENTO REAL, both to the detriment of the ADMINISTRACIÓN DE JUSTICIA; due to atypicality, [Nombre01 041] is acquitted of one crime of PENALIDAD DEL CORRUPTOR in relation to the crime of CORRUPCIÓN AGRAVADA por COHECHO IMPROPIO attributed to [Nombre01 018] and reclassified to the crime of ENRIQUECIMIENTO ILÍCITO to the detriment of PROBIDAD EN LA FUNCIÓN PÚBLICA. Likewise, unanimously, applying the principle of In dubio pro reo, [Nombre01 033] is acquitted of all penalty and liability for four crimes of ENRIQUECIMIENTO ILÍCITO to the harm of PROBIDAD EN LA FUNCIÓN PÚBLICA, and [Nombre01 001] of one crime of FRAUDE DE SIMULACIÓN in relation to the transfer of the property registered with Folio Real number [Valor 001], Submatrícula , by means of deed No. 244 executed before the notary public Nombre01, to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and of COLECTIVE AND DIFFUSE INTERESTS. B.2) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 041] is declared co-perpetrator liable for four crimes of PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO, in material concurrence, in relation to [Nombre01 022], [Nombre02 001], [Nombre01 064], and [Nombre01 068], to the detriment of PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced for each of the crimes to a penalty of FIVE YEARS OF PRISON for a total of TWENTY YEARS OF PRISON which, applying the rules of material concurrence (concurso material), is reduced to FIFTEEN YEARS OF PRISON, a sentence that must be served in the place and manner determined by the respective prison regulations once the pre-trial detention served has been deducted. The absolute disqualification (inhabilitación absoluta) requested by the Prosecutor's Office is rejected due to the lack of concurrence of the legal requirements for its application. B.3) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 028] is declared co-perpetrator liable for three crimes of PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO in relation to [Nombre01 022], [Nombre01 001], and [Nombre01 064] to the detriment of PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced for each crime to a penalty of FIVE YEARS OF PRISON for a total of FIFTEEN YEARS OF PRISON, a sentence that must be served in the place and manner determined by the respective prison regulations once the pre-trial detention served has been credited. The absolute disqualification (inhabilitación absoluta) requested by the Prosecutor's Office is rejected due to the lack of concurrence of the legal requirements for its application. B.4) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 046] is declared co-perpetrator liable for one crime of PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO regarding [Nombre 068], and perpetrator liable for one crime of PENALIDAD DEL CORRUPTOR por COHECHO PROPIO in relation to [Nombre 064], both to the harm of the PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced to a penalty of FIVE YEARS OF PRISON for the first and FIVE YEARS OF PRISON for the second for a total of TEN YEARS OF PRISON, a sentence that must be served in the place and manner determined by the respective prison regulations once the pre-trial detention that he may have served has been deducted. The absolute disqualification (inhabilitación absoluta) requested by the Prosecutor's Office is rejected due to lack of concurrence of the legal requirements for its application. B.5) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 022] is declared perpetrator liable for the crime of CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO to the detriment of PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced to a penalty of FIVE YEARS OF PRISON, which must be served in the place and manner determined by the respective prison regulations once the pre-trial detention served has been deducted. He is also DISQUALIFIED during a period of TWELVE YEARS from obtaining and exercising public jobs, positions, or commissions. B.6) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 001] is declared perpetrator liable for one crime of CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO, to the detriment of the PROBIDAD EN LA FUNCIÓN PÚBLICA, and one crime of FRAUDE DE SIMULACIÓN regarding the vehicles transferred by deed No. 267 before the notary public Nombre03 to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and of COLECTIVE AND DIFFUSE INTERESTS, being sentenced to a penalty of FIVE YEARS OF PRISON and TEN YEARS OF PRISON respectively, for a total of FIFTEEN YEARS OF PRISON, a sentence that must be served in the place and manner determined by the respective prison regulations once the pre-trial detention that he may have served has been deducted. He is also DISQUALIFIED during a period of TWELVE YEARS from obtaining and exercising public jobs, positions, or commissions. B.7) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 006] is declared perpetrator liable for one crime of ENRIQUECIMIENTO ILÍCITO, as reclassified, committed to the harm of the PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced to a penalty of TWO YEARS OF PRISON, which must be served in the place and manner determined by the respective prison regulations after crediting the pre-trial detention served. Similarly, he is disqualified during a period of TWELVE YEARS from obtaining and exercising public jobs, positions, or commissions. As the legal requirements 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 prison, in which case this benefit will be revoked. B.8) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 033] is declared liable as an instigator for the crime of CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO to the detriment of PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced to a penalty of FIVE YEARS OF PRISON, which must be served in the place and manner determined by the respective prison regulations once the pre-trial detention served has been deducted. He is also DISQUALIFIED during a period of TWELVE YEARS from obtaining and exercising public jobs, positions, or commissions. B.9) By a majority, with the dissenting vote of co-judge Camacho Morales, [Nombre01 018] is declared perpetrator liable for one crime of ENRIQUECIMIENTO ILÍCITO, as reclassified, committed to the detriment of the PROBIDAD EN LA FUNCIÓN PÚBLICA, being sentenced to a penalty of TWO YEARS OF PRISON, which must be served in the place and manner determined by the respective prison regulations once the pre-trial detention served has been credited, without considering the concurrence of the legally established requirements to merit the benefit of conditional execution of said sanction. He is also DISQUALIFIED during a period of TWELVE YEARS from obtaining and exercising public jobs, positions, or commissions. C) Civil aspects: C.1) Unanimously, regarding the ACCIÓN CIVIL RESARCITORIA filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD: C.1.1) The civil lawsuit filed by the aforementioned institute against [Nombre 041], who expressly waived so that the civil plaintiff would be ordered to pay costs, is considered withdrawn. C.1.2) No ruling is made on the substantive right at issue in relation to the civil actions filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the civil defendants [Nombre01 028], [Nombre 022], [Nombre 033], [Nombre 063], [Nombre 018], [Nombre 001], [Nombre 006], [Nombre 058]., and [Nombre 060]. C.1.3) The civil lawsuit brought by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the aforementioned defendants is resolved without a special order for costs of either party. C.1.4) Once the judgment is final, it is ordered that the attachments (embargos) decreed in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD regarding the mentioned civil lawsuits be lifted. C.1.5) The request for a condemnation for damages caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments (embargos) executed to guarantee the results of this process is rejected. C.2) Unanimously, regarding the ACCIÓN CIVIL RESARCITORIA filed by the PROCURADURÍA GENERAL DE LA REPÚBLICA: C.2.1) No ruling is made on the substantive right at issue in relation to the civil actions brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA against the civil defendants [Nombre01 041], [Nombre 028], [Nombre 022], [Nombre 033], [Nombre 063], [Nombre 018], [Nombre 001], [Nombre 046], [Nombre 006], [Nombre 058]., [Nombre 053]., [Nombre 057]., [Nombre 056]., [Nombre 055]., and [Nombre 054].. C.2.2) The civil lawsuit brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA regarding the aforementioned civil defendants is resolved without a special order for costs of either party. C.2.3) Upon the finality of the judgment, it is ordered that the attachments (embargos) decreed in favor of Nombre03 in relation to the civil lawsuits filed be lifted. C.2.4) The request for a condemnation for damages caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments (embargos) executed to guarantee the results of this process is rejected. D) Forfeiture (Comiso) and declaration of instrumental falsehood: By a majority, with the dissenting vote of co-judge Camacho Morales, the forfeiture (comiso) in favor of the State of the following assets is ordered: D.1) The properties registered in the Public Property Registry: Partido de Guanacaste under the Folio Real system, Matrícula N° [Valor 002], Submatrícula 000; Partido de Guanacaste under the Folio Real system, Matrícula N° [Valor 003], Submatrícula 000; Partido de Guanacaste, Folio Real system, Matrícula Nº [Valor 005], Submatrícula 002; and Partido de Heredia registered under the Folio Real system, Matrícula Nº [Valor 006], Submatrícula 000. D.2) The Investment Certificate N° 62445223 that was renewed into certificate Nº 62736757 for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five cents, in the name of Nombre01 Nombre03. D.3) The sums of fifty-eight thousand dollars and eighty-one thousand four hundred dollars, economic support of check No. 11387-9 from Banco Interfin and check No. 201-722218 from Bank of New York Delaware, both drawn to [Nombre01 064] and deposited to the order of this court. D.4) The shares of [Nombre01 028] in the company [Nombre01 057]., owner, among others, of the real properties registered in the Public Registry under the Folio Real system, Matrícula Nº [Valor 007], Submatrícula 000 and Matrícula Nº [Valor 009], Submatrícula 000. D.5) The vehicles brand Nombre04 Grand Vitara XL, license plate Nº [Valor 010]; and brand Nombre04 Jimny, license plate Nº []. D.6) The instrumental falsehood is declared for public deed No. 267 granted before the notary public Nombre03 by [Nombre01 001] and [Nombre01 075]; therefore, the transfer of assets established in said instrument by the sentenced parties [Nombre01 076] must be annulled, proceeding with the corresponding registry rectifications. E) Precautionary measures: E.1) Pre-trial detention (Prisión preventiva): by a majority, with the dissenting vote of co-judge Camacho Morales, the Prosecutor's Office's request is granted and the precautionary measure of pre-trial detention (prisión preventiva) is decreed for [Nombre01 028] and [Nombre01 001] for a period of eighteen months, to be calculated from April twenty-seven, two thousand eleven, until October twenty-seven, two thousand twelve, and for [Nombre01 041] for a period of twelve months, to be calculated from April twenty-seven, two thousand eleven, until April twenty-seven, two thousand twelve. This is due to the modification of the status held by the accused [Nombre01 041], [Nombre01 028], and [Nombre01 001] in relation to this process, as well as the nature and quantum of the penalty imposed on each of them, which constitutes a sufficient reason so that, if they were at liberty, each of them might seek viable alternatives to evade their criminal liability and frustrate the purposes of the Administration of Justice, whose protection and foundation are of constitutional order. E.2) Supplementary measures: by a majority, with the dissenting vote of co-judge Camacho Morales, at the request of the representation of the Ministerio Público, the following substitute precautionary measures for pre-trial detention (prisión preventiva) are imposed on the sentenced persons [Nombre01 022], [Nombre01 033], [Nombre01 046], and [Nombre01 018], consisting of: the prohibition from leaving the country from April twenty-seven, two thousand eleven, until the finality of the judgment, for which each of the sentenced persons 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 if that day is a non-business day, for which a record must be kept where they sign. The measures described will be effective from the reading of the dispositional section of the sentence and until the finality of the judgment, with the warning that in case of breach of the established conditions or the indicated substitute precautionary measures, the now-relinquished pre-trial detention (prisión preventiva) could be applied. F) Other relevant aspects: F.1) Costs of the process: unanimously, the costs of the criminal process are borne by the State. F.2) Personal legal costs: unanimously, the costs of the process regarding the exercise of the criminal action are borne by the accused. Given the proven economic solvency of the sentenced persons [Nombre01 022], [Nombre 001], [Nombre02 046], and [Nombre02 006], who opted for legal advice from lawyers of the Public Defender's Office of the Judiciary, in accordance with Articles 152 of the Ley Orgánica del Poder Judicial and 265 of the Código Procesal Penal, each must pay the fees of the professionals who have assisted them during this process. Item set at the sum of TEN MILLION COLONES, which covers their professional performance from their appearance and until the issuance of this judgment, not including any eventual appeals and other proceedings that may be required after its issuance. Said sum must be paid by each of the accused in favor of the Poder Judicial within fifteen days following the finality of the judgment, with the consequent attachment (embargo) and auction of their assets in the event of breach of this obligation. F.3) Communications: by a majority, with the dissenting vote of co-judge Camacho Morales, issue the appropriate communications regarding the prohibition on leaving the country for [Nombre01 022], [Nombre01 046], [Nombre01 033], and [Nombre02 018] to the Dirección General de Migración y Extranjería. Once this judgment is final, the pertinent official letters will be sent to the Tribunal Supremo de Elecciones regarding the absolute disqualifications (inhabilitaciones absolutas) of [Nombre01 022], [Nombre01 033], [Nombre 018], [Nombre 001], and [Nombre02 006] for holding public offices by popular election, and to the Civil Service for the absolute disqualifications (inhabilitaciones absolutas) in the appointment to other public jobs, positions, and commissions. Notify the Public Property Registry of the instrumental falsehood declared regarding the deed granted before the notary public Nombre03. Send the communications to the Instituto Nacional de Criminología, the Juzgado de Ejecución de la Pena, and the Registro Judicial so that they may proceed with what corresponds to them. NOTIFÍQUESE…” (F. 16,497 to 16,506 front, Volume XXXIV).

II.- Against the preceding pronouncement, appeals were filed by: Dr. [Nombre01 033], personally, as well as his defense attorneys, Licenciados Rafael Gairaud Salazar and Cristian M. Arguedas Arguedas; Licenciado Hugo Santamaría Lamicq, as defense counsel for [Nombre 046]; Licenciado Mario Gonzalo Soto Baltodano, as president with powers of general attorney-in-fact without limit of sum of the company called [Nombre 050].; Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense counsel for [Nombre 006]; Licenciado Mario Navarro Arias, as defense counsel for [Nombre02 028], as well as in his capacity as special judicial attorney-in-fact for the civil defendants [Nombre01 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]., [Nombre02 058]., and [Nombre 028]; Licenciado José Miguel Villalobos Umaña, as private defense counsel for [Nombre 018]; the accused [Nombre 001], [Nombre 028], [Nombre 041], and [Nombre 018], in a brief authenticated by Licenciado José Miguel Villalobos Umaña; Mr. [Nombre 018], in a brief authenticated by Licenciado Hugo Santamaría Lamicq; Licenciados Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial attorneys-in-fact for the company [Nombre 059] (formerly [Nombre 060]); Licenciados Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; Licenciado Juan Luis Vargas Vargas, as special judicial attorney-in-fact for Mr. [Nombre02 077], who is the president with powers of general attorney-in-fact without limit of sum of the company called [Nombre 061].; Licenciada Yamura Valenciano Jiménez, as defense counsel for [Nombre01 001] and [Nombre 022]; Licenciadas Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Ministerio Público; as well as Licenciados Federico Morales Herrera and Erick Ramos Fallas, as defense counsel for [Nombre01 041].

III.- By Resolution No. 2014-1847, at 11:20 hours on November 21, 2014, the Sala Tercera de la Corte Suprema de Justicia resolved as follows: “POR TANTO. The following are declared without merit: 1) The first claims, of the first section; first and second, of the fourth section, all from the Appeal of the Ministerio Público; 2) The appeal for cassation (recurso de casación) filed personally by the accused [Nombre01 001]. The following grounds are granted: Second of the first section; first of the second section; by a majority, (Gómez Cortés, López Madrigal, Desanti Henderson, and Sanabria Rojas), the second ground of the second section. Magistrate Cortés Coto issues a dissenting vote; the first, second, and third of the third section; the second, third, fourth, fifth, sixth, seventh, and ninth of the seventh section; first and second of the eighth section. Due to lack of interest, the fourth, fifth, sixth, seventh, and ninth claims of the sixth section are not considered. The sole admitted ground for cassation from the appeal filed by the Procuraduría General de la República is declared with merit. Consequently, judgment 2012-2550 of the Tribunal de Apelación de Sentencia Penal is annulled, except for what was ordered regarding the crimes of fraude de simulación against [Nombre01 001] and that concerning the acquittal of the accused [Nombre01 033] for four crimes of Enriquecimiento Ilícito, set forth in point A) of the dispositional section of the challenged judgment. Remand (reenvío) is ordered for new substantiation, so that the appeals against the criminal judgment filed by the accused may be resolved, with the exception of what has become final here. The remand (reenvío) to the Trial Court on the civil matter raised by the Procuraduría General de la República shall be conducted taking into account all the facts of the written submission of the Acción Civil Resarcitoria, presented by that party…” (F. 176,528 front and back, Volume XLIII).

IV.- Because the cassation body ordered a partial remand (reenvío) to the sentence appeal stage, this court must rule again on the following appeals that were filed against the resolution of the Tribunal Penal de Hacienda y la Función Pública of the Second Judicial Circuit of San José:

• A)Appeals filed by [Nombre01 033].
• B)Appeals filed by Licenciado Rafael Gairaud Salazar, private defense counsel for [Nombre 033].
• C)Appeals filed by Licenciada Yamura Valenciano Jiménez, in her capacity as defense counsel for [Nombre02 022] and for [Nombre 001].
• D)Appeals filed by Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense counsel for [Nombre 006].
• E)Appeal filed personally by the accused [Nombre01 001], [Nombre01 028], [Nombre 041], and [Nombre 018].
• F)Appeals filed by Licenciado José Miguel Villalobos Umaña, defense counsel for [Nombre 018], and by the accused [Nombre 018] personally.
• G)Appeals filed by Licenciado Mario Navarro Arias, defense counsel for [Nombre 028].
• H)Appeals filed by Licenciados Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Nombre 041].
• I)Appeals filed by Licenciado Juan Luis Vargas Vargas, special judicial attorney-in-fact for [Nombre 077], who is the president with powers of general attorney-in-fact without limit of sum of the company called [Nombre 061].

V.- Having verified the respective deliberation in accordance with the provisions of Article 465 of the Código Procesal Penal, the court considered the matters raised in the appeals.

VI.- That in the proceedings, the pertinent legal precepts have been observed.

Authored by Judge Patricia Vargas González and,

CONSIDERANDO:

I.- As explained in this Chamber's Resolution No. 2015-695, at 11:00 hours on May 12, 2015, upon the remand (reposición de la fase de apelación) ordered by the Sala Tercera de la Corte Suprema de Justicia, through Resolution No. 1847-2014, at 11:20 hours on November 21, 2014, it is the responsibility of this panel of the Tribunal de Apelación de Sentencia Penal of the Second Judicial Circuit of San José to resolve the following challenges:

• A)Appeals filed by [Nombre 033], personally, with the exception of point d) of the third section of the sentence appeal, entitled “Impediment to the exercise of my material defense” (f. 172,524 to 172,526 front, Volume XXXIX).
• B)Appeals filed by Licenciado Rafael Gairaud Salazar, private defense counsel for [Nombre 033].
• C)Appeals filed by Licenciada Yamura Valenciano Jiménez, in her capacity as defense counsel for [Nombre 022].
• D)Those filed by Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense counsel for [Nombre 006].
• E)Appeal filed personally by the accused [Nombre 001], [Nombre 028], [Nombre 041], and [Nombre 018], in a brief authenticated by Licenciado José Miguel Villalobos Umaña.
• F)Appeals filed by Licenciado José Miguel Villalobos Umaña, defense counsel for [Nombre 018], and by the accused [Nombre 018] personally, in a brief authenticated by Licenciado Hugo Santamaría Lamicq, except for the last two claims filed in both challenges (specifically, the fourteenth and fifteenth grounds), as they are related to the issue of the acción civil resarcitoria.
• G)Of the appeal filed by Licenciada Yamura Valenciano Jiménez, in her capacity as defense counsel for [Nombre01 001], the first, second, and sixth grounds will be heard, the latter only in relation to the penalty imposed on [Nombre01 001] for the crime of corrupción agravada en su modalidad de cohecho impropio.
• H)Appeals filed by Licenciado Mario Navarro Arias (deceased), in his capacity as defense counsel for [Nombre01 028] and only in relation to the criminal aspects of the challenged judgment.

Therefore, the last three grounds of the appeal against the judgment filed in his capacity as special judicial representative of the civil defendants [Name01 053]., [Name 054]., [Name 055]., [Name 056]., [Name 057]., [Name 058]. and [Name01 028] in their personal capacity are excepted, in which they challenge what was decided by the trial court regarding the civil aspects of the case (see, f. 172,262 to 172,270, volume XVIII).

• I)Appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, in their capacity as defense counsel for [Name 041].
• J)Appeals filed by attorney Juan Luis Vargas Vargas, in his capacity as special judicial representative of Mr. [Name01 077], who is the president with powers of unlimited general representative of the company named [Name 061].

II.- As explained in Resolution No. 2015-0695 referenced above, the Third Chamber of the Supreme Court of Justice, when ordering the remand to this procedural stage, expressly excluded from this appellate court's cognizance a series of matters, specifically, those related to the civil aspects of the proceeding; to the simulation frauds attributed to [Name01 001]; and that pertaining to the acquittal of the accused [Name02 033] for four crimes of illicit enrichment. In addition to the foregoing, this appellate court proceeded to exclude other matters that, having not been appealed in cassation, became final, that is, the definitive dismissal granted in favor of [Name01 046] due to his death and what was ordered regarding the confiscation of the vehicle with license plate No. []. Finally, the Third Chamber also made other decisions concerning a series of topics related to this case, which, although not specified in the operative part of its resolution, must be complied with by this court, since the judgment is a logical-legal unit and, as such, must be understood integrally. For example, when resolving the issue of the statute of limitations, the Third Chamber expressly stated: “[…] the acquittal judgment for expiration of the statute of limitations for criminal action 2012-2550, issued in the proceedings by the Criminal Judgment Appeals Court, is annulled, and remand is ordered for a new proceeding as legally corresponds, this Chamber clearly establishing that, in this case, the criminal action is not time-barred.” (F. 176,431, volume XLIII, the underlining is not from the original). Another example is found in what was agreed regarding evidence No. 588. According to the cited Chamber, that evidence is lawful because its obtaining did not require the order or endorsement of a Costa Rican judge. For this reason, it annulled the second-instance judgment issued by this appellate court (with a different panel) insofar as it acquitted the accused, and ordered this court “… to conduct a new comprehensive examination of this evidence together with the remaining evidence in the case.” (F. 176,448 front, the emphasis is ours). As observed, the cassation body not only pronounced on these topics, but expressly conditioned the analysis that must be conducted with the second-instance remand. Apart from those already mentioned, there are other aspects on which the Chamber also resolved on the merits, with preclusive and declaratory force, finalizing the discussion that arose around them. These are decisions that, it is reiterated, although not included in the operative part of the cassation judgment, cannot be ignored, as requested by some of the parties during the oral hearing held at the end of September of this year, since they have been issued for the specific case by the reviewing body that resolves in the last instance. This means that we are not facing the dilemma of whether or not to accept the criteria set forth by the Third Chamber, but rather the duty to respect the limits that this jurisdictional body established for the remand to the second instance, understood as the duty to abide by the decisions it took with preclusive and declaratory character, and which, therefore, this appellate court cannot ignore or reverse. It should be noted that in a system of appeals like ours, where there are two remedies and in which the Public Prosecutor's Office (Ministerio Público) may also appeal, it is not surprising that the Third Chamber, granting a cassation appeal filed by that party, whether due to contradictory precedents, or for the non-observance or erroneous application of a substantive or procedural precept, annuls the resolution issued by the criminal judgment appeals court and confirms that of the trial court (thus, e.g., judgments No. 2014-00416 of 10:18 a.m. on March 13, 2014; No. 2013-00992 of 9:52 a.m. on August 9, 2013; 2013-0956 of 2:36 p.m. on July 31, 2013; and 2013-01814 of 4:03 p.m. on December 3, 2013, among others). In the same way, as happens in this matter, it may be that the Third Chamber, despite annulling the appellate judgment and validating some of the arguments set forth by the trial court, considers it necessary to order the remand to this procedural stage (e.g., because there are pending claims to be resolved), which in no way authorizes this court to disregard the issues that have indeed been resolved and defined. This is because the remand to the second instance does not [Name05] a new examination in the broadest sense of the term, but rather an examination that is necessarily linked to the judgment, in this case of cassation, that annulled the previous resolution. Therefore, the remand must be carried out within the limits established by that cassation pronouncement. [Name02] the things and irrespective of the criterion that this appellate court may have regarding the matters that the Chamber resolved and defined on the merits, it is concluded that as to these, we are not in a position to disagree, nor to issue a different pronouncement. Below is a recount of those decisions that condition or limit the remand to the second instance ordered by the Cassation Chamber.

III.- On what was resolved and defined (with declaratory effect) by the Third Chamber for the specific case: In Resolution No. 1847-2014 cited above, the Third Chamber pronounced on several topics that it is necessary to recapitulate, namely:

• 1)It concluded that the criminal action was not time-barred for any of the accused.
• 2)It considered evidence No. 588 lawful, since “… the order or endorsement of a Costa Rican Judge was unnecessary…”. This panel does not ignore that the previously stated criterion differs from that assumed by the Third Chamber, with a different panel, in case file No. 04-005356-0042-PE, specifically, in Resolution No. 499 of 11:45 a.m. on May 11, 2011. In that ruling, by a majority vote, the nullity of the evidence gathered in Panama through the Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama ([Name06.]) was declared, [Name02] as the evidentiary elements derived from it. However, the divergence that may arise between the aforementioned judgments is a situation that the cassation body must eventually resolve, while what corresponds to this appellate court is to examine the claims formulated by the parties based on what was decided by the Chamber in this specific case, namely, that evidence No. 588 is lawful. Finally, it is important to add here that the document presented by [Name01 158] to this court, on August 27, 2015 (cf. 176,925 front, volume XLIV) and in which, based on Article 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications, No. 7425 of August 9, 1994, he revoked the consent he had given for the banking information of the company [Name01 215] to be used, is of no importance, since the Third Chamber's decision, in the sense of considering the referred evidence valid, was not supported by said consent, thus the decision made by the right holder is completely inconsequential.
• 3)The Third Chamber also declared evidence Nos. 543, 544 and 545 lawful, which had previously been declared unlawful by this Criminal Judgment Appeals Court, with a different panel (f. 176,473 back, volume XLIII).
• 4)It dismissed the existence of a defect of lack of correlation between the accusation and the judgment regarding the conviction imposed on [Name01 006], [Name02] as the erroneous application of Article 346, subsection 3) of the Penal Code (f. 176,499 back).
• 5)It concluded that the penalty for the corrupter does not require proof of an effective agreement of wills between the active subject and the public official to be corrupted, the description of the official act requested by the corrupter (f. 176,502 back), or the verification of the conduct supposedly carried out by the public officials intended to be corrupted (f. 176,508 and 176,512 front).
• 6)It considered that the accusation formulated by the Public Prosecutor's Office (Ministerio Público) did describe which official act was requested from [Name01 001] (f. 176,502 back to 176,503 back).
• 7)It concluded that the verb "to give" contemplated in the type of the penalty for the corrupter applicable to the specific case, can include the actions of offering and promising (f. 176,507 back and 176,512 front and back); and, finally, 8) It indicated that Article 346, subsection 3) of the Penal Code contemplates a series of actions that do not contradict what is mandated in Article 26 of Law No. 6872, on Illicit Enrichment of Public Servants of June 17, 1983, in force until the enactment of Law No. 8422, Against Corruption and Illicit Enrichment in Public Office of October 6, 2004, hence the existence of one did not imply the exclusion or repeal of the other (f. 176,513 back to 176,515 back). Having made the preceding clarifications, we will proceed to resolve the filed appeals.

IV.- Given the existing relationship and for procedural economy, this panel will address jointly and firstly, the second ground of the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Name01 041], [Name02] as section two point D.-, and section three point A.-, of the appeal against the judgment filed by the accused [Name02 033], in a personal capacity. Appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Name01 041]. Second ground. Non-observance and/or erroneous application of procedural law. The challenged judgment is essentially based on unusable evidence (unlawful evidence). The court erroneously applied Articles 22, 23 and 24 of the Criminal Procedure Code and consequently, failed to observe the provisions of numerals 96, 180, 181 and 182 of the Criminal Procedure Code: “… The reasoning of the ruling is erroneous in the determination of the factual framework because it relies, to support the core aspects of the declaration of criminal liability of [Name01 041], on information obtained through the breach of due process. The total annulment of the ruling is warranted (since the same unusable information served as an essential basis for the conviction of other accused) and the remand so that a court, composed of judges different from those who previously intervened in this case, conducts a new hearing in which due process is respected…” (F. 173,091 front). As a grievance, it affirms that the ruling illegitimately declared the criminal responsibility of [Name01 041], since it relied on unusable evidence, specifically, a witness who testified at trial under a procedural advantage derived from a defective procedural activity. According to their indication, had the motions filed by several parties in the trial been resolved in accordance with the law, the cited testimonial evidence would not have been produced. According to the private defense attorneys “… in the case of the co-accused [Name01 064], the Public Prosecutor's Office (Ministerio Público) disrespected essential regulations when deciding and negotiating with him and his legal representation the suspension of the exercise of the criminal action -to which, as a consequence of the principle of mandatory prosecution, the Prosecutor's Office was subject- and, by transmitting information in an omissive and incomplete manner, caused the court to incur a procedural error (which also did not strictly follow the procedures imposed by law) so that it would order the admission of the requested prosecutorial discretion (criterio de oportunidad). Because such is the purpose of the judicially authorized prosecutorial discretion (criterio de oportunidad) in this case, [Name01 064] appeared before the sentencing Court and, under a procedural advantage improperly promised, testified at trial and provided information that the sentencing body essentially used to declare the criminal responsibility of [Name01 041] and other convicted individuals in this case. The challenged Judgment, then, is contrary to law precisely because it substantially uses the information provided by the “collaborating accused” to essentially sustain the conviction imposed…” (F. 173,092 and 173,093 front). After citing several extracts from the judgment, where the testimony of [Name01 064] is alluded to, the defense attorneys state that it was essential evidence, as the trial court itself recognizes in recital XI.-, point A). From here, the appellants set forth a series of arguments to explain why they consider the granting of a prosecutorial discretion (criterio de oportunidad) in favor of [Name01 064] and the subsequent use of the information he provided to be contrary to law: “ …Description of Procedural Actions: FIRST: On January 31, 2006, the person who figured as a collaborating co-accused in the trial, Mr. [Name01 064] , his trusted defense attorney EWALD ACUÑA BLANCO, the assistant prosecutors CRISS GONZÁLEZ UGALDE and CARLOS MORALES CHINCHILLA, [Name02] as the Deputy Prosecutor WARNER MOLINA RUÍZ, signed an agreement for the application of a prosecutorial discretion (criterio de oportunidad), as established by the provision of Article 22, subsection b) of the Criminal Procedure Code (as stated in evidence 776, legitimately incorporated in due course into the Trial). In the same sense, see what is recorded in the objected ruling on folio 1653. SECOND: In accordance with said agreement, the Public Prosecutor's Office (Ministerio Público) committed to requesting on behalf of the collaborating accused [Name01 064] that his prosecution in case 04-006835-647-PE be totally dispensed with. This was conditioned on the collaborating accused [Name01 064] rendering at trial -as indeed occurred- a statement similar to that previously given before the Public Prosecutor's Office (Ministerio Público) and which constitutes the ANNEX of the mentioned prosecutorial discretion (criterio de oportunidad). Likewise, that said statement would not be disproven by other evidentiary elements that would make it appear false. And the prosecutorial action was also conditioned on the information provided by [Name01 064] allowing to prove at trial the participation -among others- of the accused in this same case [Name01 041], [Name01 078], [Name02 033] and [Name01 046]. THIRD: For the materialization of the referred agreement, the Public Prosecutor's Office (Ministerio Público), represented in that act by Prosecutors Marcela Morera Molina and Amelia Robinson Molina, petitioned in a brief dated May 30, 2007, before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José, for the application of prosecutorial discretion (criterio de oportunidad) due to collaboration. In said brief (which we understand also forms part of evidence 776), the Prosecutor's Office 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 [Name02] because on folio 1 of the referred brief the Prosecutor's Office records: “As a result of that investigation, the facts described below are considered to be established.” From which it follows that these are the facts being investigated in case 04-6835-647-PE. FOURTH: Similarly, also contained in the Case File for Application of Prosecutorial Discretion (Legajo de Aplicación del Criterio de Oportunidad) is the brief dated February 1, 2006, in which Mr. Warner Molina Ruiz, in his capacity as Deputy Prosecutor, authorizes the application of prosecutorial discretion (criterio de oportunidad) in accordance with subsection b) of Article 22 of the Criminal Procedure Code in favor of the accused [Name01 064]. In said document, the Deputy Prosecutor makes synthetical reference to the facts under investigation in that case (specifically on folios 2 and 3 -folios 33 and 34 of the Case File Legajo- and on folio 8 -39 of the Case File Legajo). FIFTH: The referred actions led to the issuance of the resolution of 9:51 a.m. on June 1, 2007, signed by Ms. 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 Recital I, called Statement of Facts (Relación de Hechos), exactly the same as the Prosecutor's Office describes in the section with the same name, from point 1) to point 116). In Recital 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 Recital III called On the Merits (Sobre el Fondo) is included, in which the Judge points out the nature of the requested prosecutorial discretion (criterio de oportunidad) and makes an examination of the legal requirements for its admissibility. As the resolution practically lacks entirely of due reasoning, it suffices to point out that it refers, as facts or conducts appreciated and assessed for the determination of greater culpability, to the conduct of [Name01 064] and the conduct of [Name01 033]. Additionally, the jurisdictional decision makes reference to the facts investigated in this case in relation to [Name01 041], [Name01 078], [Name01 046] and [Name01 033], which are clearly linked to the contracting of the 400,000 cellular telephone lines that was widely heard about in the oral and public trial that preceded the issuance of the Judgment now being challenged…” (F. 173,096 to 173,099 front). For the appellants, the prosecutor's office must provide the jurisdictional authority with complete information so that it, in turn, can control the legality of the prosecutorial discretion (criterio de oportunidad) granted, especially to assess whether the reproach that can be made to the collaborator is of lesser magnitude. Now, the factual framework provided by the prosecutorial representation to Ms. Ana Gabriela Sánchez Arroyo, in the brief dated May 30, 2007, through which it requested the application of prosecutorial discretion (criterio de oportunidad) for collaboration in favor of the accused [Name01 064], did not fully correspond to what was being investigated at that time, since by then, there was evidence linking [Name01 064] to other questionable acts: “… Indeed, by that time in the investigation, several statements given by the co-accused [Name02 064], [Name02] as several expert reports from the Economic and Financial Crimes Section of the Judicial Investigation Organization had already been added to the respective case file; among others, Report 297-DEF-540-04/05 in which, at the point identified as 4.8 point 12., the following is established: “Lastly, he referred 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 [Name01] of Mrs. [Name02 080], which he said he had received from [Name 046], supposedly, for collection efforts he had made before [Name02 091], at the request of both the latter and [Name01 033]. On this point it is worth commenting, that in other of his statements, [Name01 064] had briefly referred to other sums of money received from [Name01 046]: a check for U.S. $4,000.00 and a certificate for U.S. $9,062.50. Likewise, he mentioned other royalties for U.S. $110,207.00 and U.S. $29,833.95, received from [Name01 083]., and [Name 085]., through [Name 068].” Likewise, the mentioned report points out in point 5.11 that, although [Name01 064] 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, it is concluded in the expert report that part of the sums transferred by [Name 058]., to [Name01 064] was also related to other contracts signed by ICE, for the purchase of fixed switching centers [Name 091]. It is important to highlight -following this same line of exposition- that [Name01 064] 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, [Name01 064] confesses before the Prosecutor's Office having received monies or improper payments in relation to the company [Name 090]. 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 linked to the exercise of his public office. It is clear, then, that by the date on which the Prosecutor's Office petitioned the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José for the application of prosecutorial discretion (criterio de oportunidad) for collaboration in favor of [Name01 064], the representation of the Public Prosecutor's Office (Ministerio Público) had sufficient information that allowed it to fully know about the possible participation of the collaborating accused [Name01 064] in other criminal acts different from those linked to the contract for the 400,000 cellular lines. However, this information, referring to facts different from those directly linked to the contract for the 400,000 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 Prosecutor's Office for the approval of the prosecutorial discretion (criterio de oportunidad) negotiated with [Name01 064], [Name02] as in the statement of facts contained in the resolution issued on June 1, 2007, which approves the mentioned institute. We consider it legitimate to affirm that the other mentioned facts in which [Name01 064] participates, different from those related to the mentioned ICE contract, were not informed as was required to the jurisdictional authority. But it was precisely the information that became known during the Trial about the agreement for the application of prosecutorial discretion (criterio de oportunidad) that, together with the statements of attorney Maribel Bustillo Piedra, who in her capacity as Prosecutor of the Miscellaneous Crimes Unit of the Public Prosecutor's Office (Ministerio Público) put in writing in the brief dated July 25, 2008, which, together with the resolution of 1:40 p.m. on May 18, 2009, appear added to case file 08-000032615-PE (photocopies of which are attached to this Cassation Appeal and from now on we request they be brought ad effectum videndi and as evidence for the decision of this cassation ground) what, along with the statements spontaneously made by attorney Criss González before public opinion and that at some point were informed in this Trial for being related to what was the subject of negotiation in the prosecutorial discretion (criterio de oportunidad) agreed with [Name01 064], allows concluding without a doubt and without this being debatable, that what was opportunely negotiated by the Prosecutor's Office with the defendant [Name01 064] encompasses the exercise of criminal action regarding the other investigated criminal acts that are distinct from those related to the contracting of the 400,000 cellular telephone lines ...” (F. 173,101 to 173,104 front, the transcription is literal). The appellants quote what attorney Bustillo Piedra indicated in the referred brief, namely: “In the agreement in question, it can be observed that the Public Prosecutor's Office (Ministerio Público), in the exercise of its conferred powers, undertakes to request on behalf of [Name01 064], that criminal prosecution be dispensed with, not only for the fact related to the money improperly received from the company [Name 091] on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand GSM mobile technology lines, but for 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 they all form part of the investigation under the single number indicated, so much so, that the accused was questioned for all those facts and well before the application of this agreement, on September 30, 2004.” (F. 173,104 and 173,105 front). The appellants add that from the brief dated July 25, 2008, a photocopy of which they attach and which appears in the case file that has been offered ad effectum videndi, what is indicated in this ground is extracted. The agreement between the Public Prosecutor's Office (Ministerio Público) and [Name01 064] was to dispense with the exercise of criminal action in relation to all the facts known and investigated by the prosecutor's office at the time that negotiation took place, that is, as of January 31, 2006. However, when jurisdictional authorization was requested for the application of prosecutorial discretion (criterio de oportunidad), it was omitted to inform about the facts under investigation in case file number 04-6835-647-PE. Attorneys Ramos and Morales say they intend to demonstrate to this panel: that those facts were more than those described in the statement originally provided by the prosecutorial representation when formulating the request for the application of prosecutorial discretion (criterio de oportunidad); and that said omission is contrary to the Political Constitution and the Criminal Procedure Code, because the prosecutor's office was obliged to provide the judicial body with all the information to decide. The fact that the information was incomplete constitutes a defect that in turn allowed the approval of the prosecutorial discretion (criterio de oportunidad) that favored [Name01 064]. The private defense attorneys add that these same procedural actions of the Public Prosecutor's Office (Ministerio Público), together with the resolution of 9:51 a.m., on June 1, 2007 (namely, the one that agrees to the application of prosecutorial discretion (criterio de oportunidad) in favor of [Name01 064] and orders the suspension of the exercise of the public criminal action), could not constitute the premise that validated the jurisdictional decision contained in the resolution of 1:30 p.m. on September 2, 2010, issued interlocutorily during the trial and that legitimized, by a majority decision, the statement given by [Name01 064] at trial, a statement that is contrary to what is said in Article 96 of the Criminal Procedure Code, since, they reiterate, the advantage offered to [Name01 064] as a consequence of the jurisdictional approval for the application of prosecutorial discretion (criterio de oportunidad) did not conform to the legal provisions. After making an extensive transcription of what was said by the lower court on the topic (see folios 173,107 to 173,113 front, volume XL), the appellants conclude that the court considered it unnecessary to determine whether the public criminal action that should have been exercised in relation to all the criminal acts committed and attributable to [Name01 064] was illegitimately abandoned by the prosecutor's office, based on the effects typical of the prosecutorial discretion (criterio de oportunidad) improperly granted. This despite the impact that circumstance had when establishing the legitimacy of the statement of [Name01 064] as a source of information, which was later used to convict [Name01 041]. The court, therefore, closed its eyes to the reality shown to it, and allowed the consolidation of a series of undesirable effects of the defective procedural act. Judge Camacho Morales expressed himself in a different sense, which the appellants share. After transcribing what was indicated by this professional, the appellants set forth what, from their perspective, are the main conclusions of the minority vote: “1. Incomplete request made by the Prosecutor's Office for the Judge to approve the application of prosecutorial discretion (criterio de oportunidad) in the specific case and under the terms indicated in Article 22, subsection b) of the Criminal Procedure Code; 2. Jurisdictional resolution lacking due reasoning that approves the application of prosecutorial discretion (criterio de oportunidad) and justifies the testimony of [Name01 064] at trial; 3. Statement given at trial by the co-accused [Name01 064] improperly protected by the promise of a procedurally impossible advantage to be upheld. 4. Use of information coming exclusively from unlawful evidence to essentially ground the factual framework used to convict -among others- [Name01 041]...” (F. 173,131 and 173,132 front). For the defense, as a result of the foregoing, the following is required: to declare this appeal granted; to declare that the request for the application of prosecutorial discretion (criterio de oportunidad) contained in the brief on folio 1 and following of the respective case file (evidence No. 776) constitutes a defective procedural action; to declare illegitimate, for being based essentially on defectively executed procedural acts, the resolution of 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, signed by attorney Ana Gabriela Sánchez Arroyo; to dimension the effects of such declarations and also conclude that the resolution of the trial court of 1:30 p.m. on September 2, 2010, is illegitimate, insofar as it [Name07] the production of the testimony of [Name01 064] at trial.

Likewise, it must be declared that the judgment should not have relied on the statement given in the adversarial hearing by [Nombre02 064] and that its annulment is appropriate. They request that the ground be admitted and the verdict annulled, ordering the referral back to the trial stage for a new proceeding in accordance with the law. Finally, it is important to note that, of the evidence offered by the appellants to demonstrate the defect they denounce, the case file 08-000032-615-PE, followed against Nombre08, where he was denounced for the alleged commission of the crime of breach of duties, was admitted at this procedural stage, as were the photocopies of it provided by Nombre02.

Appeal of the judgment filed by [Nombre02 033]. Second Section. Disagreement with the incorporation and assessment of the evidence. Gross errors in the incorporation and assessment of the evidence by the majority vote due to a lack of precise and detailed determination of facts proven by the court. The majority vote suffers from a lack of reasoning, contradictory reasoning, and disregard of the rules of sound criticism with respect to evidentiary means and elements of decisive value. As grounds for the claim, articles 142, 184, 361 subsection b), 363 subsection c), 458, and 459 of the Code of Criminal Procedure are cited. D. Assessment of the statement as a suspect of the confessed [Nombre02 064]. The majority vote acknowledged that the statement of [Nombre01 064] is not evidence; however, it accepted his word without any evidence or indication to support it on substantial points to be able to connect [Nombre01 033] to the illicit act. For this reason, the reasoning of the judgment is illegitimate, violates the rules of logic, experience, and psychology, and is based on illegal evidence. It causes irreparable harm by illegitimately taking the statement of a confessed accused as true, the veracity of which is not corroborated by any other evidence. He requests that the verdict be annulled and his acquittal be declared. The trial court recognizes that, in light of the accused's statement, it is necessary to examine it in light of other evidentiary means. This is the line expressed by the Constitutional Chamber in resolution No. 12090-09. Now, what happens is that, when assessing the testimony of [Nombre01 064], the judges forget the foregoing. While it is true that it is not necessary to verify every aspect of the account, a set of converging indications about the core of the confessed accused's statement is required. To give credibility to [Nombre01 064], the court affirms that: a) the subsequent payments confirm the instigation. For the appellant, even admitting their existence, these payments could have been for other reasons (loans, donations without consideration, illicit enrichment, payments for consummated acts, for prior debts, etc.). That is, their existence proves nothing about the crime. b) There was a criminal plan by [Nombre01 091] whose existence is supported by the testimony of [Nombre01 064]. The appellant considers that this says nothing about his participation as an instigator. [Nombre01 064] acknowledged having accepted [Nombre01 091]'s offer before meeting with [Nombre01 033] (a meeting whose existence [Nombre01 033] also calls into question). Nombre02 las cosas, what [Nombre01 064] may have reflected upon when he got home is something personal, and furthermore, what [Nombre01 064] stated was that he might need help to carry out the plan, not that he required convincing. Both [Nombre01 064] and the witnesses were in agreement in saying that [Nombre01 033] never requested anything from a director or official of ICE regarding the tender for the 400,000 GSM lines, or in relation to any purchase or contract. Finally, despite the fact that [Nombre01 064] said he had sought out the appellant in case he eventually needed his help, he never stated that he asked him for it, or at least, that he informed him of the conditions they supposedly would have requested him to fulfill. Moreover, it is absurd to understand that the meeting between [Nombre01 033] and [Nombre01 064] occurred just because all the presumed participants were in Costa Rica (according to the entry and exit records of the country for [Nombre01 064], [Nombre01 041], [Nombre01 078], and [Nombre02 033]). Even his defense attorney demonstrated that [Nombre02 078] did not leave the country on a Saturday at the end of 2000 or the beginning of 2001, as [Nombre02 064] indicated. In addition, the court distorted what was said by the challenger's defense. It was never stated that [Nombre01 033] was not in the national territory. What Mr. Gairaud said was that it had probably been stated that the meeting occurred at the end of November or the beginning of December because those were dates when his client was in Costa Rica. The appeal states that the judges exhibit "blind credibility" towards [Nombre01 064], despite all the inconsistencies he incurs: "... it is even more unjustified when the lady judges were eyewitnesses to the statements of [Nombre01 064] regarding the unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Nombre01 064] and corroborated by the OIJ… The bank accounts in colones and other possible accounts of [Nombre01 064] in his name or his wife's name were not investigated because the Public Prosecutor's Office did not request it,… The other possible crimes of [Nombre01 064] were not investigated either, although they were reported to the Public Prosecutor's Office, because the prosecutors did not request that they be investigated… The lady judges were aware of all this, but this did not affect their total credibility, proof against any contradiction or error in the testimony of [Nombre01 064]. One could argue to me that these were unjudged acts and therefore could not be used by the court because it would break the principle of innocence. But then why is it argued against me that I did not prove a different nature for the imputed supposed payments from [Nombre01 064]? When is it that the principle of innocence does not apply against me, but only for the confessed accused [Nombre01 064]?" (F. 172,437 and 172,438 front). Judge Camacho Morales, in his dissenting vote, considers that a prior promise by the alleged corrupters was not demonstrated and also explains how the dates on which this promise was situated are not compatible with the tasks supposedly entrusted to [Nombre01 064]. After citing several extracts from the judgment (both from the dissenting vote and the majority vote), the appellant affirms that the court accepted [Nombre01 064]'s lies despite the fact that to do so, it had to break the rules of sound criticism. Regarding the criterion of opportunity granted to [Nombre01 064], the appellant questions that the judges refused to rule on the legality and judicial approval of that criterion. Likewise, although the judgment argued that [Nombre01 064] wanted to cooperate since his first statement in September 2004, it was not taken into account that in that account, he described acts totally contrary to those he accepted in May 2005, when he reached an agreement to apply an abbreviated procedure, acts that are practically identical to those included for the criterion of opportunity agreement. Nor was it taken into account that the way in which [Nombre01 064] was treated in that first statement is different from the way the other accused were treated. This shows that, from the very beginning, [Nombre01 064] had an arrangement with the Public Prosecutor's Office. The majority vote points out that although [Nombre01 064] went unpunished for his actions, that was not the result of his decision, but of the legislative approval of the mechanism and the approval that other judges granted in that regard. [Nombre01 033] criticizes the previous assertion, believing that the trial court had the duty to rule on the approval of the criterion of opportunity, and they refused to do so. The judges naively believe that [Nombre01 064] collaborated motivated by supposed patriotic reasons, to defend morality in public function, and affirm that if he went unpunished, it is because of the complaint filed against him by Messrs. Fernando Apuy and Freddy Coto, which did not allow proceeding with an abbreviated trial that implied prison for [Nombre01 064]. But this is not so. It is on record in the case file that the negotiated sentence of 4 years had been served with the house arrest imposed on [Nombre01 064]. Furthermore, it is evident that Apuy and Coto never opposed the abbreviated procedure, but rather it was the intransigence of [Nombre01 064]'s defense attorney that prevented an agreement from being reached between the parties (evidence No. 309). The challenger adds that the Public Prosecutor's Office, instead of partially refraining from criminal prosecution, limiting itself to not accusing [Nombre01 064] for the acts related to the four hundred thousand lines, completely refrained from criminal prosecution, including other crimes confessed by him. The majority vote said nothing about the Public Prosecutor's Office's refusal to investigate those other crimes, which were verified through the accounting reports of the O.Nombre09. Nor was anything said regarding the circumstances in which these acts occurred, or the multimillion-dollar sums that remained in the possession of [Nombre02 064] after the criterion of opportunity. The tendency to favor this person in everything has been clear. He reiterates that the court did not rigorously assess this statement. It took it as the only truth, setting aside lies and contradictions. He affirms that the trial court convicted him in advance and showed animosity towards him, when it alluded to a duty of loyalty that prevails in criminal organizations; when it prevented him from questioning an expert; and when, without basis, it said that [Nombre01 064] was a person trusted by the appellant. He insists that the tendency to favor [Nombre01 064] was clear, for example, when it was affirmed that the latter did not accept further appointments in the government, or when it refused to hear statements about his other crimes. The court also confused the relationships of ICE with the presidency of the Republic. The purchase or rental of equipment is the task of ICE, a detail that leaves page after page of the majority vote's argumentation without support. The reference to breakfasts, lunches, and meals given by [Nombre01 091] to public officials, as hundreds of companies do daily, at most demonstrates that [Nombre01 064] received money from [Nombre01 091], but that says nothing about how [Nombre01 064] agreed with [Nombre01 091], or about the meetings in [Nombre01 094] or at the appellant's house. On page 1,679 of the judgment, it is maintained that, according to [Nombre01 064], to receive the bribe, all the Nombre10 of the board of directors of ICE had to be involved, and that for him, this was difficult to achieve. However, this is contradictory to what was stated by [Nombre01 064] himself and that the judges record on page 1,675 of the verdict, to the effect that what was requested by [Nombre01 091] was for the tender to be issued, that it was not necessary for [Nombre01 064] to speak with anyone, it being enough that the tender was not aborted. It is also contradictory to what was said by the cooperating accused about the meeting at the appellant's house, since in it he did not even mention the three tasks entrusted by [Nombre01 091], nor did he request any help from [Nombre01 033]. On the other hand, the appellant affirms that, contrary to what is stated in the judgment, it was shown that officials from various technical and administrative instances of ICE and its seven directors participated in the process to migrate to GSM. Nombre02 las cosas, it is not possible to attribute that migration to the actions of two directors colluding with [Nombre01 091], especially if that decision was already clear as of May and June 2000 and was announced on October 6 by the executive presidency, months before the alleged meetings of [Nombre01 091] with those two directors supposedly took place. Now, on pages 1,162 and 1,163 of the trial judgment, the court tries to explain this, affirming that once the announcement was made by [Nombre01 095], it makes sense that in the memorandum sent by [Nombre01 098] to [Nombre01 041] on November 10, 2000, he stated that although that announcement was positive, it was necessary to maintain pressure and not allow the interests of Ericsson and Lucent to continue being favored, since it seemed that ICE intended a new purchase of 200 thousand lines to expand the current ones, with TDMA technology. According to the judgment, this explains why the corrupters did not consider the announced technology migration a fact for December 2001. Faced with this, the appellant questions how a recommendation of basic precaution not to neglect things and to maintain pressure allows one to conclude that the promise took place, setting aside that the direct purchase of TDMA had been suspended and the migration of technology to GSM had been declared because it was more advantageous. The court says that even by December 2000, TDMA technology continued to be contracted, so the defense is not correct in saying that since October of that year the migration had already been made. Against this assertion, the challenger replies that no analysis was made of how they went from contracting 100% TDMA technology to only 33%, and GSM technology was introduced, and that it was also convenient to satisfy the accumulated demand. Another sign of the "subconscious in the strange reasoning of the majority vote," indicates the appellant, is seen on pages 1,686 and following, where it is stated that the payments from [Nombre01 091] to [Nombre01 064] and the transfers from [Nombre01 064] to [Nombre01 033] are proof of both the meetings and the agreement to commit crimes that arose from those encounters. Such a conclusion is absurd, it is indicated in the appeal, because it does not derive from the premises: “… to claim that those movements of resources confirm the meetings in [Nombre01 094] and in my house, is logically the same as pretending that if [Nombre02 064] steals from ICE, and then [Nombre01 091] gives a bribe to [Nombre01 064] and [Nombre01 064] transfers some resources to me, that would mean that [Nombre01 064] met with [Nombre01 091] who offered him money for stealing from ICE, and then with me whom I instigated to do it. Again I must exclaim: For heaven’s sake!” (F. 172,448 front). Nombre11 in this line of thought, he points out that between February and March 2001, when the process for the tender of the 400 thousand GSM cellular lines is already underway, due to the non-acceptance by the Comptroller's Office of the direct purchase of the 600 thousand cellular lines that ICE had agreed the previous December, efforts are made to accelerate a direct purchase for 160 thousand GSM lines, in order to meet demand. According to the majority vote, that direct contracting represented for [Nombre01 091] a blank check drawn by ICE, because it finalized the migration and saved him from participating in a public bidding process. From this, the court deduces that [Nombre01 064]'s action was not contrary to the commitments assumed, as the defense maintained. Against this, [Nombre01 033] questions why, two months earlier, when according to [Nombre01 064], he agreed with [Nombre01 091], the agreement did not contemplate a direct purchase but a tender. The majority vote also said that because [Nombre01 068] did not concur with his vote to favor the direct purchase of the 160 thousand GSM lines, the agreement between [Nombre01 068] and [Nombre01 091] was reached. Nombre02 las cosas, asks the appellant, given that [Nombre01 064] did not attend the first meeting where that direct purchase was approved, wouldn't that be why [Nombre01 091] made him the offer? On this point, the appellant insists on a "powerful subconscious predisposition" of the court, aimed at drawing conclusions contrary to logic and common sense. As a final sample of the above, he cites page 1,703 of the decision, where despite the fact that it is acknowledged that the bribe received by [Nombre01 064] is related to contracts signed by ICE for the purchase of fixed-line switches, the court understands that the payments for fixed-line switches are for the migration to GSM. He concludes his exposition repeating that the majority decision relied on the statement of [Nombre01 064], a person who took advantage of the impunity provided by the criterion of opportunity and an activity full of irregularities by the Public Prosecutor's Office, an organ that did not investigate other crimes on his part. He emphasizes that [Nombre01 064] accepted the proposal from the very first moment, just as he had been doing in other cases that they did not want to investigate, and that he never required to be determined by another person. He adds: "There is no way to classify the acts of which [Nombre01 064] accuses me and the facts described in the accusation as instigation to aggravated corruption by reason of an improper bribery, which makes my conduct atypical and determines a violation of the substantive law of the penal code, which demands a dismissal or acquittal in my favor..." (F. 172,450 and 172,451 front).

Third Section. Disagreement with the legal reasoning. A. Criterion of opportunity. The majority vote is based on illegal evidence, specifically on the statement given by [Nombre01 064] as a supposed confessed cooperating accused, protected by a criterion of opportunity illegally requested and approved, and on de facto actions of the Public Prosecutor's Office that, without judicial approval, illegitimately granted him impunity for other crimes acknowledged by himself. Regarding the grievance, he explains that a mechanism applied irregularly was accepted, with a very serious violation of the law and without which the case is unsustainable. He requests that the statement given by [Nombre01 064] in the debate be annulled and consequently, since the judgment lacks support, the conviction be annulled and he be acquitted of the crime charged. After pointing out that several rules were violated when granting the criterion of opportunity, he indicates that the only thing that exists against him is the statement of [Nombre01 064], which is not evidence. Furthermore, in the video it can be seen that it is [Nombre01 064]'s defense attorney who dictates the answers he must give in the debate. The lady judges, in a vote prior to the judgment (at 1:30 p.m. on September 2, 2010), had already declared themselves incompetent to resolve the protest for defective procedural activity that the defense raised against the procedure given to the criterion of opportunity. In contrast, Judge Camacho Morales, in the minority, said that the issue was controllable, concluding that in this matter the criterion was granted irregularly (cf. the judgment, minority vote, pages 1,981 to 1,987). With an extensive transcription of what was said in that dissenting vote, the appellant emphasizes that the resolution granting it lacked reasoning; that the issue of the lesser reproach attributable to the collaborator benefited by the criterion compared to the accused who is harmed by its application was not adequately assessed; that they should have assessed the crimes that were left uninvestigated and that were confessed by [Nombre01 064] and corroborated by the Nombre12. (crimes that, moreover, were vainly requested by the prosecutors to investigate and that were hidden from the judge who approved the criterion of opportunity). He affirms that it was during the debate when they had access for the first time to what was negotiated on the occasion of the criterion, determining that it did not include more than the facts related to the 400 thousand GSM lines, which is contradictory to what was said by Prosecutor Maribel Bustillo, when requesting that "they desist" from the complaint filed against Nombre08'anese for breach of duties and personal favoritism, for not investigating other payments made to [Nombre01 064]. On that occasion, the prosecutor acknowledged that the criterion encompassed criminal acts other than the contracting of the 400 thousand lines. Now, in her arguments on the subject, Prosecutor Greysa Barrientos said that to compare the reproach of the cooperating accused and the other defendants, only the case concerning the 400 thousand GSM lines should be taken into account, a thesis that the majority vote accepted. Prosecutor Criss González made statements to the press, indicating that the criterion did not encompass other acts committed by [Nombre01 064], which is a simple reading of the document in which the Prosecutor's Office requested judicial authorization to apply the mechanism, of the resolution of the judge who approved it, and of the agreement signed with [Nombre01 064]. Judge Camacho Morales also pointed out the inappropriateness of the monetary arrangements made by the Public Ethics Attorney's Office, as [Nombre01 064] was legitimized to keep multimillion-dollar sums in dollars. Furthermore, Judge Camacho's calculation fell short because it did not take into account other income that [Nombre01 064] confessed but that the Public Prosecutor's Office refused to investigate, meaning that it has been the State itself that has allowed him to keep more than one and a half million dollars. He requests that the nullity of the judgment be decreed and a dismissal or his acquittal be ordered.

V.- The claims are granted: For the purpose of making this exposition as clear as possible, this chamber will divide the analysis into several sections, namely: 1) Jurisdiction of the trial court to verify compliance with the legal requirements contemplated for applying a criterion of opportunity. 2) Examination of the criterion of opportunity granted to [Nombre01 064]. Defects present in its procedure and in the resolution that authorized it. 3) Hypothetical inclusion of the conduct omitted by the requesting organ when applying for the criterion of opportunity, and a new assessment of the reproach that can be formulated regarding the conduct imputed to [Nombre01 064], compared to that of other accused parties. Weighing of the arguments put forth by the trial court on the particular subject. 4) Credibility that can be granted to the statement of the cooperating accused.

• 1)Jurisdiction of the trial court to verify compliance with the legal requirements contemplated for applying a criterion of opportunity. By majority and through a resolution at 1:30 p.m. on September 2, 2010 (cf. folios 13,676 to 13,736 verso of volume XXVIII), the trial court refused to hear the protests formulated against the criterion of opportunity applied, regarding its "appropriateness or inappropriateness" and the possible "successes or failures" of the authorizing resolution issued by the criminal judge. It is a resolution - that of the trial court - which, being extremely extensive, is not advisable to transcribe, however, it can be synthesized as follows: i) The judge of the preparatory or intermediate procedure is the only one competent to exercise jurisdictional control over the application of the criterion of opportunity [in particular, that contemplated in subsection b) of numeral 22 of the Code of Criminal Procedure] and its decriminalizing effects. The application for its application must be presented before the court of the preparatory or intermediate stage. Furthermore, due to its complexity, once its application is authorized, the decriminalizing consequence is subject to the fulfillment of the suspensive condition, with the criminal judge subsequently being responsible for evaluating the effectiveness of the collaboration and the definitive resolution of the matter. In the trial phase, the court must ensure the legality of the reception of the collaborator's account and its assessment in accordance with the rules of sound criticism. ii) The trial court does not have jurisdiction to issue a pronouncement on the implementation of the criterion of opportunity, since it only hears the matter once the opening of trial has been declared. The trial court assures that Nombre02 has been considered by the Third Chamber, since: “…not even in cases where the criterion of opportunity has not been processed in favor of a person who appears to give a statement at the debate, has said cassation court considered that it corresponds to the trial court to evaluate the prerequisites for its appropriateness, nor to issue such pronouncement in substitution of the criminal judge, abstracting, even from the jurisdiction of the trial judge, any assessment regarding the collaboration agreement (see resolutions No. 392-1999 and No. 795-2009 of the Third Chamber). Contrarily, in those cases, the indicated cassation court has determined that because control was not exercised by the criminal judge, it is not possible to receive the deponent in the debate (e.g., votes No. 795-2009 and No. 1061-2008 of the Third Chamber), making it completely clear that the criminal judge is the only one competent to carry out the referenced task.” (F. 13,681 front). Therefore, it cannot be intended that the trial court define the fate of a criterion of opportunity that has already been resolved and on which the statement of [Nombre01 064] was admitted in the debate. iii) If the trial court decided to examine the decision that accepted the criterion of opportunity to evaluate its decriminalizing effects, it would be arrogating knowledge of a matter that is pending before another jurisdictional organ, which is prohibited by articles 11 and 155 of the Political Constitution and 4 of the Organic Law of the Judicial Branch, according to which judges must fulfill the duties imposed by law and not arrogate faculties that have not been granted to them. Similarly, such a procedure would affect various principles and guarantees (legality, natural judge, judicial independence, impartiality, and due process). The court cannot hear protests aimed at invalidating the criterion of opportunity already granted without the legislator authorizing it to do so, to approve or reject prosecutorial requests to apply the criterion, to control the action of the jurisdictional organ in charge of that task, or to hear through the appeal remedy the objections of the parties against that decision of the criminal judge. Nor did the legislator provide for vertical control in the case of this type of resolutions, a situation that the Constitutional Chamber justified in resolution No. 12090-2009. It is the statement given by the benefited person and not the resolution approving the criterion, that must be analyzed by the trial court and questioned by the parties. iv) Unlike what happens with other resolutions (e.g., the order for the opening of trial, the denial of a dismissal motion, or the rejection of a "nullity incident") that are processed within the same case, in the case of the criterion of opportunity, an autonomous and diverse procedure is articulated in which it is discussed whether or not its application is appropriate (votes No. 1119-2005 of the Constitutional Chamber and No. 114-2006 and 404-2006, both of the Third Chamber). While the first decisions cited cannot be appealed, because their discussion is feasible in later stages of the process (what is known as horizontal control), in the case of the criterion of opportunity, the dismissal that might be issued in favor of the collaborator can be appealed. For this reason, maintaining that the absence of an appeal against the resolution that authorized the criterion of opportunity opens the door to a kind of horizontal control during the debate is incorrect, as the trial court is not competent to resolve that issue, given that vertical control is provided for in relation to the dismissal that may eventually be issued. v) Neither the trial court nor the cassation court can control the legality of the decriminalizing effects of the criterion of opportunity, since this concerns the criminal judge. A different matter is the evacuation of the evidence and its assessment, which is the province of the trial court and its supervisor. The court that authorized the criterion is only subject to the legal system, and its decision cannot be subject to a subsequent assessment by the trial court, when the legislator has not provided for it that way; vi) The impartiality of the trial court may be affected if it assesses the prerequisites for the appropriateness of the criterion of opportunity. The accusation is what describes the charged acts and is the basis on which the trial must be conducted. The trial is carried out in relation to specifically accused persons, not over others with a different status (arts. 361, 363, and 365 of the C.P.P.). Therefore, the collaborator does not appear as an accused in the case, but rather as a source of evidence. His statement must be assessed individually and in conjunction with the other evidence, but not to decide on his criminal responsibility, nor to contrast that responsibility with that attributed to the other accused. This is an additional reason for the legislator to have decided to remove from the jurisdiction of the trial court the assessment of the decriminalizing effects of the mechanism, as it cannot hear about a mechanism already ordered by another jurisdictional organ, applied to someone who is not an accused in the case under examination. vii) With convoluted wording, the trial court argues that the criterion of opportunity is not technically a means of proof. Its nature is not evidentiary, but decriminalizing. When the collaboration commitment consists of testifying during the debate, it will only be then that the statement assumes the character of an element of evidence. The channel through which said manifestations are received by the trial court is the means of proof, which for technical reasons can never be the procedure followed for the approval of the criterion itself. In other words, the procedure carried out to obtain the statement does not constitute a means of proof.

Name02 interprets a quo the resolution No. 6808-2002 of the Constitutional Chamber (Sala Constitucional) when it states that the trial court is competent to exercise the control of legality of the aforementioned instrument, that is, only to review the concurrence of the legal requirements for the application of the institute, but not to decide whether the indicated criterion should have been granted or not, or other issues related to the decriminalizing effects derived from it. Although the constitutional court points out that this control corresponds to the trial court, the fact is that apart from the fact that numeral 24 of the Code of Criminal Procedure (Código Procesal Penal) provides otherwise, in that particular case the issue addressed by the Constitutional Chamber was the provisional nature of the effects of the collaboration agreement and not that related to the competent body to decide on the waiver of criminal prosecution. It is also an isolated pronouncement, prior to two different and analogous ones (Nos. 12090-2009 and 1119-2005), which do not confer similar scope to the control that the trial court must carry out, apart from the fact that the last two votes, together with 2662-2001, are binding. viii) The procedure related to the application of the opportunity criterion (criterio de oportunidad) is independent of the process in which the collaborator must give his statement. Furthermore, it does not involve a definitive and irreproducible act, nor does it imply the taking of anticipated evidence (as happens, e.g., with raids, or the intervention of communications), since the collaborator's statement must be given during the trial. Therefore, it can be assessed by the trial court. In the same way, in the mentioned cases, the legality of the elements of conviction is not made dependent on the issuance of a prior judgment on the charged conduct, or the guilt of the implicated persons—as does happen with the criterion—hence the treatment given to it by the legislator is different. ix) It is not for the court to examine, to confirm or discard, the resolution of the criminal judge who authorized the application of the criterion (namely, the resolution of 9:51 a.m. on June 1, 2007, visible at folios 41 to 89 of the separate file where it was processed). x) The application of the opportunity criterion is regulated. Regarding the scope of jurisdictional control, whether it is only regarding compliance with the formalities provided in the law, or also covers requirements of an evaluative or substantial nature—e.g., verifying the concept of lesser reproachability (menor reprochabilidad)—the trial court understands that the cited control is limited to the verification of formal or legal requirements, excluding evaluative ones, without the jurisdictional decision being able to substitute that of the Prosecutor's Office (fiscalía), nor invade its power over the convenience or opportunity of the measure, nor examine aspects specific to the prosecutorial function. As support for its position, it cites several resolutions of the Constitutional Chamber, v.g., numbers 2662-2001, 12090-2009, 6808-2002 and 1119-2005, Name02 as respective rulings of the Third Chamber (Sala Tercera), specifically, No. 795-2009—in which it was affirmed that the control covers substantial assumptions—and No. 450-2004, in which the criterion set forth by the Constitutional Chamber, which the trial court shares, was adopted. The a quo adds that, in line with the adopted democratic model, essential functions cannot be concentrated in a single body, but must be distributed and their exercise controlled. From this perspective, it could not be admitted that the criterion of the criminal judge prevails over that of the Public Prosecutor's Office (Ministerio Público) regarding the investigation and the exercise of criminal prosecution. Now regarding the control that the trial court must carry out, it is insisted that it must be that corresponding to the evidence received in the trial. The collaborator's deposition (deposición), given live in the adversarial proceeding, in the presence of the parties, is what has the status of evidence. The control of the trial court over the procedure followed to authorize the opportunity criterion is only to the extent that it is the antecedent for the described appearance, since because it is not a means of proof, the court must confine itself to verifying the formal aspects specified by the Constitutional Chamber, that is, the existence of the prosecutorial request, the hierarchical authorization, and the approval by the judge. xi) Although the Third Chamber has proceeded to assess the conduct of the alleged beneficiary and of the accused against whom he declares, in none of the cases has it attributed such a task to the sentencing court, something that in any case it could not do without compromising essential guarantees. It cites in this regard, resolutions No. 1061-2008 and 795-2009. In the first, the trial court considered that there were irregularities in the jurisdictional advance testimony of a deponent, for which reason it stripped it of all evidentiary efficacy. Faced with this, the Chamber considered that although in the particular case the criterion had not been granted, the conditions for it were also not met, since the collaborator's participation was fundamental. In response to this, the majority vote holds that the cassation body at no time alleged that it was the trial court's task to assess the appropriateness of the cited criterion, nor to contrast the conduct of the deponent and the accused. The Chamber carried out this analysis based on the self-incriminating statement itself, an exercise that the trial court cannot carry out before the sentence and which is different from the case in which, according to the same cassation body, such examination should be done, namely, when an attempt is made to receive a self-incriminating narration without observing the respective guarantees. In the second vote, the Third Chamber affirmed that the trial court should have limited itself to pointing out the nonexistence of jurisdictional approval for the opportunity criterion, without it being its task to examine the collaboration criterion, qualify it, and much less invoke, for that purpose, the content of the evidence produced before hearing the deponent's account. This matter is fundamental, because a habeas corpus was filed in favor of the collaborator, resolved by the Constitutional Chamber in vote No. 6808-2002 and in which it was taken as proven that in order to declare the described agreement illegal, the court argued that the responsibility possibly attributable to the protected person would be similar to that of other accused and that the information she could provide would not be decisive for the outcome of the process. The a quo considers the minority position expressed in that sentence No. 6808-2002 to be central, since it is explained that the trial court was prohibited from anticipating the result that the accusation would have; establishing the authorship corresponding to the so-called “crown witness” when it has not yet ruled on the accusation in which other authors and co-authors of the act are cited and from which the collaborator is excluded; speculating on the outcome of the action that the Public Prosecutor's Office has not exercised; and basing the rejection of the criterion on an assessment of the evidence and the facts not contained in the accusation. According to Mr. Fernando Cruz Castro, magistrate who subscribes to that minority position, it is only after receiving the evidence in the trial that the sentencing court can determine whether the collaborator's action is less reprehensible than the one it facilitated resolving and whether his collaboration has been decisive. Based on this, the judges conclude that although the Third Chamber has assessed and compared the conduct of the collaborator and those involved to determine whether the opportunity criterion was or was not well granted (which in any case is questionable, since in such cases the beneficiary would not be being judged, against whom criminal prosecution has not even been exercised by the entity with the power to do so), it is a task that at cassation is indeed feasible to do, firstly because it is carried out ex post (relying even on the assessments of the trial court) and secondly because it does not compromise the impartiality of the jurisdictional body, as would happen if the trial court does it. They mention, by way of example, resolutions No. 737-2001 and No. 136-2003 of the Third Chamber, in which it was never indicated that the trial court must carry out that analysis before issuing a sentence, or that it is responsible for controlling the decriminalizing effects of the institute. Furthermore, in cases where that prior jurisdictional control was not exercised (No. 175-2003 and 114-2006, both from the Third Chamber), the only consequence derived from this has been the impossibility of receiving the statement, but not the requirement for verification of said examination by the sentencing court. Finally, in ruling 795-2009 of the Third Chamber, given the lack of compliance with the established legal procedure and the nonexistence of jurisdictional approval, it was said that it is the task of the Public Prosecutor's Office to remedy those deficiencies and therefore, to seek the suspension of the trial while the issue is resolved, from which it is inferred that it is not the trial court that must carry out the jurisdictional control and that those errors, according to what the Chamber suggests, can even be corrected in the adversarial proceeding. xii) After reiterating that jurisdictional control over the application of this institute is limited to compliance with legal requirements, the majority vote notes that there is a third limitation for the trial court in said control, namely, the duty to guarantee its impartiality. They understand that it cannot rule on the issue of the lesser reproachability of [Name01 064] without reasoning at the same time about the substantive right under discussion, or without comparing the conduct of the accused with that of the former, which Name05 anticipating judgment on the facts. They refer again to the dissenting vote of resolution No. 6808-2002 of the Constitutional Chamber, in which Magistrate Cruz Castro pointed out that the impartiality of the court would be weakened if it intervenes on prosecutorial powers, ruling on the eventual criminal responsibility of a person who, although benefited by an opportunity criterion, has not been accused. Therefore, they emphasize that the control that the trial court must carry out, different from that which the criminal judge who authorized the application of the institute was responsible for, is solely to establish the legality of the appearance of the “collaborating declarant,” verifying compliance with the legal requirements determined at the time of granting such authorization and which are described in numeral 22 of the procedural Code, namely, that there is an express request from the Prosecutor's Office, that there is hierarchical authorization to carry out the action, and that there is jurisdictional approval, all of which are fully satisfied in this case. The assessment of the statement is a separate matter. xiii) Regarding the lack of reasoning in the resolution that authorized the opportunity criterion, the trial court reiterates that it is not its responsibility to decide whether the request for the opportunity criterion should have been admitted or rejected, nor whether the decriminalizing effects should be generated from it. It insists that it has no standing to exercise control over the resolution of the criminal judge of reference, issued in observance of the guarantee of the natural judge (juez natural), in a process different from this one and regarding someone who is not accused in this case. It was the criminal judge who was responsible for controlling the legality of the decriminalizing effects of the opportunity criterion, therefore both out of respect for her independence—since the trial court lacks competence to assess her actions and judge whether they conformed or not to the legal conditions—and in application of the principles of impartiality and legality, which prevent assuming an unforeseen task, it is not feasible to hear the objections formulated by the defense and consequently, it is only appropriate to analyze the legality of the criterion as an antecedent of the deposition (deposición) of [Name01 064], determining that it was processed in a separate file, through a prosecutorial action that had the endorsement of the hierarchical superior, which was presented to the judge of the intermediate stage who exercised the respective jurisdictional control and approved it. Having analyzed these reasonings, the undersigned consider that they are not acceptable. The judges subscribing to the majority vote make an effort to separate the statement given by [Name01 064] at trial from the procedure followed to apply an opportunity criterion in his favor; however, it is notorious that if this accused collaborated, it was for the purpose of fulfilling the pact he had made with the Public Prosecutor's Office. The expectation of obtaining impunity in relation to a series of criminal acts that, at least in principle, could be attributed to him, is what incentivized [Name01 064] to collaborate, waiving his right not to testify against himself (article 36 of the Political Constitution) and the same state of innocence that protects him (art. 39 of the Constitution). Therefore, we speak of intrinsically associated procedural acts, where the realization and, of course, the legitimacy of one (the testimony, a term used in a non-technical sense since it is not offered under oath) is conditioned by the legality of the other (the agreement). It is not ignored that the statement of [Name01 064], as evidence, was produced at trial; however, this in no way modifies the conclusion stated above, since it took place precisely because Name02 it was contemplated in the negotiation, from which it originates and derives. Having clarified the above, it is appropriate to make some general reflections on the principles that underpin our criminal process and which are indispensable to establish the scope of jurisdictional control over the application of opportunity criteria by the requesting body. We begin with an obvious fact, namely, that both the agreement made by the Public Prosecutor's Office and the resolution that authorized it are acts that are subject to the rule of law. According to article 11 of the Political Constitution, every public body, being a mere depositary of authority, is obliged to fulfill the duties that the legal system imposes upon it, and furthermore, it can only act to the extent that the legal system permits it. Article 39 of the same Constitution states that no one shall be made to suffer a penalty except for a crime, quasi-crime, or misdemeanor, sanctioned by prior law and by virtue of a final judgment issued by a competent authority, after the accused has been given the opportunity to exercise his defense and through the necessary demonstration of guilt. From both norms, not only the principle of legality regarding crimes and penalties is deduced, but also regarding the procedure, as set forth in the Code of Criminal Procedure (hereinafter C.P.P.) in its article 1, stating: "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…". As can be seen, we speak of a provision that imposes the duty to respect procedural forms, not because these are valuable in themselves, but because they are intended to guarantee the rights of the parties, in particular those of the accused against whom criminal prosecution is exercised and more specifically, against whom the so-called “crown witness” testifies. The majority vote says that the requirements contemplated in article 22 subsection b) of the C.P.P. are both substantial and formal and that the criminal judge cannot control compliance with the former. This is a position that this appellate court does not share, because Name05 an indisputable breach of the aforementioned principle of legality. In general terms, two general models for the application of opportunity criteria can be identified. In one, opportunity is the rule, a guiding principle of criminal prosecution. As Name13 points out, in this model applied, e.g., in the United States of America, the principle of legality is disregarded to such an extent that the foundations of the criminal justice administration system would be threatened if this principle were adopted even partially: "…the force of that conclusion is so vigorous that the power of selection resides in the public prosecutor's office (also in the police that interacts with it in criminal prosecution) and is inherent to it, as the acts of government of the Executive Branch are discretionary, based on the constitutional principle of separation of powers; the practical reason is also incontestable: with that weapon the public prosecutor's office governs the criminal process and its concrete form (through tools that, in accordance with the pursued, allow it to vary the nature of the procedure, to abbreviate it: plea bargaining, guilty plea), and harmonize its possibilities of prosecuting efficiently (number of cases and complexity), with the personal and material resources of the administration of justice in general, within the framework of a concrete and direct strategy for the best and most effective application of the law." (Name13. Criminal Procedural Law. Buenos Aires, Editores del Puerto s.r.l., 3rd reprint of the 2nd edition, 2004, p. 836). In the same sense, Name14 points out that, in this scheme, the discretionary powers of the requesting body are of such magnitude that in practice "…it is the prosecutor who completely dominates the procedure. These powers are not limited to the possibility of freely desisting from the accusation (prosecution), but also cover a wide spectrum of \"intermediate\" acts, as Name02 might say, such as the prosecutor's power to propose a reduction in the charges on which the accusation has been based or that appear in the police report; even, the public prosecutor's office can confer immunity, in compensation for having collaborated with the government in the investigation…". (Name14. “Discretionary powers of the public prosecutor's office and preparatory investigation: the principle of opportunity.” In: Name13 (Comp.). The Public Prosecutor's Office in the criminal process. Buenos Aires, Ad Hoc S.R.L., 1993, pp. 89-90). In legal systems where the principle of discretion in the exercise of criminal prosecution prevails and not its mandatory nature, there is no problem whatsoever in accepting that an accused person provides collaboration in exchange for obtaining certain benefits or rewards, for example, not being investigated or prosecuted for certain acts. Faced with this model, where the discretion of the requesting body is absolute, we find another characteristic of States that have adopted the continental European system and in which, in attention to the principle of legality, the exercise of criminal prosecution is a duty. In this context, waiving the prosecution of a criminal act committed by an accused person who collaborates with the investigation, or suspending the exercise of the action already initiated, is not a decision free from controversy. So much so that while some consider that the collaborator must be prosecuted and can only have their penalty attenuated or be exempted from it, for others (and in this position the Costa Rican Code of Criminal Procedure was inserted) it is legitimate to exclude the exercise of criminal prosecution. Regarding the first position, Name15 tells us: “The reward for \"procedural repentance\", that is, the reward derived from the collaborative counter-conduct of the guilty party in the investigation of the criminal act, in the abstract, can have a merely procedural transcendence, in those legal systems where, as occurs in Common Law States where the principle of opportunity in criminal prosecution governs, translating into the possibility of not exercising criminal prosecution or even, once initiated, suspending it. However, in States where the continental system of Law governs, in which the exercise of criminal prosecution is mandatory, the reward for the procedural collaboration of the guilty party must be substantivized in material Criminal Law, through specific attenuations of penalty or even exemptions from it, albeit after a criminal process in which the guilt of the repentant is determined.” (Name15, Ignacio Francisco. The \"collaborator with justice\": substantive, procedural and penitentiary aspects derived from the conduct of the \"repentant\". Spain, Dykinson, 2004, p. 29. ProQuest ebrary. Web. 10 November 2015 , p. 43). On the second position and, specifically, on the Costa Rican case, Name16 indicates: “In accordance with what is established by the German procedural ordinance (arts. l53 et seq.), the Model Code of Criminal Procedure for Ibero-America (arts. 230 et seq.), the Argentine Criminal Procedural Code project of 1987 (art. l5), and the Guatemalan Criminal Procedural Code project (art. l0), it is admitted in certain cases, clearly predetermined, that the accusing body, with the authorization and supervision of the jurisdictional body, may totally or partially waive criminal prosecution. The principle of legality will continue to govern the exercise of criminal prosecution; however, the introduction of the principle of opportunity in some clearly defined cases, under jurisdictional control, allows for a significant rationalization of criminal prosecution, Name17 the intervention of state repression in cases where it is not really justified. As in the previous Code, in the current one, the guiding principle for the exercise of public criminal prosecution is that of mandatory prosecution. However, as a novelty, the cited Code establishes the principle of opportunity, by virtue of which it is possible for the Prosecutor to request from the respective Court the suspension or archiving of the preliminary investigation, if in the specific case any of the pre-established legal criteria concur. Thus, article 22 provides that the representative of the Public Prosecutor's Office, with prior authorization from the hierarchical superior, may request that criminal prosecution be waived, totally or partially, that it be limited to one or several infractions or to some of the persons who participated in the act …”. (HOUED VEGA, Mario. The criminal process in Costa Rica. San José, Supreme Court of Justice, 2000, s.n.p., available at: http://biblioteca.icap.ac.cr). Ultimately, although the Costa Rican legislator contemplated the principle of mandatory prosecution of criminal action (thus, art. 289 C.P.P.), it also provided a restricted list of cases in which it is plausible to provide otherwise, hence it is a regulated opportunity. Dealing with subsection b) of article 22 of the C.P.P., which contemplates the case of the so-called crown witness or repentant, the application of the opportunity criterion is conditioned on the fulfillment of a series of requirements: i) that the prosecutor requesting to totally or partially waive criminal prosecution acts with prior authorization from the hierarchical superior; ii) that it involves a matter of organized crime, violent criminality, serious crimes, or complex processing; iii) that the accused effectively collaborates with the investigation, providing essential information to prevent the continuation of the crime or the perpetration of others, to help clarify the investigated act or other related ones, or providing useful information to prove the participation of other accused; iv) that the conduct of the collaborator is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. In this matter, the trial court, faced with a clear norm such as article 22 of the C.P.P., makes an unnecessary exercise of interpretation, to give it a content it does not have. Although the provision does not distinguish between “formal” and “substantial” requirements, the a quo concludes that jurisdictional control can only concern compliance with the former and that therefore, it is not appropriate to examine whether the conduct of the collaborator is less reprehensible than the punishable act whose prosecution it facilitates. In maintaining the above, it also recognizes, though without saying it expressly, that the requirement is not such, since the requesting body can act with absolute discretion, which is unacceptable in a criminal process like ours, governed by the principle of legality and in which it is insisted, by express provision of the legislator, the application of any opportunity criterion is subject to the judge verifying compliance with all the formalities contemplated in numeral 22 C.P.P. At this point in the exposition, it is essential to differentiate between the principle of opportunity reflected in art. 22 cited supra and the legal requirements for its application, also described in that norm. One thing is the granting of a sphere of freedom to the requesting body so that, by reason of its prosecutorial policy, it chooses the matters in relation to which it deems appropriate to waive or limit the exercise of criminal prosecution, and another distinct thing are the requirements that art. 22 demands to materialize that pretension and within which is contemplated, in what is relevant here, the lesser reproach to the collaborating accused. Controlling the strict compliance with these is the province of the judge, which in no way Name05 is an invasion of the functions granted to the Public Prosecutor's Office, since the discretion granted to that public body is regarding the selection of cases, accused, and crimes with respect to which it requests the application of the opportunity criterion, it being that on this request, it must be the jurisdictional body that decides, after verification as already said, of the observance of the legal requirements—hence it is spoken of a regulated opportunity. In that context, the division that the trial court makes of the requirements contemplated in article 22 subsection b) C.P.P. is completely unfounded, since both those it calls substantial or evaluative (namely, the lesser reproach that must correspond to the collaborator's conduct) and those it calls formal (express request from the Prosecutor's Office with prior authorization from the hierarchical superior and jurisdictional approval), are legal and formal requirements (this to the extent that they are formalities described in the legislation), indispensable for the application of the institute to proceed and whose verification has been entrusted to the judge. In summary, we speak of two distinct issues. On one hand, the opportunity—sphere of discretion of the requesting body in the selection of matters where it requests the application of the criteria—and on the other, the requirements that the legal system provides for that application to take place. Name02 just as the Public Prosecutor's Office is free to determine when it is opportune to waive or limit criminal prosecution in exchange for obtaining the collaboration of an accused, without anyone, public body or not, being able to force it to agree if it does not wish to, it is the judge who is responsible for verifying that in the cases selected by the requesting body, each and every one of the requirements contemplated by the legislator have been satisfied. Having clarified the above, we have that in this matter, the claims against the opportunity criterion applied to [Name01 064] do not focus on the first aspect—in fact, no one disputes that the Prosecutor's Office was free to choose [Name01 064] to the detriment of other accused—but on the second, meaning, on compliance with the requirements to materialize that pretension, an extreme that is subject to jurisdictional control. Regarding the body that must exercise that control, although in principle it should be the criminal judge, since the request must follow the procedure established for the conclusion of the preparatory procedure (art. 22, last paragraph C.P.P.), nothing prevents the trial court, or other bodies that hear the matter as a result of a challenge, from assuming that task. And it is that, in addition to the examination that the criminal judge must carry out, intended to determine the appropriateness and application of the criterion, we also have the control that the trial court must exercise a posteriori, intended to determine whether it is appropriate to receive the statement of the repentant, Name02 as well as the control that the appellate court and the cassation chamber itself could eventually exercise, with the purpose of establishing whether that statement can have legal and evidentiary effects in relation to the subject against whom it is declared. Therefore, the control exercised by the criminal judge is not exclusive of that which other jurisdictional bodies may carry out, whether ex officio or at the request of a party. Regarding the latter, it should also be noted that the Code of Criminal Procedure indicates that absolute defects, like relative defects that have not been validated (arts. 177 and 178 C.P.P.), must be remedied, a task that must be carried out without taking the process back to periods already precluded (art. 179 of the same legal body), the foregoing except in expressly provided cases, for example, a remand ordered in cassation. From this, the general rule is extracted that, in the case of absolute or relative defects not validated, the legal operator has a duty to amend them—the norm has a mandatory nature—and must do so, except for the exceptions also contemplated by the legislation, without taking the process back to stages already passed, which necessarily implies that the claim against a defective act can be replicated in multiple procedural phases. Regarding this mechanism, Name18 points out: “Regarding the procedure in the NCPP we can say, grosso modo, that defective procedural activity is susceptible to being claimed before the Court of the Intermediate Procedure.” It is at this stage that all aspects related to matters not cured in the preparatory stage must be resolved, those that have not been validated by the inertia of the parties (arts. 15 and 317 subsection a. NCPP), and should a positive response not be found, such defects may be challenged during the trial via an incidental motion (art. 342 NCPP), and as a last alternative they may be invoked in cassation or review when they involve aspects implying a violation of constitutional guarantees… In cases concerning procedural defects, it is required as a requirement of admissibility that the party has made a timely protest or has requested the cure, with the exception of absolute defects…” (Nombre18. “La actividad procesal defectuosa.” In: Derecho procesal penal costarricense. San José, Asociación de Ciencias Penales de Costa Rica, Volume II, 2007, pp. 230 and 231). The Constitutional Chamber has also repeatedly pronounced on the form of horizontal review alluded to above, as opposed to the vertical review corresponding to appeals. For example, in resolution No. 1999-01550, of 3:15 p.m. on March 3, 1999, when resolving an unconstitutionality action against articles 437 and 315, in relation to 311, all of the C.P.P., in which it was claimed that such provisions omitted the possibility of appealing an order that denies a dismissal, it stated: “Non-existence of appeal regarding the resolution dismissing a motion for nullity… However, it is possible to affirm that the non-existence of an appeal remedy with respect to a resolution denying a motion for nullity does not violate any element of due process. It is not the legislator’s obligation to establish a second instance for all resolutions and actions within the process. The mere existence of an appeal remedy does not in itself guarantee compliance with due process. Hence, the obligation to enable a second instance for the accused, from a human rights protection perspective, exists in relation to the conviction judgment, as established by Article 8, second paragraph, subsection h) of the American Convention on Human Rights. For its part, Article 437 of the Code of Criminal Procedure establishes which resolutions are appealable. If some irreparable harm occurs, that provision enables the appeal remedy even if it involves a resolution that has not been expressly declared appealable. If the resolution does not produce irreparable harm, one may proceed as provided in articles 175 et seq. of the same Code, that is, the defect may be validated or cured. Furthermore, as indicated in the preceding considerando, the non-existence of an appeal remedy in relation to a resolution that does not terminate the matter does not entail any injury to the fundamental guarantees of the parties, since the matter may be raised again in later stages and even in cassation in the event of a conviction judgment. Thus, the challenged provision does not cause any violation of due process and for that reason the action must also be rejected on the merits regarding that particular point.” In summary, horizontal review derives from the very structure of our criminal process. Except for the limitations inherent in those set forth in articles 175 et seq. of the Code of Criminal Procedure (e.g., that it involves a defect that is already validated for any of the reasons indicated in art. 177 C.P.P.), the parties may raise the challenges again in later stages and the corresponding tribunal, according to the procedural phase, shall be obligated to resolve them. In addition to the foregoing, we have that the Third Chamber of the Supreme Court of Justice has peacefully assumed that jurisdictional bodies—the criminal judge, the trial court, the criminal sentence appeals courts, or even the Chamber itself—are competent to examine whether a conduct is or is not less reprehensible than others, for purposes of determining whether an opportunity criterion has been correctly granted. For example, in resolution No. 2001-00737, of 9:10 a.m. on July 27, 2001, it was indicated: “The core issue upon which a judgment must be made with a view to determining whether one may resort to the criterion under discussion, is the reprehensibility of the specific conduct of the ‘collaborator’ in the act under investigation or in one related to it and its lesser extent when compared to that of the remaining persons in whose prosecution cooperation is given. The defense errs, then, in generically affirming that the opportunity criterion is inapplicable to the co-perpetrators or participants of the same crime under investigation, for the law is clear in providing the contrary. In the present case, the Public Prosecutor’s Office maintained the thesis—admitted by the a quo in the judgment on the merits—that the witness Nombre19. participated in the act by striking a third party whom he left unconscious (Nombre20.), but whom he did not kill; while the other persons attacked two other victims causing their death. In this situation, even if the defense counsel’s interpretation were admitted (in the sense that Nombre21. participated actively, with control over the act in the two homicides materially executed by other subjects), the truth is that nothing prevented applying the opportunity criterion in his favor, since the reprehensibility of his conduct (which, ultimately, only produced slight incapacity in Nombre22.) is much lower than that of the actions attributed to the other participants in the events, who would have directly procured the death of Nombre21.Nombre23. and Nombre24.” Something similar occurs in judgment No. 00795-2009, of 2:35 p.m. on June 16, 2009. In it, the Third Chamber concluded both that the acts committed by the collaborator may be different from the act whose prosecution he facilitates, and that the lesser reprehensibility corresponding to the former is one of the essential prerequisites that the judge must verify when approving the request for application of the opportunity criterion: “The opportunity criterion based on the cooperation that one of the participants in the crime provides to prosecute the others (or those of another more serious illicit act), constitutes a way to extinguish the criminal action with respect to the collaborator, it proceeds in cases of organized crime, violent criminality (such as the homicide under investigation here), serious crimes or those of complex processing, and demands two other essential conditions: that the conduct of the collaborator be less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents, and that the information he provides satisfies the intended expectations. Of course, the cooperator may be a participant in the same crime to be prosecuted (procedurally: a co-defendant) or the perpetrator of another less serious punishable act. The procedure for applying the opportunity criterion in this hypothesis comprises the authorization of the prosecutor’s hierarchical superior (e.g.: the deputy prosecutor, with respect to the assistant prosecutor), who must request from the judge of the intermediate stage the approval of the opportunity criterion. If the judge admits it, after verifying the concurrence of the essential prerequisites (the type of criminality, the lesser reprehensibility of the collaborator’s conduct, and the authorization of the competent prosecutor of the Public Prosecutor’s Office), he shall decree the suspension of the exercise of the public criminal action, which shall remain in that state until fifteen days after the finality of the judgment handed down against the other defendants (that is: those whom one intends to sanction with the collaborator’s help), at which time it must be resolved definitively whether the criminal action is extinguished… In this matter, the defense counsel questions the trial court’s decision, which convicted three of the participants in the homicide, to refuse to take the testimony of the ‘collaborator’ female defendant and, rather, to order her detention and deem the signed cooperation agreement illegal. Regarding this point, it must be remembered that what happened was due to the actions and omissions of the Public Prosecutor’s Office, which limited itself to signing the agreement but failed to comply with the other applicable procedures (to manage the authorization of the hierarchical superior and the approval of the judge for him to declare the criminal prosecution suspended). From this perspective, no objection can be formulated to the act of the referred trial court in rejecting the proposed testimony, since the truth is that such a request sought nothing other than to receive as a witness (even without oath) a person who, according to what was on file, was rather a female defendant who had undergone an initial investigative statement, but whose legal situation had not been defined through any jurisdictional pronouncement. As stated, the suspension of the exercise of the criminal action against Nombre25. was never decreed and, in fact, the agreement had not been submitted for a judge’s examination, such that the trial court was the first jurisdictional body that had contact with the matter. Despite the foregoing, not all of the trial court’s actions can be endorsed, insofar as they meant declaring the illegality of the agreement, for it would have sufficed to reject the testimony by pointing out the failure to comply with the provided legal procedure and, above all, the inexistence of jurisdictional approval, such that it fell to the Public Prosecutor’s Office to correct the deficiencies it incurred and to seek the suspension of the oral trial while it managed the hierarchical and judicial approval of the agreement, so that the testimony of the ‘collaborator’ female defendant would finally be taken at the trial against the other participants in the crime, or else, in the event that such approvals were denied, to continue with the criminal prosecution of the accused. It is not the task of the trial court to declare the ineffectiveness of the cooperation agreement signed by a person who is presented to it as a witness without oath (or, to be more precise, a defendant or co-defendant whose prosecution is suspended) invoking for that purpose the content of the evidence taken before hearing the account that the deponent would give. What it can do is refuse to take the testimony if, as occurred here, the legal procedures established for applying the opportunity criterion were not complied with. On the other hand, it is necessary to emphasize that all the problems raised in this case and in relation to the female defendant are the exclusive responsibility of the Public Prosecutor’s Office…” Finally, in judgment No. 01712-2013, of 2:21 p.m. on November 22, 2013, the cassation body affirmed that said review must also be carried out by the criminal sentence appeals court: “I. By means of resolution number 2013-1330, of eleven hours and nine minutes on September twenty, two thousand thirteen, this Chamber admitted for substantive study the cassation appeal filed by Lic. Nombre26, … In the sole ground in favor of the accused Nombre04.Nombre27., Nombre28. and Nombre29., it alleges the disregard of procedural legal precepts, specifically, of the provisions set forth in articles 142 and 459 of the Code of Criminal Procedure. In the defense counsel’s opinion, the Appeals Court did not rule on all the aspects that were expressly challenged before it. In that sense, it notes that the incorrect assessment of Article 22 of the Code of Criminal Procedure was claimed, upon considering that the participation of the person who was granted an opportunity criterion was not less reprehensible than the conduct attributed to the other defendants; however, it considers that the analysis made by the Appeals Court was limited to a review of the reasons why credibility was granted to said witness, and to concurring with the thesis set forth in the judgment, without analyzing the substantive issue… II. The claim is admissible. After carrying out a careful study of judgment number 92-2013, handed down by the Criminal Trial Court of the Third Judicial Circuit of San José, at eleven hours on February twenty-fifth, two thousand thirteen; and of resolution number 2013-1448, of eleven hours and three minutes on July fifth, two thousand thirteen, from the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José, this Chamber considers that the private defense is correct in the claim lodged. For purposes of beginning the analysis on the merits of this matter, it is necessary to start from the factual framework that the Trial Court held as proven: ‘1. On April 10, 2010, at approximately 6:00 p.m., the victim Nombre30., alias “Nombre31”, was in San José, Alajuelita, Concepción Arriba, Address01, outside Bar Betos, consuming liquor. 2. In the same place, on the date and at the time referred, the female defendant and administrator of said bar Nombre32. was present, in the company of the co-defendant Nombre33., c.c. “Nombre33.”, who argued with the victim over a prior problem, to the point of threatening him with death. 3. Immediately thereafter, the defendants Nombre34. and Nombre09., acting by mutual agreement and with the aim of killing the aggrieved party Nombre35., contacted by telephone the also defendant Nombre36., alias “Nombre37”, to whom they offered the sum of two million colones to carry out said homicide. 4. By virtue of the foregoing, the co-defendant Nombre36., acting by mutual agreement and according to the plan previously established with the defendants Nombre32.Nombre38. and Nombre33., contacted the also defendants Nombre39., alias “Nombre40” (against whom a separate case is being pursued for these acts in case file 11-000052-1042-TP, with whom an opportunity criterion was negotiated) and Nombre29., to execute the homicide of Nombre41. 5. As part of the previously established plan, the defendants Nombre36., Nombre05. and Nombre29., boarded, in the vicinity of the former Delegation of the Public Force of Concepción de Alajuelita, the white vehicle, brand Hyundai, style Accent, license plates…, which was being driven by the co-defendant Nombre42., alias “Nombre43”, who, without knowing about the previously agreed payment, but aware that a homicide was going to be committed, was accompanied by the also defendant Nombre44., alias “Nombre45” (against whom a separate case is being pursued for these acts in case file 12-000012-1042-TP), brother of Nombre33., who moved to the place where the victim was, with the purpose of killing him. 6. At approximately 11:30 p.m. that same day, the victim Nombre46.Nombre47. was outside Bar Betos, at which moment the defendants Nombre32. and Nombre33., acting by mutual agreement, according to the previously established plan and with a clear distribution of functions, communicated by telephone with the co-defendant Nombre36. and informed him of the exact location of the victim, in order to ensure his death. 7. Immediately thereafter, once these defendants arrived in the vicinity of Bar Betos, the accused Nombre39. and Nombre29. got out of said vehicle, at which moment the co-defendant Nombre42., according to the previously established plan to ensure the subsequent flight from the place, parked approximately 50 meters north of the point where the victim was, a place where he waited for them while they carried out the homicide, in the company of the co-defendants M.A.S. and Nombre36., who previously had given them the respective operational instructions to execute said crime. 8. Immediately thereafter, the defendants Nombre39. and Nombre29., acting by mutual agreement with the also defendants Nombre28., Nombre33., Nombre44.Nombre48., Nombre36. and Nombre42., approached the victim and, without any justification whatsoever and with total contempt for his life, shot him on multiple occasions with firearms, with the co-defendant Nombre29 also being wounded… 10. As a consequence of the unlawful conduct of all the defendants, the victim suffered seven wounds caused by firearm projectiles, located in the thorax, abdomen, right buttock, right upper limb and left lower limb, which caused his death that same day at Hospital San Juan de Dios, the cause of death being: Firearm projectile wound to the thorax with cardiac laceration with left hemothorax and hemopericardium and the manner of death: Homicide from a medico-legal standpoint.’ In this way, for the Trial Court it was duly accredited that the accused Nombre39. and Nombre29. were the material perpetrators of the homicide, because in the distribution of functions previously agreed upon among all the co-defendants, it was those two who agreed to execute the accused criminal act, shooting on various occasions with the firearms they carried, in order to end the victim’s life. Now then, the Public Prosecutor’s Office decided to negotiate an opportunity criterion with the co-defendant Nombre39., who collaborated with his statement, in the capacity of crown witness. This agreement was objected to by the defense of the other accused, pointing out that the legal prerequisites for the admissibility of the opportunity criterion were not met, since the defendant had the status of co-perpetrator in the accused acts, was the material executor of the homicide, and his conduct was as reprehensible as that of the other co-perpetrators. The protest for defective procedural activity was resolved in the first considerando of the judgment handed down by the Trial Court (visible from folio 1223 of volume II of the investigation file). In summary, said protest was declared without merit for the following reasons: 1) Article 22, subsection a) of the Code of Criminal Procedure grants the Public Prosecutor’s Office the discretion to totally or partially dispense with criminal prosecution, when the accused gives a statement against other participants in the act, with the aim of obtaining a benefit, in relation to the reproach of his responsibility in the charged crime. 2) The negotiation escapes the control of the other defendants, it is not a right that belongs to them, and it is a private matter between the Public Prosecutor’s Office, the defense counsel, and the collaborator; therefore, the agreement has no obligation of publicity. 3) Regarding the degree of reprehensibility of the conduct attributed to the crown witness, it indicated: ‘The factual framework that has been demonstrated and that finds support in the accusatory pleading establishes that due to criminal problems that existed between a brother of the victim and a brother of the defendant, frictions had arisen that culminated with the decision of the defendant Nombre33. to pay a sum of two million colones with the sole purpose of ending the life of Nombre21., which found justification in the defiant attitudes the latter displayed at Nombre49.’s business, in relation to the supposed rights of his brother, for the debts of Nombre49. and a brother of his to him. So on April 10, 2011, and after one of these problems, Nombre49. and the co-defendant Nombre28., taking advantage of the economic advantage of the former, devised the victim’s death, deciding to pay third parties a sum of two million colones for that execution. In this manner, it is feasible to conclude that those who had control, the decision over that act, were Nombre49. and Nombre28., who assumed the primary function in the act, since they were the ones who decided to hire the co-defendant Nombre50.Nombre46., so that he in turn would hire Nombre29. and the defendant and crown witness, Nombre51., to carry out the victim’s death; additionally, the defendant Nombre42. participated in the act, who was in charge of facilitating and driving the vehicle, which was used to transport those who would be in charge of committing the criminal act. It can be noted then that the planned homicide was even structured hierarchically based on those who, in that small organizational structure, were those who decided and paid for the commission of the homicide. On a second level, as we have said, we find Nombre46. who was the contractor-intermediary, and even lower down, it is possible to find those who carried out the act, who in the Court’s opinion can be seen as changeable pieces of that plan. The Court considers then that the participation attributed to Nombre51. can indeed be framed within a lesser reproach, from the perspective of the organizational structure, where he followed others' orders, which reflects his lesser relevance in the acts. It is important to indicate that in relation to the decision, as to which of the defendants should be granted the opportunity criterion, it must be concluded that this is a faculty held by law by the Public Prosecutor’s Office and that it will depend on the lesser reproach and on whether the information supplied is sufficient, according to the prosecutorial criteria, without the Court being able to observe any defect whatsoever in the Public Prosecutor’s Office choosing one defendant to the detriment of others, to benefit him with the non-prosecution of his criminal responsibility in the acts.’ For their part, the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José, in resolution number 2013-1448, of eleven hours and three minutes on July fifth, two thousand thirteen, upon hearing that same argument as one of the grounds for the appeal of the conviction judgment, indicated: ‘i.- First, the defense has challenged the Public Prosecutor’s Office’s agreement to grant an opportunity criterion to one of those implicated in the case, arguing that the content of Article 22 subsection b) of the Code of Criminal Procedure was exceeded, insofar as it was applied to the one who committed the most serious action of shooting the victim. This issue was extensively addressed in the judgment (fols. 1223-1226), noting that the Code of Criminal Procedure has granted a broad margin of discretion to the Public Prosecutor’s Office to negotiate within the criminal process, evaluating the pertinence in each case, in accordance with the orientation of criminal policy. It also indicated that the agreements are not public, nor do uninterested third parties participate in the transaction, to the point that it is handled in a separate and independent file. Furthermore, the judgment notes that, according to what was demonstrated, the decision-making power to order the victim’s death rested with Nombre33. and Nombre28., meaning that they are the ones to whom greater reprehensibility corresponds for the act, and with Nombre51. having a lower hierarchy, notwithstanding that he was an executor of the given orders. This Court has examined the point and concurs with the thesis set forth in the judgment, in that those who give the orders and pay the reward for the victim’s death and make others obey, have greater reprehensibility than the executors themselves, such that we are faced with one of the prerequisites that authorizes the negotiation of opportunity criteria in organized crime.’ (see folio 1501 front and back). Regarding the foregoing reasonings shared by both the Trial Court and the Appeals Court, the following reflections are appropriate: The principle of opportunity, contemplated in the procedural law as an exception to the principle of legality, establishes a series of sine qua non conditions for purposes of its admissibility, as provided by the legislator. In this way, in all cases the prior authorization of the hierarchical superior of the prosecutor promoting the agreement is required, according to the different factual scenarios authorized by the legislator. The first of them, contemplated in subsection a) of Article 22 of the Code of Criminal Procedure, provides: ‘It involves an insignificant act, of minimal culpability of the perpetrator or participant, or with his meager contribution, except where there is violence against persons or force against things, the public interest is affected, or the act was committed by a public official in the exercise of office or on account of it.’ According to the legal basis set forth by the trial judges in the conviction judgment…, this is the applicable factual scenario for the present matter. However, none of the requirements set forth therein are met in the case sub examine. This Chamber considers that the crime of homicide is not, from any point of view, an insignificant act. The figure of the material perpetrator of the homicide contravenes the concept of ‘minimal culpability’ or ‘meager contribution’. Taking a person’s life is the maximum representation of violence against a human being and, therefore, directly affects public interest. Consequently, the proven facts of the judgment fail to meet all the legal requirements enshrined in this factual hypothesis. If we continue to the next substratum, contained in subsection b) of the mentioned article, it establishes: ‘It involves matters of organized crime, violent criminality, serious crimes, or those of complex processing, and the defendant effectively collaborates with the investigation, provides essential information to prevent the crime from continuing or others from being perpetrated, helps clarify the investigated act or other connected ones, or provides useful information to prove the participation of other defendants, provided that the collaborator’s conduct is less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents.’ Based on the foregoing, the acts here accused could be adapted to the stipulated guidelines regarding violent criminality, serious crimes, effective collaboration, helping to clarify the investigated act, and providing useful information to prove the participation of other defendants, because there is a statement by the crown witness that for the purposes of the sentencing Court was sufficiently clear, convincing, and truthful, regarding the participation of the other accused, as well as regarding the motive and the dynamics developed, from planning to the execution of the crime, capable of accrediting jointly with the other evidence for the prosecution, the charged acts. However, the law foresees that in addition to those requirements, ‘the collaborator’s conduct be less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents.’ Regarding this last requirement, the defense directs its complaint, and it is precisely upon which a careful analysis must exist, in order to determine the legality and admissibility of the opportunity criterion that was granted to Nombre38.Nombre39., in the capacity of what in doctrine is called a ‘repentant defendant’ or ‘crown witness’ of the prosecuting body. Without losing sight that this is a criminal structure, in which there are clearly delimited functions among the participating subjects, a logical and analytical examination must be carried out, aimed at determining the essentiality and relevance of the conduct of the agent who seeks to benefit from the application of this institute. Based on the effective realization of the action attributed to him and on the essentiality and significance in the harmful result, the lawful and proportional parameters are set that would demarcate the agreement between the parties; namely, the Public Prosecutor’s Office, defense attorney, and repentant defendant or collaborator. While the law grants the prosecuting body a broad margin of negotiation and even the power to totally or partially dispense with criminal prosecution, it is also true that it sets a limit for the exercise of that discretion, as it warns that the beneficiary must have a conduct less reprehensible than that attributed to the other co-participants in the act one seeks to cease or prove. Likewise, it gives the Public Prosecutor’s Office the possibility of graduating the granting of that benefit, in the interest of assessing the reprehensibility of the conduct compared to that of the other co-participants and the effectiveness of the collaboration provided in the investigation, as well as in obtaining the conviction. The graduation of the benefit offered to the crown witness is directly related to whether criminal prosecution is totally or partially dispensed with and, therefore, to the elimination or reduction of the penalty to be imposed. Thus, an action carried out by a subject accused of being an accessory after the fact or an accessory to concealment in the criminal organization will not have the same level of reproach as the one who performs the action as an accomplice to the most serious crime, just as it does not resemble the one executed by the perpetrator or co-perpetrators. Therefore, there must be a correlation between the benefit offered and the degree of reprehensibility of the conduct, such that a rational proportion is established to determine whether criminal prosecution is completely dispensed with or whether, on the contrary, the illicit act is sanctioned in a less rigid manner, making the proposal attractive for the repentant defendant, but at the same time, appropriate for the ends of justice, thus avoiding the indiscriminate application of the same measure (of totally dispensing with criminal prosecution) to every type of participant in a crime, overlooking the legally established requirements for the application of this institute. It is for this reason that we consider the agreement entered into between the representatives of the Public Prosecutor’s Office, the collaborator defendant, and his legal representative to be illegitimate, because there exists no proportionality between the benefit received and the degree of participation in the accused acts. Contrary to what the judges affirm in the conviction judgment and in the appellate resolution, the conduct attributed to the accused Nombre51.

is highly reprehensible; given that, acting in association with the accused Nombre52, they kill the victim here, that is, they carry out the act, without any justification whatsoever, other than the interest in receiving an undue pecuniary benefit. To opt for a different criterion is to accept that the figure of contract killing carries an insignificant or even null censure, as in the case before us, in which the conduct deployed by one of the co-perpetrators is rendered inconsequential. For its part, the Public Prosecutor's Office has the legal authority to negotiate with the crown witness the imposition of a lesser penalty than that provided for the other co-participants, thus Nombre17, the impunity of a conduct that carries a high degree of reproach. It is also contradictory that while the Prosecution completely dispenses with the criminal prosecution against Nombre51, for that same conduct and, therefore, with the same degree of reproach, Nombre52 is sanctioned with twenty-five years of imprisonment, as the responsible perpetrator of the crime of aggravated homicide, just as the penalty imposed on the defendants who were accused of being the intellectual authors… and the mediator who hired the hitmen and made the respective collection for carrying out the work… In this sense, it is incompatible to indicate that the conduct of one of the material perpetrators of the act is less reprehensible, in order to justify the application of the prosecutorial discretion (criterio de oportunidad) and, on the other hand, to sanction all the other defendants with the same penalty, circumventing all prior reasoning on the reprehensibility of the conducts, according to the hierarchical structure of the criminal organization and the functions entrusted to each member.” This contradiction in the judges' reasoning violates the logic and legality of the ruling, because it is not possible to admit that one conduct is less harmful than another and the sanction be applied to all equally. Nor is it acceptable that one argument is used to legalize an agreement and with a totally opposite one, such a high prison sentence is imposed, when the act being judged is identical in both cases. Finally, as the entirety of the judgment on the merits was founded on the version rendered by the crown witness, on the occasion of a prosecutorial discretion that fails to comply with the legally established requirements for its applicability, ruling number 92-2013, of eleven o'clock on February twenty-fifth, two thousand thirteen, issued by the Criminal Trial Court (Tribunal Penal) of the Third Judicial Circuit of San José, and the trial that preceded it, are annulled; as Nombre02 resolution number 2013-1448, of eleven hours and three minutes on July fifth, two thousand thirteen, issued by the Court of Appeal of the Criminal Sentence of the Second Judicial Circuit of San José, in which the judgment on the merits was confirmed. It is ordered that this matter be remitted as soon as possible to the Court of origin, so that with a new integration the retrial may be held...”. The foregoing citation is lengthy, but indispensable for sizing up the scope of the jurisdictional control that, according to the cassation body, must be exercised over the issue of reproach and which supports this chamber's thesis. We are speaking of rulings where there has been no obstacle whatsoever to examining the point, where it is expressly and implicitly recognized that this analysis can be repeated at different stages of the process and, above all, where the a quo's thesis is dismissed, to the effect that this particular requirement contemplated by subsection b) of Art. 22 C.P.P., at any stage of the proceeding, is exempt from jurisdictional control. It is also important to refer to what was said by the Constitutional Chamber (Sala Constitucional) regarding this point. According to the trial judges, the constitutional court, through binding jurisprudence, prohibited the judge from controlling whether the collaborator's conduct is less reprehensible than the criminal acts attributed to other defendants. Such an assertion is not accurate. In resolution No. 12090, of 14:40 on July 31, 2009, the Constitutional Chamber ruled on an action of unconstitutionality filed by [Nombre01 033] against Articles 22 and 23 of the Criminal Procedure Code. The action was dismissed on the merits and as relevant here, it indicated: “On the other hand, Article 22 in fine is clear in stating that the request for application of a prosecutorial discretion must be raised before the court, which is the one that definitively resolves, exercising the due control of legality. It is not true, then, what was indicated by the plaintiff, that there is no control by the judge of guarantees. That control cannot be understood, in any way, to mean that the judge may replace the decisions of the prosecutors related to the opportunity and criminal-political convenience of initiating or continuing with the criminal prosecution. As will be analyzed, judicial control must be limited to the legal requirements, but cannot assess aspects that are inherent to the exercise of the prosecutorial function. To achieve the objectives pursued by the principle of opportunity (principio de oportunidad), it must be administered by the body in charge of state criminal prosecution. It must be added that the fact that the right of appeal is not provided for the resolution approving the application of a prosecutorial discretion by those who are listed as defendants in the same case, does not violate due process or the right of defense, given that the testimony rendered by the person to whom a prosecutorial discretion has been applied will be assessed by the court, who must substantiate the credibility it grants or not, in relation to the rest of the evidence and moreover, may be extensively questioned by the parties in the trial. Likewise, the defendant has the right to challenge the sentence if they deem that defects have occurred in the reasoning of the ruling or in the incorporation or assessment of the evidence...”. Further on, in that same resolution, it also stated: “ VII. On the principle of judicial independence. The plaintiff indicates that the questioned norms infringe the principle of judicial independence, because the Public Prosecutor's Office subordinates the judge, who truly disappears from the criminal scene and is reduced to fulfilling a merely formal task, which harms their independence, weakening the protection of the rights of the other defendants, especially the right to defense, to a fair trial, and to due process with all guarantees.- In relation to this aspect, it must be recognized that the Public Prosecutor's Office must be the axis of any markedly accusatory system. In the application of prosecutorial discretions (criterios de oportunidad), it is the prosecutorial body that must decide the convenience and necessity of its application, having been attributed the competence to design criminal prosecution policies, exercise criminal action, and carry out the preparatory investigation. As provided by the legislator, the judge must exercise a control of legality over the application of such measures, but not over the opportunity and convenience. Such a division of functions, far from violating the principle of judicial independence, rather strengthens it, given that the jurisdictional function must be restricted to controlling respect for the rights and guarantees of the parties and not to deciding on the accusation. On this subject, the Chamber ruled in judgment 2662-01 at 15:30 hrs. on 4-4-01, where a judicial consultation filed on the constitutionality of the decision of the deputy prosecutor that obliged the judge to admit the application of a prosecutorial discretion for insignificance of the act (insignificancia del hecho) and order the definitive dismissal was resolved. As relevant, it was stated: 'Consequently, it is up to the Prosecutor to decide regarding the convenience of applying or not a prosecutorial discretion. The parties may request its application, within the period of five days provided in Article 316 of the Criminal Procedure Code. However, the court of the intermediate proceeding cannot accept that request without the approval of the Public Prosecutor's Office, which as stated, must have the approval of the hierarchical superior. It is a duty and attribution of the Attorney General to establish the general policy of the Public Prosecutor's Office and the criteria for the exercise of criminal action (Article 25 subsection a) of the Organic Law of the Public Prosecutor's Office (Ley Orgánica del Ministerio Público)). Consequently, in accordance with that structure, the analysis that the court must make to authorize the application of a prosecutorial discretion must be limited to verifying compliance with the formal requirements established by the legislator. The authorization of the judge 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 the exercise of criminal action, it is to them that the responsibility is attributed, because that entails denaturalizing –within the system opted for (the accusatory)– the judging function corresponding to them, having to wait to be duly moved by the requesting body to be able to act. In the case of Article 22 subsection a), corresponding to the criterion of insignificance of the act, whose application originates this consultation, the judge must verify that the act had not been committed by a public official in the exercise of office or on the occasion thereof. The determination of whether it is an act that affects or not the public interest is up to the Prosecutor because it is an evaluative criterion that has to do with the exercise of the State's criminal policy, to be weighed in each specific case by the representation of the Public Prosecutor's Office. The foregoing, since it is a clear fact, that in all crimes of public action, the affecting of a public interest is involved, hence society at the time deemed it necessary to classify them as such. It is the Public Prosecutor's Office –it is reiterated– that must carry out the judgment regarding the convenience, utility, and necessity of the criminal prosecution in each specific case.' …It is clear then that it is the Public Prosecutor's Office and not the judge, to whom it corresponds to decide on the convenience or opportunity of applying the criteria provided in Article twenty-two of the criminal procedure code. This decision is an expression of the prosecutorial power and responds to a prosecution policy attributed exclusively to the prosecutorial body. However, the legislator established a control of legality that the judge must exercise regarding compliance with the requirements contained in the same objected regulations. It is not a decision that lacks judicial assessment, although in some eminently accusatory systems such control is not required, without it having been considered that such liberality violates fundamental rights.” (Underlining is not from the original). For those who subscribe to this resolution, the foregoing precedent cannot be interpreted in the manner set forth in the majority vote. In the first place, the Constitutional Chamber did not state that jurisdictional control must be circumscribed to part of the requirements provided in Article 22 subsection b) of the Criminal Procedure Code. Quite the contrary. It affirmed that in our country, unlike what happens in other latitudes (where a model has been adopted according to which the principle of opportunity is the rule and the decisions adopted by the Public Prosecutor's Office are not subject to judicial assessment), the judge is called upon to determine whether the requirements contemplated in the legal system are complied with. This, indicates the Constitutional Chamber, does not empower the judge to undertake tasks that do not correspond to them, for example, to assess the convenience or opportunity of dispensing with criminal prosecution in a specific case. And it is indeed, the decision to pursue or not a certain conduct is the purview of the Public Prosecutor's Office, however, this does not mean that it has maximum discretion in that sphere. Its decisions are subject to the law –because it can only dispense with criminal prosecution and promise advantages in the terms stated therein, cf. Art. 22 and 96 C.P.P.–, it being the task of the jurisdictional body, also by express provision of the legislator, to guarantee respect for the legal system. It is important to add that although the Constitutional Chamber stated that there are assessments that only the Public Prosecutor's Office can carry out (e.g., establishing that in a particular case the impact on the public interest was insignificant in the terms indicated by Art. 22 subsection a) of the C.P.P., cf. judgment No. 2662-01 mentioned in No. 12090-2009 previously reproduced), this does not allow interpreting that in the case of subsection b) of numeral 22–that is, of another scenario– the Public Prosecutor's Office may determine without any jurisdictional control that the collaborator's conduct is less reprehensible than other punishable acts, nor to assert as the trial court of merit does, that this position is the one assumed by the highest constitutional court of our country, setting aside that this body has only expressly indicated that the convenience of applying or not the aforementioned legal institution is the purview of the requesting body, a position that is shared without reservations, because indeed, only the Public Prosecutor's Office can decide whether it is convenient to dispense with the criminal prosecution of a defendant in a particular case in exchange for their collaboration. The foregoing, it is insisted, does not mean that it may negotiate with any defendant in any case, or negotiate any benefit, insofar as its request, to be accepted, depends on verifying compliance with the requirements defined by the C.Nombre06. Obviously, neither the criminal judge, nor the trial court, nor the bodies hearing the matter on challenge will assess the opportunity of the Public Prosecutor's Office's decision (based on its prosecutorial policy), but they must corroborate, because Nombre02 disposes it in the legal system, the strict compliance with its requirements (legal and constitutional), which is something different. In the same way, it will be the Public Prosecutor's Office that must assume the consequences of deciding in that sphere incorrectly, because if it negotiates with a defendant whose declaration, besides being essential, is implausible, it is likely that the result of the process will not be the desired one, Nombre02 as if it negotiates with a defendant who bears greater reproach, it is also plausible that at any procedural stage and given the protests of the parties, the negotiation be considered illegal. In summary, based on the very precedents cited by the a quo and in which the importance of legality as a governing principle of the actions of any public body is underlined, this chamber concludes that the court, irrespective of the stage at which the proceeding is, is obliged to verify that all requirements contemplated in Article 22 of the Criminal Procedure Code are complied with, therefore including matters related to the lesser reproach that must correspond to the conduct of the collaborating defendant whose criminal prosecution is dispensed with. For the judge to be able to assess this point, the criminal prosecution policies designed by the Public Prosecutor's Office are inconsequential, the same policies that do acquire relevance for the purposes of establishing, for example, the cases and defendants in relation to which that body requests the application of a specific criterion, an area in which it certainly has a considerable margin of freedom. In this same train of thought, it is likewise not unnecessary to insist that resolution No. 2662-2001, mentioned in turn in No. 12090-2009 of the Constitutional Chamber, ruled on subsection a) of Article 22 C.P.P. and not on subsection b), which is the one that concerns us here. In addition to this, there are other resolutions of the referred Chamber, e.g., No. 2002-06808, of 14:46 on July 10, 2002, where in a majority vote, and indeed referring to what is stated in subsection b) of numeral 22, Nombre07 is the control exercised by the trial court over the legality of a prosecutorial discretion: “The petitioner's disagreement lies in the fact that the protected party… signed an agreement with the Public Prosecutor's Office for the application of the regulated principle of opportunity, under the scenario established in Article 22 subsection b) of the Criminal Procedure Code, and after offering a declaration of great utility for reaching the truth of the investigated facts, the appellee court revoked the agreement, leaving the defendant completely defenseless. In this regard, the first thing this Chamber must clarify is that the Criminal Procedure Code itself clearly distributed the competencies in matters of applying the regulated principle of opportunity, leaving in the hands of the Public Prosecutor's Office the analysis of the convenience and opportunity of abstaining from exercising the punitive claim in the cases provided for in Article 22; likewise, it leaves to the criminal courts the control of legality in the use of said instrument, given the gravity that its application contrary to law would imply. In the specific case of subsections b) and f) of the aforementioned Article 22, the effects of the agreement signed by the Public Prosecutor's Office with the accused person are merely provisional and acquire firmness until the Trial Court definitively determines whether it is appropriate –according to the parameters provided for in the Law– to dispense with the criminal action against them. That is, it is clear that the Nombre11 signing of an agreement between the Public Prosecutor's Office and the accused in a criminal case, the second committing to provide information useful in the investigation, does not in itself confer a right to obtain a dismissal resolution in that process, but rather Nombre11 leaves the final decision in this matter in the hands of the judge… In the present case, it is obvious that the protected party could not demand that the Trial Court apply, without a prior judgment of legality, the agreement she signed with the Public Prosecutor's Office. Nombre02 things, the action of the appellee court, reviewing whether the agreement in question complied with the requirements of Article 22 subsection b), does not prove illegitimate, but rather conforms to its competencies, as was explained in the preceding paragraph…”, a vote that supports what is stated by this sentence appeals court and that the trial court of merit disregards, relying solely on the dissenting vote subscribed by Magistrate Fernando Cruz Castro, the same that furthermore does not call our conclusions into question either. Note that Judge Cruz Castro does not deny that the trial court could or should verify compliance with the requirements contemplated in Article 22 subsection b) of the C.P.P. What he questions is that said office took measures against the liberty of a person (the collaborator) against whom no accusation delineating their criminal responsibility had been formulated. That dissenting vote indicates: “… The intervention of the trial court against a decision adopted by the Prosecution, rejecting an agreement between the prosecuted party and the representative of the Public Prosecutor's Office, decreeing, at the same time, the detention of a person against whom no accusation had been formulated, constitutes an improper intervention that denaturalizes the jurisdictional function, because a requirement that ensures the impartiality of the judge is their dissociation from the requesting power. This separation ensures the effective validity of the judge's impartiality, which is one of the most important organic guarantees that define the jurisdictional function. Without the prosecutorial body having defined the issue, the court judges outlined a possible responsibility of the plaintiff, anticipating a judgment without the criminal action having been exercised. The Court rejects the agreement and the application of the principle of opportunity, but in decreeing the detention and ruling on the possible responsibility of a witness against whom the criminal action had not been exercised, it improperly assumes the functions that correspond to the prosecutorial body. The freedom of a citizen is not safeguarded satisfactorily if the judge assumes repressive and judging powers without the requesting body having formulated the accusation. The possible criminal responsibility of the plaintiff in a proceeding in which the prosecuting entity had not exercised the accusation constitutes an excess that violates the balance of powers and the clear differentiation of actors and powers governing the criminal procedure. The possible criminal responsibility that may correspond to a witness who testifies in such capacity and against whom the criminal action has not been exercised is an irrelevant issue that does not justify an anticipated judgment such as that exercised by the trial court, because no person who testifies under oath or without it may provide legitimate evidence that self-incriminates them. In order to safeguard against such a probability, legally inadmissible and whose consequences must be resolved in another proceeding, after the exercise of the requesting action, the court cannot meddle in the judging of a fact that has not been submitted for its knowledge. Nor was the possible departure from the country of the witness-defendant relevant, because such an aspect is a responsibility of the Public Prosecutor's Office, especially regarding a citizen against whom the competent body had not exercised its requesting power. Nor was this a flagrant crime, and for this reason, they could not decree the immediate detention of the plaintiff, as was done in the trial hearing. To affirm that the witness was not detained because they were placed at the disposal of the competent authorities is a fallacious argument with which an attempt is made to conceal an action in which jurisdictional power exceeds its limits, blurring the difference between accusation and judgment, concurrently violating the impartiality of the jurisdiction. As established by the criminal procedure code, the court may reject the agreement but may not base such determination on speculation about the possible responsibility of the crown witness, but must do so in a sentence, in accordance with the requirements provided for in Article 23 of the c.p.p. The Judge cannot anticipate the result that the accusation will have, and even less so if it is the trial court itself, because it is not possible for the latter to establish the possible authorship corresponding to the crown witness, when it has not yet ruled on the accusation in which the collaborator is excluded and in which other actors and possible co-perpetrators of the act are mentioned. The problem in this case is not that the agreement ensures the dismissal of the plaintiff, which would not be a legally admissible claim, but rather that the court imposed a limitation on the liberty of… without having the legitimacy that such a decision requires, given that the competent body had not exercised its requesting power. Although the Prosecution had not previously requested the judgment of legality that corresponds to the court of the intermediate stage (see last paragraph of Article 22 of the c.p.p.), such omission does not authorize the trial court to reject the prosecutorial discretion based on a series of assessments and speculations about the result of an action that the Public Prosecutor's Office has not exercised. The rejection of the prosecutorial discretion provided for in subsection b) of Article 22 of the c.p.p. must be based on the description and evidence of the main accusation, but it is not acceptable, as occurred in the present case, for the rejection to be based on an anticipated assessment of the evidence, Nombre02 as on an interpretation of the facts that the accusation does not contain. The rejection of the agreement cannot be based on a factual and legal determination that does not emerge from the accusation and the agreement; it is for this reason that Article 23 of the c. p. p. leaves the extinction of the criminal action in suspense, authorizing it only after the trial has been held, which is the opportunity at which the court, in the full exercise of its powers, once the evidence has been received in accordance with the constitutional principles that legitimize its reception and assessment, determines whether the collaboration is legally acceptable, defining two points: a) whether it concerns a person whose action in the criminal activity is less reprehensible than that which it helped resolve and, secondarily; b) whether the collaboration provided by the collaborating witness has been decisive. The evaluation of these parameters cannot be done before holding the trial, as the trial court did, constructing an accusatory hypothesis over which it had no involvement whatsoever, as the Criminal Procedure Code well defines by recognizing, as corresponds, that the possible responsibility of the crown witness must be resolved until after the trial has been held (see second paragraph of Article 23 of the c.p.p.). Given the non-compliance with the provisions provided for in the Code of Criminal Procedure (last paragraph of Article 22 and 24 of the c.p.p.), the court could well have rejected the agreement that the Public Prosecutor's Office presented unexpectedly, but without ruling on the content of the agreement and the plaintiff's possible participation. Nor could the court, as explained, decree the detention of a person who was not an offender caught in flagrante delicto and against whom the Public Prosecutor's Office had not exercised criminal action. The admissibility or legality of the prosecutorial discretion applied by the Public Prosecutor's Office does not authorize the Court to exercise the powers that correspond to the prosecution. By virtue of the arguments that have been set forth, the undersigned of this vote considers that although the surprise presentation by the Public Prosecutor's Office of the agreement with the plaintiff violates the principles of procedural fairness (lealtad) and due process, such error does not authorize the trial court to exercise powers that correspond to the prosecutorial body, ruling on the possible criminal responsibility of a person without an accusation having been formulated against them, and decreeing, based on such determination, the illegitimate detention of the plaintiff...”. As observed, in this dissenting vote the possibility of the trial court controlling compliance with all the requirements provided for in Article 22 subsection b) C.Nombre06 is not denied. On the contrary, this option is admitted, on the understanding that this must be done once the evidence has been presented at trial. For all the reasons set forth, this chamber concludes that jurisdictional control over the applicability of the prosecutorial discretion must exist, verifying compliance with the legal requirements –without distinctions, since the law does not distinguish in this regard– that the procedural code demands for its application. It is not a matter of supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, criminal prosecution should be dispensed with (since certainly, no one disputes that determining the opportunity of the measure in a specific case is the purview of the requesting body), but rather of guaranteeing that the action of the former –understood to mean, the application to a specific case– conforms to the legal system. Finally, the fact that the prosecutorial discretion must be processed in a separate file is not, as the trial court states, an argument that exempts it from its duty to control compliance with the requirements that gave rise to its application, since although it is true that the declaration of the collaborating defendant takes place at trial, meaning that the evidence is produced at that moment and not before, it cannot be ignored that said declaration has its reason for being in the aforementioned criterion. If this had not been negotiated, the collaborator would not render testimony, and to that extent we cannot exclude that procedure from judicial control. As correctly indicated in the vote subscribed by Judge Camacho Morales, the promise of impunity, the promise to dispense with criminal prosecution, whether total or partial, is what moves the collaborator's will, and therefore it is necessary to corroborate whether that promise conforms or not to the regulations. This, logically, must take place in the main process, since it is there that the collaborator's criminal prosecution is dispensed with and the punishable conducts are accused which, in light of Article 22 subsection b), must be more reprehensible than those that cease to be of interest to the Public Prosecutor's Office. The fact that the prosecutorial discretion was accepted by a criminal judge is not an obstacle to the matter being heard by the trial court, since in our criminal procedure the parties may repeatedly protest defects that cause them harm, be these absolute or relative when they have not been validated. That said, we also have that in the appealed sentence, some additional reasons are set forth to support the refusal to rule on the criterion, which it is appropriate to examine carefully. The first is that the process in which the prosecutorial discretion was processed is independent of this one. As already anticipated, this Nombre05 set aside that the declaration of [Nombre01 064] was to be rendered in this case; that the prosecutorial discretion takes place because, at least in principle, the conduct of [Nombre01 064] is less reprehensible than that attributed to other defendants and, finally, that it will be based on the provisions of this matter that it will be determined whether the expectations for which the exercise of criminal action was suspended have been satisfied.

That is, even if it is admitted that the opportunity criterion (criterio de oportunidad) is processed in a separate certified record independent of the main case file, and that the account of [Nombre01 064] contained therein does not have to be made known to those who appear as defendants in this matter (see resolutions No. 4142 of 2:51 p.m. on June 2, 1999, and No. 1119 of 11:09 a.m. on February 4, 2005, both from the Constitutional Chamber), the legality of the procedure (compliance with the requirements set forth in the C.P.P.) is among the issues that the trial court can and must control (whether because the parties request it, or because it understands it must do so ex officio), just as occurs with other procedural acts that take place in previous stages and through which the door is opened for a particular piece of evidence to be produced or incorporated in the trial (e.g., the resolution ordering an early jurisdictional proof). Furthermore, the trial court incurs in contradictions, since if by arguing that the opportunity criterion was processed in an independent proceeding it refused to review the requirements that it—erroneously—classified as substantial (namely, the lesser reproach to the collaborator), then it would also lack jurisdiction to verify compliance with those it called formal (namely, an express request from the prosecution with the approval of the hierarchical superior and jurisdictional approval), given that it did exactly that. To the above, an additional inconsistency must be added, namely, that despite the trial judges agreeing to examine the procedural issues, they omitted to rule on the claims raised by the defense attorneys for [Nombre01 033] and [Nombre01 041] regarding the lack of reasoning in the resolution issued by the criminal judge (cf. folios 13,676 front and back, 13,677 back, volume XXVIII), this despite the fact that the aforementioned defect is clearly one of form. As a second argument, the professionals signing the majority opinion maintain that regarding the opportunity criterion, the decision can only be challenged through the appeal against the definitive dismissal (sobreseimiento definitivo) that may be issued in the proceeding where the application of that legal institution is processed. Such a position, evidently, renders the right of defense of the accused in the main proceeding who are harmed by the collaborator's statement nugatory, especially considering that they are not parties to that procedure (in fact, the lower court itself recognizes this). Moreover, the definitive dismissal would occur, according to Article 23 of the Code of Criminal Procedure, once the judgment—understood to be the one issued by the trial court in this matter—has become final (firmeza), at which point the position of the defendants, already convicted by then, would be consolidated. That is, we are faced with the absurdity that the procedure to apply an opportunity criterion to a collaborating defendant, even in cases where it is openly illegal, would be exempt from all control, since according to the lower court's thesis, the so-called substantial requirements can never be assessed by the judge and because, simply put, those aggrieved by the decision to apply the criterion cannot challenge it in any proceeding (neither in the one being pursued against them, nor in the one where the criterion is processed, since they are not parties), which would imply a flagrant violation of Article 42 of the Political Constitution. As a third argument, the majority opinion holds that analyzing the issue would imply advancing a criterion. This is also unacceptable, since it is one thing to compare the reproaches based on the information provided by the requesting body when seeking the opportunity criterion, and quite another to issue a ruling on whether those conducts actually occurred or not, the latter being what would compromise the impartiality of the trial court. In any case, the option remained to defer the resolution of the issue for judgment, as expressly indicated by Article 342 of the Code of Criminal Procedure and as stated by Magistrate Cruz Castro in the dissenting opinion the judges invoke. For all the foregoing reasons, this chamber concludes that the application of the opportunity criterion provided for in Article 22, subsection b) of the C.P.P. is subject to jurisdictional control, and therefore the court, whether it be the criminal judge, the trial court, and even the appellate bodies for judgment and cassation, when applicable, must verify compliance with all the requirements that the legislator demands for such purposes. It is not about supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, it is considered that criminal prosecution should be waived, but rather about ensuring that in those chosen by the requesting body, the formalities required by the legal system for such purposes are met.

• 2)Examination of the opportunity criterion granted to [Nombre01 064]. Defects present in its procedure and in the resolution that authorized it. As already explained, this court does not share the lower court's criterion in the sense that it lacked jurisdiction to assess the appropriateness of the opportunity criterion and, in particular, to verify whether the conducts for which criminal prosecution was waived were less reprehensible than those whose prosecution was facilitated. For this reason, and given that some parties have also claimed this defect at this procedural stage, we proceed to carry out the aforementioned examination at this time, concluding that the application of the cited legal institution for the benefit of [Nombre01 064] is illegal. The resolution accepting the application of the opportunity criterion was issued by the Criminal Court of the Second Judicial Circuit of San José, at 9:51 a.m. on June 1, 2007 (cf. folios 41 to 89 front, of the file called “Legajo de solicitud del criterio de oportunidad”). Regarding this, the first thing that must be noted is that it is a resolution devoid of legal reasoning (fundamentación). The criminal judge who resolved the matter, besides transcribing the 116 points cited by the Public Ministry in its request, granted it, noting a series of points that can be synthesized as follows: i) Alongside mandatory criminal prosecution, derived from the principle of legality, the law also authorizes the Public Ministry to waive it in certain cases regulated by the same law and for “the convenience of the criminal policy of the current system” (f. 83 front of the mentioned file); ii) defining criminal policy and waiving criminal prosecution are discretionary powers that cannot be controlled by the judge: “In this investigation, the prosecutors exercise that power and request for the benefit of the defendant [Nombre01 064] the application of the opportunity criterion under the premise of subsection b) of the cited Article 22 of the CPP, the request that is heard, and emphasis is placed on the discretionary powers that cannot be controlled by the judge, so that for reasons of procedural economy, and as ultimately it is the Public Ministry that determines whether to pursue criminal prosecution or to waive its exercise in the specific case” (sic, f. 83 mentioned); iii) the request has the approval of the hierarchical superior; iv) after citing Articles 22 subsection b) and 23 of the Code of Criminal Procedure, the criminal judge states that the application of the criterion is appropriate. At this point, she transcribes what was indicated in the request made by the Public Ministry (f. 85 to 87 front) and, closing the direct quote, states: “According to the lady prosecutors (sic), the compelling reason motivating this petition by the Public Ministry is based on the premise that it is a matter of complex processing, in which the defendant [Nombre01 064] made a written statement for the purposes of the opportunity criterion, committing to give testimony, at the trial stage or in any oral hearing, where he would provide or ratify all truthful, useful, and pertinent information for the clarification of the facts investigated against the defendants [Nombre01 041], [Nombre01 078], [Nombre01 046], and [Nombre01 033]. It also points out that the conduct attributed to the defendant [Nombre02 064] is less reprehensible than that of the defendant [Nombre01 033]. On the other hand, it should be noted that the Prosecutor files the request before formulating the accusation, in writing, before the Judge of the Intermediate Stage and, as indicated supra, with the authorization of the hierarchical superior, which are the formal aspects whose compliance the judge must verify, and to which the control of legality that must be carried out is ultimately limited. Consequently, this being the case, the request is granted...” (F. 87 front, highlighting is not from the original). As can be observed, there is no ruling whatsoever regarding whether the conducts attributed to [Nombre01 064] were or were not less reprehensible than those attributed to [Nombre02 041], [Nombre01 078], [Nombre01 046], and [Nombre01 033], accused whose intervention in the facts, as stated in the application for the opportunity criterion, is what was sought to be proven through the testimony [Nombre02 064] would give at trial (cf. folio 28 front of the file in question, the same as folio 1, point 1.- of the file called “Acuerdo entre la fiscalía y [Nombre 064] para la aplicación del criterio de oportunidad”, evidence No. 776). We are faced with a resolution lacking legal reasoning and, therefore, ineffective, either because the criminal judge simply did not set out her reasoning regarding the issue of the reproach attributable to the collaborator, or because she decided not to do so under the belief that such a point is beyond jurisdictional control. In fact, this seems to be inferred from the resolution (cf. last lines reproduced), a position that, for the reasons stated supra, is erroneous. In addition to this, the conclusion set forth above—namely, that the resolution presents a defect of lack of reasoning—does not change even when hypothetically assuming that the jurisdictional body, by transcribing some excerpts from what the Public Ministry stated, made them its own (and the hypothetical nature of the situation is emphasized). The foregoing because the request formulated by the requesting body also presents the same defect. As can be deduced from its reading, despite the Public Ministry seeking the application of an opportunity criterion in favor of [Nombre01 064] to facilitate the prosecution of [Nombre01 041], [Nombre01 078], [Nombre01 046], and [Nombre01 033], its request did not dedicate a single line to explaining why the conducts of [Nombre 064], from whose criminal prosecution it was sought to waive, were less reprehensible than those of the defendants [Nombre01 041], [Nombre01 078], and [Nombre01 046]. Consequently, neither did the ruling that authorized its application and which, as already stated, was limited to transcribing what the requesting body said. In the case of [Nombre02 033], the situation is no less serious, since on the point in question—the reproach—it only states that the conduct of [Nombre01 064] is less reprehensible than that of [Nombre01 033] because the latter was [...] Nombre53 country and the former a member of a board of directors of an autonomous institution; because [Nombre01 033] was the one who appointed the majority of Nombre10 of the mentioned board and had influence over the actions of those institutions, and because [Nombre01 064] was also an advisor to the presidential house, thus owing obedience to [Nombre01 033]. From the above, indicated the Public Ministry, “… the enormous power that [Nombre01 033] held over 'the institutional direction and action,' as well as on a personal level, over [Nombre01 064] can be inferred” (f. 30 front of the file). That is, if we stick to the request, which it bears reiterating, was not assessed by the criminal judge but merely reproduced in her resolution (f. 86 to 87 front), the only argument offered to sustain that the conduct attributed to [Nombre01 033] was more reprehensible than that carried out by [Nombre01 064] relates to the position held by the former, leaving aside all consideration of the conducts actually attributed to [Nombre01 064] and [Nombre01 033]. As if all the foregoing were not enough to understand that the resolution authorizing the opportunity criterion is ineffective, there is a defect of greater magnitude that renders the decision illegal. And it is that, as was denounced at the trial stage and now, in the judgment appeal phase, it can be deduced from the case record that the criminal judge who applied the opportunity criterion did not have all the necessary information to resolve the matter. In reality, the conducts that can be attributed to [Nombre01 064] and from whose criminal prosecution it was waived, were more than those referred to by the Public Ministry when requesting the opportunity criterion. From the very statements that [Nombre01 064] had made before the Public Ministry up to that point, in which he narrated conducts unrelated to those investigated here which can also be considered criminal, as well as from expert report 297-DEF (evidence No. 598) and case file No. 08-000032-0615-PE, pursued against Nombre08 for the alleged crime of breach of duties (and which was admitted as evidence at this procedural stage), it can be deduced that in addition to what is related to the contracting of the 400,000 lines, at the time the criterion was negotiated there were sufficient elements to suspect that [Nombre01 064] had received many other “rewards or royalties.” Specifically, $110,207.00 and $29,833.95 from [Nombre01 083] and [Nombre 085] (as per, expert report No. 297-DEF-540-04/05, folio 38 of the report); an economic retribution estimated at $56,000.00 based on what was resolved regarding the La Joya electrical generation project (cf. investigative statement of [Nombre01 064] given at 4:15 p.m. on September 30, 2004, f. 132 front of volume I; complaint filed by [Nombre01 033], f. 19 front of case file No. 08-000032-06154-PE and note published in the national news section, on La Nación.com, on Saturday, October 2, 2004, titled “[Nombre01 064] admits another 'reward' as an ICE director,” visible at folios 256 to 258 front of the aforementioned case file No. 08-000032-06154-PE). [Nombre01 064] also described some advantages of economic content received on his trips to Prague and Switzerland (cf. investigative statement of September 30, 2004, and complaint by [Nombre01 033], f. 20 front of case file No. 08-000032-06154-PE). Finally, in the complaint filed by [Nombre01 033], it was mentioned that [Nombre01 064] received significant sums of money from [Nombre01 091] related to contracts other than those for cellular telephony, as well as a trip to Brazil paid for by that company [cf., folio 19 of the mentioned case file No. 08-000032-06154-PE and f. 1771 of volume V (this regarding the trip to Brazil)]. Now, in that same proceeding—the one pursued against Nombre08—, Prosecutor Maribel Bustillo Piedra clearly admitted that, with the exception of the royalties enjoyed in Prague and Switzerland, the facts that according to [Nombre01 033] had not been investigated (that is, matters related to the monies that [Nombre01 046] transferred to [Nombre01 064]; to the funds from [Nombre01 060] associated with contracts No. 424 H 39552, 424 Nombre21 44031 and 424 H 39562; to the trip to Brazil and to the economic retributions related to La Joya and [Nombre01 083]-[Nombre01 270]) had not been subject to criminal prosecution because they were covered by the opportunity criterion. Specifically, Ms. Bustillo Piedra requested the dismissal of the complaint filed by the defendant [Nombre01 033] against the then Attorney General of the Republic with the following arguments: “DISMISSAL OF THE COMPLAINT IS REQUESTED. The undersigned, MARIBEL BUSTILLO PIEDRA, Prosecutor of the Unit for Various Crimes… requests the Dismissal of these proceedings, based on the following: STATEMENT OF FACTS. A. Mr. [Nombre01 033], in his capacity as complainant, states that on the occasion of investigation No. 04-006835-647-PE in which [Nombre01 064] appears as a defendant (who has the exercise of criminal prosecution suspended due to the application of the institution of the Opportunity Criterion-), the latter acknowledged not only having participated in acts of corruption for the benefit of company [Nombre02 091] related to the award and contracting of four hundred thousand mobile telephone lines, but also acknowledged having carried out another series of criminal conducts, supported even by documentation existing in the main case file, for example, the reports of the Section of Economic and Financial Crimes of the Judicial Investigation Agency (Organismo de Investigación Judicial), conducts that, in his opinion, were not investigated by the Public Ministry.

The criminal acts to which the complainant refers and which he indicates have not been subject to investigation by the Public Ministry against [Nombre01 064], refer to:

 Monies improperly received from the company [Nombre 091] on the occasion of: the purchase of fixed-line switchboards of the “ICE-Switching program 2000-2001”, the purchase for the expansion of telephone switchboards carried out by ICE on May 23, 2002, and an ICE expansion program ($325,253.32).

 Monies improperly received from [Nombre01 280] for the approval of the concession for the “La Joya” hydroelectric project ($56,000.00).

 Monies improperly received from [Nombre01 046] for payments made to him by the company [Nombre 091] for “various reasons” ($62,562.50).

 Monies improperly received from the company [Nombre01 270]-[Nombre01 083] for a contract granted ($110,207.00).

 Cost of tickets for the San José-Rio de Janeiro, Rio de Janeiro-São Paulo, São Paulo-San José trip in first class paid for by the company [Nombre 091] ($5,617.00).

B. On the other hand, the complainant [Nombre01 033] points out that [Nombre01 064] also acknowledged in his investigative statement having received royalties as an ICE Director on a trip taken to Prague and Switzerland, facts which he indicates have not been investigated by the Public Ministry in a premeditated manner to illegally protect him.

II.-On the merits of the matter.

After a detailed study of these proceedings, the undersigned considers… that what is pertinent in this case is the dismissal of these proceedings, because the facts denounced by Mr. [Nombre01 033] do not constitute a crime.

A. The complainant himself in his brief… offers the answer as to why the mentioned facts have not, for the moment, been subject to criminal prosecution, by indicating…:

“…such facts have not only been proven by his confession (that of [Nombre01 064]) but also expert evidence, and yet due to the evident negotiation agreement existing between [Nombre01 064] and Prosecutor Nombre08…, they have not to date been subject to any type of investigation or criminal charge against the confessed criminal [Nombre01 064]…” Indeed. The Public Ministry has agreed with the defendant [Nombre02 064] on the application of the institution called the Opportunity Criterion, and in this regard a formal agreement exists and therefore, at least for the moment, he is not subject to criminal prosecution. This is an opportune moment to make some clarifying considerations… The mentioned Opportunity Criterion was not carried out between [Nombre01 064] and the defendant Nombre08, but rather between [Nombre01 064], his private defense attorney Edwald Acuña Blanco, and the prosecutors of the Public Ministry Carlos Morales Chinchilla, Criss Gonzáles Ugalde on January 31, 2006, being authorized by the then Deputy Prosecutor of the Office of Economic, Corruption, and Tax Crimes (Fiscalía de Delitos Económicos, Corrupción y Tributarios), Mr. Warner Molina Ruiz. On the other hand, the mentioned facts have been subject to investigation, to the point that, as the complainant indicates, they are contained in various documents that form part of the main case file, among them, the police reports of the Section of Economic Crimes of the Judicial Investigation Agency, but as previously indicated, they form part of the agreement for the application of the institution of Article 22… Certainly, the investigation carried out by the Deputy Office of Economic, Corruption, and Tax Crimes of the Public Ministry involves an extremely complex processing of serious corruption crimes committed in the highest spheres of those who held political power in our country in the early years of this decade… The conduct of [Nombre01 064] is less reprehensible than that of [Nombre01 033], since in the sphere of public function, when dealing with corruption crimes, the mere condition of being the [...] Nombre05 a greater reproach than that which any other public official could merit, regardless of the position they hold…

The Deputy Office of Economic, Corruption, and Tax Crimes of the Public Ministry analyzes that all the exposed procedural prerequisites concur in the case and for this reason, decides to apply the institution with the defendant [Nombre01 064], not only for the monies improperly received from the company [Nombre02 091] corresponding to the contracting by the Costa Rican Institute of Electricity of four hundred thousand lines of GMS (sic) wireless telephone technology, but also for the other mentioned criminal acts. This clearly follows from the “Agreement for the application of the opportunity criterion” carried out in the Deputy Office of Economic, Corruption, and Tax Crimes on January 31, 2006, which the undersigned representative of the Public Ministry had before her and which may be requested from that office by the Criminal Judge for analysis. The agreement, in what is relevant, establishes:… “Present in the Office of Economic, Corruption, and Tax Crimes, the defendant [Nombre01 064], of legal age… his defense attorney… the Prosecutors… for the purpose of setting the limits regarding the application of an opportunity criterion in favor of the defendant [Nombre01 064]… it is agreed: 1. The Public Ministry… commits to requesting in favor of the defendant [Nombre01 064], that the criminal prosecution in the cause indicated above be waived totally, as long as and when the statement he commits to give in this case is not contradicted by other evidentiary elements that make it appear false, wholly or partially…” In the agreement in question, it can be observed that the Public Ministry, in the exercise of its legally conferred powers, commits to requesting in favor of [Nombre01 064] the waiver of criminal prosecution, not only for the fact related to the money improperly received from the company [Nombre 091] on the occasion of the contracting by the Costa Rican Institute of Electricity of the four hundred thousand mobile lines…, but for the entirety of the criminal prosecution in cause 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 indicated single number, so much so that the defendant was questioned investigatively regarding all those facts and well before the application of this agreement, on September 30, 2004… B. On the other hand, the complainant [Nombre01 033] states in his brief that in addition to all the commented illicit acts, [Nombre01 064] also confessed, in his first investigative statement dated September 30, 2004, in cause 04-006835-647-PE, to having received royalties as an ICE Director on a trip taken to Prague and Switzerland, which is processed in independent cause No. 04-004671-647-PE… this cause was initiated in the Public Ministry before cause 04-006835-647-PE was initiated, this is the reason why these facts are outside the agreement for the application of the opportunity criterion carried out on January 31, 2006…” (cf., folios 27 to 36 front of case file No. 08-000032-0615-PE, pursued against Nombre08, for breach of duties; the highlighting is not from the original). As can be observed, in the same dismissal request formulated by Ms. Bustillo Piedra in favor of the then Attorney General of the Republic, Mr. Nombre08, the cited professional categorically stated that the opportunity criterion encompassed not only the facts related to the contracting of the 400,000 lines, but also the other facts known in cause No. 04-006835-647-PE and that, initially, she listed in the dismissal request, clarifying that they were part of the same investigation and that [Nombre01 064] was investigated in relation to them. From the facts covered by the negotiation with the collaborating defendant, Ms. Bustillo Piedra only excluded those related to the trips to Prague and Switzerland, which, she said, were being investigated in an independent cause. Now, this court has also taken on the task of examining both the request for the application of the opportunity criterion and the resolution that authorized it, determining the following: a.- the economic retributions delivered by [Nombre01 046] to [Nombre01 064] as recognition for the payment management efforts that the collaborating defendant carried out before [Nombre01 091], are indeed contemplated in the negotiation (f. 17 to 18, 65 to 67 front, points identified with numbers 80 to 85, file of the request for the opportunity criterion); b.- the funds transferred to [Nombre01 064] and related to contracts No. 424 H 39552, 424 Nombre21 44031 and 424 H 39562 (contracts cited by the complainant [Nombre 033] at folios 6 to 8 front of case file No. 08-000032-0615-PE), are indeed linked to the issue of the 400,000 GSM mobile telephone lines, as according to what is stated in the appealed judgment, those contracts were merely fronts used to receive the funds that were subsequently delivered to various public officials on the occasion of the aforementioned matter. As such, they are sums that are included within the scope of the opportunity criterion (cf. point 97.- et seq., both of the request and of the resolution authorizing the application of the criterion and which allude to the delivery to [Nombre01 064] of $2,560,253.32 on the occasion of the contract for the 400,000 lines, folios 20 to 28 and 70 to 82 front of the file). c.- As for the economic retributions associated with the La Joya project and the companies [Nombre01 083]-[Nombre01 270], as well as the trip to Brazil, there is no reference whatsoever in the agreement for the application of the opportunity criterion. d.- The acceptance by [Nombre 064] of an economic retribution from [Nombre 085] is not mentioned either in the complaint filed by [Nombre 033] (case file No. 08-000032-0615-PE), or in the request for the application of the criterion, or in the resolution that authorized it. From all the foregoing, several conclusions can be drawn:

• 1)At the time the opportunity criterion was negotiated, in this cause there were indications to attribute to [Nombre01 064] criminal acts distinct from those related to the contract for the 400,000 GSM mobile lines and which had to do with his receipt of various economic retributions from different persons—natural and legal—, namely: a) sums delivered, apparently, by [Nombre01 280], for the award of the La Joya hydroelectric project; b) sums delivered by the companies [Nombre01 083]-[Nombre01 270]; c) funds transferred by [Nombre02 085]; d) a trip to Brazil paid for by the company [Nombre 091]; and, finally, e) monies delivered by [Nombre01 046], apparently as a reward for having interceded with [Nombre01 091] so that they would pay [Nombre01 046] what they owed him.
• 2)While the retributions mentioned in cited point e) were indeed contemplated in the request for the criterion and the resolution that authorized it, the economic retributions related to the La Joya hydroelectric project, those from the companies [Nombre02 083]-[Nombre01 270], and the trip to Brazil, for an unknown reason were not included, this despite being part of the agreement, as acknowledged by Ms. Bustillo Piedra, in case file No. 08-000032-0615-PE.
• 3)Although the gift (dádiva) given by the company [Nombre 085] was not contemplated in the request for the application of the opportunity criterion nor was it mentioned by Ms. Bustillo Piedra when requesting the dismissal of the cause pursued against Mr. Nombre08 (which is understandable, because [Nombre01 033] also did not include it in his complaint), at the time of negotiating the opportunity criterion there were elements that provided notice of its existence.
• 4)Regarding all of those gifts (dádivas)—including the one from [Nombre 085]—the Public Ministry did not carry out any investigation.
• 5)There is an unbridgeable inconsistency between what was stated by Ms. Maribel Bustillo Piedra in the referred case file No. 08-000032-0615-PE and what was indicated both in the request for the opportunity criterion and in the resolution that approved it.

An inconsistency that can only be explained in two ways: i) Attorney Bustillo Piedra would have been untruthful in case file No. 08-000032-0615-PE when requesting the dismissal of the complaint filed against the then Attorney General of the Republic; or ii) Attorney Bustillo Piedra told the truth and, therefore, it must be concluded that although some of the acts initially attributable to [Name 064] (the gifts from Bolaños Alpízar, from the companies [Name 083]-[Name01 270] and the trip to Brazil), despite having been considered when negotiating the prosecutorial discretion criterion (criterio de oportunidad), for unknown reasons were not contemplated or included in the application for its application. That is, in relation to those acts, a "de facto" prosecutorial discretion criterion was negotiated, devoid of judicial control. For the undersigned, of both alternatives, the second is the one deemed reasonable, not only because in the request for dismissal formulated by Attorney Bustillo Piedra she recommended that the judicial authority examine the documents related to the criterion (which demonstrates she acted with transparency), but also because none of the aforementioned gifts have been the subject of criminal investigation and prosecution. Resorting to this same argument (the absence of investigation and prosecution), it is feasible to conclude that the acceptance by [Name01 064] of the gift given to him by the company [Name 085] was also one of the conducts negotiated without complying with the established legal formalities. Although this was not described in the request for dismissal made by Attorney Bustillo Piedra, nor in the application for the prosecutorial discretion criterion or the resolution that approved it, it is an act that has been given the same treatment as the economic retributions described above and which, according to the prosecutor so often mentioned, are included in the prosecutorial discretion criterion. At this point, and regardless of the consequences deriving from the foregoing, for this Chamber it is necessary to underline the errors that have been committed, not only by the requesting body (which -perhaps through oversight- omitted to inform the judicial body about some of the acts whose criminal prosecution it dispensed with when negotiating a prosecutorial discretion criterion with [Name01 064]), but also by the criminal judge who resolved the request for dismissal formulated in the cited case file No. 08-000032-0615-PE, since at the very least, to accept it, they should have verified what was stated by Attorney Bustillo Piedra, just as this professional herself requested when formulating the request for dismissal. A simple reading of the application for the prosecutorial discretion criterion and the resolution that authorized it would have sufficed to conclude that some of the economic retributions received by [Name02 064], unrelated to the issue of the 400,000 lines, were not contemplated (at least not formally and expressly) in the negotiation carried out in this matter. It is important to note that the defect of interest, understood as the one that occurred in this proceeding, was not corrected by the requesting body either, despite having had that possibility, either when the defendant [Name01 033] criminally denounced Mr. Name08 for breach of duties, on July 1, 2008 (folio 1, case file No. 08-000032-0615-PE), or during the trial, when the issue was questioned by the defense (cf. folios 13,676 to 13,705 verso, volume XXVIII). The majority opinion states that the acts submitted to the prosecutorial discretion criterion are solely those related to the awarding of the 400,000 mobile telephony lines, since only these are included in the factual basis of its application and in the resolution that approved it; hence, the defense attorneys are incorrect in asserting that the criminal judge was deceived to favor [Name01 064], guaranteeing him impunity for crimes not included in the proceeding (folio 16,079 recto, volume XXXIII). This criterion is not shared. As already explained, the discrepancy between what was raised in the request for dismissal formulated in case file No. 08-000032-0615-PE and what was contemplated in the application for the prosecutorial discretion criterion in this cause is evident, without it being plausible, to establish the scope of the agreement, to rely solely on what is indicated in the second, because the Public Prosecutor's Office (Ministerio Público), besides being a single entity, was the one that, through one of its representatives, categorically admitted and assured that a series of acts initially attributable to the cooperating defendant had not been investigated because they were included in the negotiation. Even during the trial, [Name01 064], who refused to testify regarding all the aforementioned topics, namely, the economic advantages originating from [Name01 083], [Name01 270], [Name 085], and the one linked to the project called La Joya (cf. folios 14,975 and 14,976 recto, volume XXXI), also refused to indicate whether any of those acts were covered by the prosecutorial discretion criterion (folio 14,995, first line). For the undersigned, the thesis of the majority opinion, in the sense that what is relevant is what is set forth in the agreement and not what may have happened outside of it, would imply admitting that the Public Prosecutor's Office can handle a double discourse in negotiation matters: one that is recorded within the proceeding and on the basis of which compliance with the legal requirements for the application of the legal figure is examined, and another one outside judicial control, where it can simply dispense with prosecuting certain acts in exchange for cooperation. This is a stance that is inadmissible in constitutional terms, because -as already explained- by reason of the principle of legality that governs our system, the Public Prosecutor's Office is obligated to exercise criminal action, a duty that can only be excepted in cases exhaustively indicated by the legislator and under judicial control. And this control can only be carried out when the requesting body, when applying for a prosecutorial discretion criterion, objectively and transparently contemplates all the acts included in the agreement, without omitting core information. Only then can the judicial authority determine if the conduct of the cooperating defendant, whose criminal prosecution is dispensed with, is less reprehensible than that of the defendants who are affected by the criterion. This is an issue that acquires greater importance in legal systems like ours, where the criminal conduct of the collaborator whose prosecution is dispensed with is not necessarily part of the act whose continuation it prevents or whose criminal prosecution it facilitates (thus, Name54. "The Crown Witness". In: Costa Rican Criminal Procedural Law. San José, Costa Rican Association of Criminal Sciences, 2007, pp. 592 and 599. In the same sense, Third Chamber, resolution No. 2001-0737). And if, by reason of the prosecutorial discretion criterion, impunity can be guaranteed to the collaborator for acts different from those investigated and resolved with their help (in this case, those related to the 400,000 lines and the gifts that [Name01 046] gave them as thanks for their collection efforts before [Name02 091]), the importance that the Public Prosecutor's Office, when applying for the legal institute, does not omit any detail about all the conducts that will cease to be investigated and prosecuted is notorious, not limiting itself to the description of those whose criminal prosecution is facilitated by the so-called crown witness, since it is on the whole set of acts that the assessment or comparison of reprehensibility must be made. In summary, if the agreement includes, as happened in this case, conducts of the collaborator that are not part of the investigated act, the application for a prosecutorial discretion criterion must include them, because otherwise, the judicial body lacks the necessary information to control whether it is justified to apply the mentioned legal institute -which has clear utilitarian connotations- to the detriment of the principle of legality and mandatory exercise of criminal action. For all the foregoing, this Chamber understands that, when applying for the prosecutorial discretion criterion, the requesting body had the duty to set forth all the acts involved in the pact, whether they were related to the investigated act or were distinct and independent. If they were covered by the agreement and it was intended to dispense with their criminal prosecution, they should have been described, because judicial control is exercised over the agreement and not, as some might interpret, over a part of it, that is, the part related to a particular investigation; a position that -it is reiterated- would open the door for the requesting body to arbitrarily dispose of the exercise of criminal action, making, on one hand, within the proceeding, negotiations that are favorable to its interests and in which the requirements of lesser reprehensibility or guilt of the collaborator are satisfied, and, on the other hand, outside the legal system, other agreements, exempt from any judicial control. According to Attorneys Criss González Ugalde and Maribel Bustillo Piedra (folio 171,400 and 171,401 recto, volume XXXVIII), it cannot be asserted that the requesting body concealed information from the criminal judge because, although the processing of the criterion was carried out in a separate file, the application mentioned the case in which it was required (namely, No. 04-6835-647-PE). That is, according to these professionals, it was enough for the judge who had to resolve on the application for the criterion to examine the content of the investigation to discover that [Name01 064] had received other economic retributions. Such reasoning by Attorneys González and Bustillo is erroneous, since according to Art. 22 of the C.P.P., it is the Public Prosecutor's Office that must decide whether to dispense with criminal prosecution totally or partially, or whether to limit it to one or several infractions. That is, the examination that the criminal judge must make must be based on the limits established by that body. This is so much the case that, even hypothetically assuming that the trial court detected that additional acts to those contemplated in the petition were being aired in the case, this had no importance, since in accordance with the norms regulating the matter, it could well be understood that in relation to those, criminal prosecution remained in force, something that as of today is known not to have happened in this case, not only because of the statements made by Attorney Bustillo Piedra in case file No. 08-000032-0615-PE, but also because despite the passage of time, the acceptance made by [Name01 064] of a series of advantages of patrimonial content presented to them outside the acts submitted to judgment in this matter has not been investigated and prosecuted. This confirms what has been argued, in the sense that the requesting body is obligated to act with extreme transparency, objectivity, loyalty, and rigor, reflecting in the agreement ALL the acts submitted to negotiation and not only those it deems opportune. Finally, the situation of [Name01 064] himself cannot be ignored, because if he provided cooperation, it was because the requesting body committed to dispensing with the criminal prosecution of a series of conducts, making it inadmissible to endorse practices that cast doubt on the scope of the agreement, preventing the cooperating defendant himself, should it be necessary, from demanding compliance with what was agreed upon.

• 3)Hypothetical inclusion of the conducts omitted by the requesting body when applying for the prosecutorial discretion criterion and new assessment regarding the reprehensibility to be formulated concerning the conducts charged to [Name01 064], in comparison with those of other defendants. Weighting of the arguments put forth by the trial court regarding the specific topic. The resolution that authorized applying the prosecutorial discretion criterion in favor of [Name01 064] not only lacks reasoning but was also adopted without having all the necessary information for such purposes, since the Public Prosecutor's Office omitted to include in the application some of the acts whose criminal prosecution it had agreed (apparently "de facto") to dispense with. This defect acquires relevance to the extent that, with the inclusion of those acts, the judicial body could have concluded that the collaborator's conduct was not less reprehensible than that of those defendants against whom the mentioned legal institute was negotiated. This being the case, to determine the essentiality of the error, it is necessary to proceed to carry out this exercise of hypothetical inclusion, but not before pointing out some extremes: 1) As already indicated, regarding [Name01 041], [Name01 078], and [Name01 046], neither the requesting body when applying for the prosecutorial discretion criterion, nor the criminal judge who resolved on that application, ruled on the reprehensibility that should be attributed to them compared to that which should be attributed to [Name01 064]. It is a topic that was simply overlooked, contrary to what happened with [Name 033], since when applying for the prosecutorial discretion criterion, the requesting body alluded to him, explaining the reasons why it considered he deserved greater reprehensibility than [Name01 064], reasons that, as explained supra, the judicial body limited itself to transcribing, without making any weighting or verification. 2) The examination regarding the reprehensibility attributable to the defendants was made for the first time in the appealed judgment, considering in this respect only the acts that were described in the documentation prepared on the occasion of the agreement made, setting aside those conducts of [Name01 064] in relation to which it was negotiated and agreed ("de facto" and not de jure) to dispense with criminal prosecution. 3) The analysis this Chamber must now make must be taken back to the moment when the prosecutorial discretion criterion was authorized, considering, from an ex ante perspective, just as Article 22, subsection b) of the procedural code indicates, the conducts whose criminal prosecution was sought to be facilitated with the collaborator's contribution, not being able to include conducts different from these (although, from an ex post analysis, the lower court may have deemed them proven relying on that contribution and they may have been useful to argue that the reprehensibility attributable to some defendants is greater than that corresponding to [Name01 064]. Thus, for example, the trial court affirmed that the conduct of [Name02 041] is more reprehensible than that of the collaborator because the former made promises of gifts to several public officials and not only to [Name 064], an extreme regarding which [Name01 064] could not make any contribution, since he denied knowing if besides himself and [Name01 033], there were other public officials involved). 4) The comparison, which must be taken back to the moment when the agreement took place, must be made between the conduct or conducts of [Name01 064] whose criminal prosecution is dispensed with, and those of the defendants whose criminal prosecution is facilitated by the application of the legal institute; it is not legitimate, when establishing the magnitude of the reprehensibility, to consider the conduct of other defendants that the sentencing court deemed proven by relying on the testimony of [Name01 064] but against whom the prosecutorial discretion criterion was not negotiated (this is the case, e.g., of [Name01 001], of [Name01 022], or of [Name01 028]). That is, the study must be circumscribed to the reprehensibility to be formulated for the acts of [Name01 064] in comparison with that attributable to [Name01 078], to [Name 033], to [Name02 046], and to [Name01 041], as it was only in relation to these defendants that the requesting body sought to apply the prosecutorial discretion criterion. At this point, it is important to underline that this Chamber is not questioning that the statement of [Name01 064], once incorporated into the trial, was weighed as one more piece of evidence, even to the detriment of some defendants against whom the prosecutorial discretion criterion was not negotiated (in this same sense, read the judgment of the Third Chamber No. 1030-2014, from 10:00 a.m. on June 27, 2014), however, this does not mean, by any stretch, that to examine the degree of reprehensibility, regarding the cited Article 22, subsection b), that circumstance must be weighed, since at the moment the negotiation was carried out, which is precisely the moment to which we must go back, the causation of such effects was not contemplated, and this is so much the case that the negotiation occurred, it is reiterated, only to the detriment of specific defendants ([Name01 033], [Name01 046], [Name01 041], and [Name01 078]). Having clarified the above, we proceed to the substance of the matter, indicating that, for the reasons that will be set forth below, for this sentence appeals court, the conducts charged to [Name01 064] are not, nor were at the time of the negotiation, less reprehensible than those whose criminal prosecution was facilitated by his statement, and -to that extent- the prosecutorial discretion criterion is also illegal for this reason. When signing the agreement, there were elements to suspect that [Name01 064] was a public official prone to receiving irregular economic advantages. According to what was affirmed in proven facts numbers 113 and 114 (folio 15,450 recto), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) he received on the occasion of the contract for the 400,000 lines, he transferred to [Name01 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. That is, [Name01 064] appropriated $1,739,690.32, thereby becoming the public official who obtained the greatest economic advantages from the criminal plot associated with the 400,000 lines issue, a conclusion that is not modified by the fact that, subsequently, when negotiating an abbreviated procedure and later a prosecutorial discretion criterion with the Public Prosecutor's Office, he was willing to hand over significant sums of money and some assets to the State (thus, cf. folios 3 and 4 of evidence No. 308 and folio 3, evidence No. 776). In addition to the above, [Name01 064], before the acts investigated here, had received $63,083.59 given to him by [Name 046]; $110,207.00 paid by the companies [Name 083]-[Name 270]; $29,833.95 originating from the company [Name 085]; and, finally, an approximate $56,000 related to the La Joya project; the foregoing without mentioning the trip to Brazil that, according to what [Name01 033] reported, was paid for by [Name01 091]. In summary, by the time the prosecutorial discretion criterion was negotiated and its application sought, there were elements to reasonably think that [Name01 064] had committed several criminal acts, some related to the 400,000 lines issue and many others unrelated to it, all -apparently- of a similar nature: receipt of gifts in his capacity as a public official. Despite this, a decision was made to guarantee his impunity so that, in exchange, he would testify against [Name01 033], [Name01 041], [Name01 046], and [Name01 078] (the latter was not subjected to this criminal proceeding). Regarding [Name01 041], the collaborator was willing to declare that the latter made him a promise of a gift related to the contract for the 400,000 lines and that, later, he transferred the promised funds to him through [Name02 058]. While the collaboration of [Name 064], at the time of agreeing on the prosecutorial discretion criterion and regarding [Name01 041], allowed a single act to be demonstrated, namely, that the latter made him an offer of economic retribution prior to the contract for the 400,000 lines, the impunity guaranteed to the former was for conducts extremely reprehensible due to their quantity (we speak of repeated acceptance of gifts, which, at a minimum, shows that for [Name01 064] this was a habit); due to the sums involved ([Name01 064] was the public official who received the most money on the occasion of the contract for the 400,000 lines, even subtracting the part he gave to [Name01 033], and he also received large profits from other natural and legal persons); and finally, due to his status as a board member of ICE, a position he used to receive all the described economic retributions. We know that the legislator punishes the corruptor, at least in certain cases, with the same penalty as the corrupt public official, however, in terms of reprehensibility, or in other words, the guilt of those involved (and which in the case of [Name01 064] is established hypothetically, since no accusation has been formulated against him nor has any trial been held), it is impossible to ignore how he, despite having the obligation to perform his position with probity, abused his position of power as a member of ICE's board of directors, to obtain economic benefits at the expense of various suppliers of the aforementioned autonomous institution. Against this, we have [Name01 041], a private individual who, if we stick to what was stated by [Name02 064], offered him a gift in exchange for helping [Name01 091] in three specific areas (migration to GSM, use of public tenders, and a favorable vote in the awarding of the 400,000 lines), which in turn would allow him ([Name01 041]) to obtain a profit. Although both paying and receiving are reprehensible conducts, [Name01 064] does not merit lesser reprehensibility than [Name01 041], and to that extent, it is not legitimate to grant procedural advantages to the former for the sake of achieving the conviction of the latter, because as indicated, [Name01 064] was a public official who was not only involved in the acts related to the 400,000 lines, but in many others, which shows that the receipt of gifts was a custom for him, [Name01 041] being just one of the subjects who, apparently, offered him one of those economic retributions. This Chamber does not ignore that the testimony of [Name01 064] was essential to demonstrate that [Name01 041] made offers of gifts to other public officials, which undoubtedly increases the reprehensibility, however, it must be reiterated, this is a result not expected or foreseen when the prosecutorial discretion criterion was negotiated, to the point that [Name01 064] himself stated he did not know if other officials were in his same situation (cf. e.g., statement of [Name02 064], folio 14,957 recto, last lines, volume XXXI). That is, at the moment the agreement was made, it was not intended that [Name01 064] would make any contribution to demonstrate the guilt of other public officials beyond [Name02 033], and proof of this is that the legal institute was requested only to the detriment of [Name01 078], [Name01 046], [Name01 041], and [Name01 033]. Therefore, this court would be remiss if it used that consequence, to a certain point unforeseen, to try to support -retroactively, moreover- a resolution that lacks any basis, not only because the judicial body effectively made no analysis, but also because, had it done so considering all the information that we know was omitted, it would have concluded that [Name01 064] did not correspond to a lesser reprehensibility. The situation is similar regarding the defendant [Name01 033]. With respect to the prosecutorial discretion criterion, he was charged with having instigated [Name01 064] to accept the promise of a gift made to him by [Name01 041] and [Name01 078] and, later, having received the money that the cooperating defendant transferred to him, for the purpose of fulfilling what was promised. As was deemed proven (cf. facts numbers 113 and 114, folio 15,450 recto), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) that [Name 064] received, he gave [Name 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. Against this isolated conduct of [Name01 033], there are the repeated conducts of [Name01 064] that were pointed out above, namely, the acceptance of several economic retributions paid by companies and private individuals with whom he had contact due to his position at ICE (namely, $1,739,690.32 coming from [Name01 091] on the occasion of the contract for the 400,000 lines; $63,083.59 that were given to him by [Name 046]; $110,207.00 paid by the companies [Name 083]-[Name01 270]; $29,833.95 coming from [Name01 085]; and finally, an approximate $56,000, related to the La Joya hydroelectric project, as well as the trip to Brazil that was also mentioned before). This being the case, the difference between the position held by [Name01 033] compared to that held by [Name01 064] is the only argument invoked in the judgment on the merits to affirm that the conduct charged to the former is more reprehensible than all the acts carried out by the latter, which is untenable, because although it is true that the personal conditions of the active subject that are determining for the commission of the crime must be considered, this does not mean ignoring the seriousness of the conduct actually carried out and, in the specific case of the 400,000 lines, the action of [Name01 033] was not so decisive, to the point that [Name01 064] himself had no problem disregarding the distribution of irregular profits arranged by the former (where -according to what he affirmed- [Name01 033] would obtain 60% and he 40%). On the other hand, the fact that [Name01 033] was his hierarchical superior in the presidential house, and that -additionally- it was the Government Council of the [Name02 033] administration that appointed him as a member of ICE's Board of Directors, for the purpose of determining the degree of reprehensibility of both conducts are not of great importance, because, despite that hierarchical relationship, as explained, [Name01 064] would not have had any problem refusing to give [Name01 033] the percentage of the profits they had agreed upon, considering it unfair. In fact, during the trial, despite affirming that the difference in the profit distribution percentages was justified "... from the participants' point of view because Mr. [Name01 033] was the [...]", when questioned, he acknowledged having affirmed in previous statements that those percentages were unfair and disproportionate, since he was the one who assumed all the risk, as, "... the money arrived in the accounts I provided and I dealt with [Name02 091] to protect the [...], Name56 I only dealt with high-level people from [Name01 091]. From the money received, I had the responsibility to give Mr. [Name01 033] the money that corresponded to him..." (Folio 14,991 recto of the judgment, volume XXXI). That is, based (according to an ex ante analysis) on the acts that supported the prosecutorial application for approval of the prosecutorial discretion criterion, as well as on the very account given by [Name01 064], he was not a person who, sporadically and by chance, received a promise of a gift and, faced with that, sought the support of the then [...] Name57 to accept it. On the contrary, he was a public official experienced in these matters, who knew how to act, and who sought out [Name01 033] because he understood that the future act expected of him could require someone more influential. So clear is the issue that, despite [Name01 033] being the [...] hierarchical superior of [Name01 064], the latter had no problem abandoning the commitment assumed with him and handing over a smaller sum of money, considering that the agreed distribution percentages were unfair. That is, for the purpose of keeping the greater part of the illicit profit, [Name01 064] (according to his testimony) set aside [Name01 033]'s position, which allows concluding that the hierarchical relationship, contrary to what was outlined by the requesting body when applying for the criterion, is not an element that, at least in light of the specific case, can be considered determinative for the purpose of estimating that the conduct of [Name02 033] was more reprehensible. This appeals court does not ignore that (as derived from the testimony of [Name01 064]) the then [...] of the country was required to censure his subordinate and report what happened. However, the fact that instead of this he backed him in a way that only he could, does not permit affirming that the acts of [Name01 064] were less reprehensible, to the point of justifying the cost of the impunity guaranteed to the collaborator for the sole purpose of obtaining the conviction of a person who at that time held a higher rank.

This appears to have been the sole purpose that moved the requesting body because, as has been pointed out, despite having negotiated the application of the prosecutorial discretion criterion (criterio de oportunidad) to obtain information against [Name01 046], [Name01 041], and [Name02 078], in the petition filed by the Public Prosecutor's Office (Ministerio Público), no attempt was even made to explain why it is understood that a greater reproach is attributable to them than to [Name 064], which was indeed attempted to be justified in the case of [Name01 033], albeit with little success, since the sole argument presented is the one already outlined, namely, the consideration that [Name01 033] was [...] and the hierarchical superior of [Name01 064], without addressing several issues that have already been mentioned, specifically, that [Name01 064] was also a public official, that he had made a habit of receiving gifts (dádivas); that faced with the multiple criminal acts that could be attributed to him, [Name01 033] was only charged with having been a participant in a crime in which [Name01 064] appeared as the perpetrator and, finally, that the economic retribution obtained by the collaborator on the occasion of the 400,000 lines was the most significant of all, given that those received for other acts were also substantial. For all these reasons, it cannot be considered that the instigation conduct attributed to [Name01 033], whose criminal prosecution was facilitated by the statement of [Name01 064], was more reprehensible than those attributed to the latter. Similarly, the assertion contained in the contested judgment, to the effect that [Name01 064] merits a lesser reproach because he has been willing to collaborate with the administration of justice, is extremely questionable, since, firstly, if we start from the thesis assumed by the trial court (tribunal de mérito), in the sense that the version he gave after negotiating with the Public Prosecutor's Office is the true one, we would have to conclude that for months, by denying the promise of a gift (promesa de dádiva), he sought to confuse the respective authorities, with the sole purpose of evading his responsibility. Likewise, Name02 just as a lack of repentance cannot be derived from the exercise of the right of defense, which is what has characterized the other accused, including [Name01 033], it cannot be derived from that collaboration that [Name01 064] is repentant, since it is very clear that his help has not been gratuitous. Finally, regarding [Name01 046], the situation is also quite clear. Although both he and [Name01 064] were persons with a long career in the public sector, at the time of the acts of interest here, it was the latter who was performing a public function. Name02 things being so, several crimes that were, at least in principle, attributable to [Name01 064] (including the one related to the contract for the 400,000 GSM lines, which meant an enormous gain for the collaborator) were left uninvestigated and unprosecuted, in exchange for facilitating the criminal prosecution of a person who, before the acts investigated here, had allegedly promised him (according to [Name01 064]'s statement) an economic retribution in exchange for helping him collect a sum of money owed by [Name01 091], a proposal that the public official accepted and translated into collection actions, to later receive, also without any objection, the sums that [Name01 046] transferred to him as a token of gratitude for that help. That is, the requesting body was willing to guarantee impunity to a public official who repeatedly received gifts, some of a surprising amount, in exchange for facilitating the conviction of a private individual who appeared as a corrupter in only one of those acts, one prior to and unrelated to the contracting of the 400,000 lines. In summary, the conduct of the accused [Name01 064], due to its repetition, the amount of the economic retributions obtained, and, of course, the use of his position to obtain those illicit gains, is no less reprehensible than the conduct of [Name01 046] that was intended to be proved with the former's statement and which is limited to a single event, where both [Name01 046] and [Name01 064] himself would have participated and obtained an illicit financial benefit. Having said the above, it is important to note that the trial court, in the judgment, despite insisting that it lacks jurisdiction to rule on the "substantial" requirements set forth in Art. 22, subsection b) of the C.P.P., dedicated a section to presenting some reasons why it understands that the requirement of lesser reproach was indeed met, which can be summarized as follows: i) what matters is that the reproach made to the collaborator is less than that of those who were subjected to trial, an issue that has nothing to do with the concepts of authorship and participation; ii) reproach is measured from the perspective of culpability. Culpability in the criminal wrong must be taken into account, in accordance with Article 71 of the Penal Code. The judgment of reproach Name05 the determination of the typical, unlawful, and culpable conduct performed by the collaborator and that performed by the accused, the capacity for understanding and acting in accordance with the law of both, the reproach to the collaborator and to the accused. Personal conditions [Art. 71, subsection d) of the Penal Code] must be considered to the extent that they influenced the commission of the crime. Therefore, the criminal judge made no error by considering those conditions to establish that a lesser reproach was applicable to [Name01 064]. It cannot be affirmed that such an assessment is characteristic of a criminal law of the author (as considered by the dissenting vote of the trial court), since the Constitutional Chamber (Sala Constitucional) itself has endorsed the consideration of those personal circumstances when setting the sentence, given that, moreover, what is judged is a specific conduct and not what one is, and, in the case of crimes related to public function, the scope of the position held ceases to be an irrelevant condition as it relates to the statutory prohibition; iii) the comparison is regarding "the reproaches," not the conducts or crimes, nor the sentences, nor the effects of the benefit agreed upon for the collaborator. It is not appropriate to examine the crime or crimes, when there were several, committed by the collaborator or by the accused. The norm speaks of "conduct" and "punishable act" (hecho punible), with which the analysis, more than on crimes and sentences, must be qualitative. It is not enough to know the sentencing parameters and establish the lowest and the highest, but the examination must focus on the premises of Article 71 of the Penal Code regarding, on one hand, the indicated conduct and, on the other, the punishable act. Therefore, it is also not enough to compare, in the abstract, other illicit conducts and economic benefits that [Name01 064] supposedly received; iv) the trial court must control the concurrence of formal requirements and not substantive ones, meaning, it cannot control whether the collaborator's conduct is less reprehensible. Here, what was said before is reiterated, namely, that it is the prosecution that ex ante must make that assessment and that the control of said mechanism corresponds to the judge of the preparatory or intermediate stage, given that the trial court cannot analyze that issue before issuing the judgment, as this would be anticipating its criterion. Now, in the specific case, it argues, the court resolved that the criterion conformed to the formal requirements, with which it cannot be affirmed that there was no ruling. Furthermore, the body competent to control the admissibility of the legal mechanism did so, thus it cannot be argued that there was a denial of justice when each judicial body fulfilled its duties, without exceeding its own or arrogating those that do not correspond to it, even if it is not to the liking of some of the parties to the process; v) the conduct of [Name01 064] is less reprehensible than that of [Name 041], [Name01 033], and [Name01 046], whose prosecution it facilitates. From here and following the statements of the aforementioned Article 71, the trial court sets forth the reasons why it qualifies the conduct of [Name01 064] as "less reprehensible," using a comparative exercise with each of the accused against whom the prosecutorial discretion criterion was requested. Regarding [Name 041], the court points out, regarding the objective and subjective aspects of the punishable act, that this entire situation would not have occurred without the existence of a remunerative proposition made by [Name01 041]. There can be a corrupting person without there being a corrupt person, but not the reverse, hence from an objective perspective, the action of [Name01 041] is more reprehensible than that of [Name01 064]. Regarding the importance of the harm or danger, although it is recognized that the conduct of both affects the legal right and the social order, the trigger for the events is the plan devised by [Name02 041], aimed at signing consultancy contracts as a front (mampara) for the financing of the operation, with which, in the production of social harm and the injury to the legal right, the greater contribution was from [Name01 041], who acted following a previously established scheme. He knew how to set the plan in motion, could define the appropriate amount to make the promise and cause its acceptance, actions that reveal he acted in a calculated manner, not Name02 [Name01 064], who was unaware of the entire illicit machination previously outlined, to the point of ignoring that there were other people involved, or the magnitude of the corrupting proposals of [Name01 041], with which the greater reproach also falls upon the latter. Regarding the circumstances of mode, time, and place, [Name01 041] communicated with the other corrupters to generate a financing strategy and for this purpose set out to deceive the corporation [Name01 060]. He coordinated approaches with public officials, held meetings with those officials -among them [Name01 064]- and provided information to the other corrupting persons so they could make the payments. That is, [Name01 041] had been working on the structuring and assembly of a plan that allowed him, through the payment of gifts to public officials, for ICE to acquire the products offered by [Name01 091]. In contrast, the action of [Name01 064] not only depends on the described plan but also occurred from the meetings in which both participated, with the payments he received being singular links within a chain of events that involves the criminal behavior of the former. Regarding the quality of the determining motives, the harm to the legal right of probity occurred both through the acts of [Name01 064] and those of [Name01 041]; however, while the former sought to procure an individual financial benefit, in the case of [Name01 041], the sum was greater, as it was he who, together with the other corrupters, managed the funds for his illicit purposes. Regarding the other personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime, [Name01 041] was the general manager of the company [Name01 091], hence he knew how the corporation was organized, and he had also worked at ICE and knew its dynamics. He gained the corporation's trust to the point that he had to propose the consultants to be hired and participated in the process of paying disbursements to them. He also knew ICE and its relationship with [Name01 091], which provided him with the mechanisms to identify key figures, how to contact them, how to influence their decisions so they would be favorable to the company, and how to obtain the money to overcome their resistance. For his part, [Name01 064] was only one of the pieces in that criminal strategy, one of the officials he had to convince with his proposal. Finally, regarding the agent's conduct subsequent to the crime, while [Name01 041] has done nothing to repair the damage, [Name01 064] has acknowledged his improper conduct and has returned a large part of the money received, making the latter's conduct less reprehensible. In the case of [Name02 046], the ruling states that the reproach applicable to [Name01 064] is lesser because: Regarding the subjective and objective aspects of the punishable act, [Name01 046] had a long public career, longer than that of [Name01 064]. Regarding the importance of the harm or danger, although [Name01 064] was a public official and [Name01 046] was not, the most significant harm to the legal right of probity is caused by the latter, as he is the promoter of the criminal action. Regarding the circumstances of mode, time, and place, [Name01 046] appeared before [Name01 064] and asked him to take collection actions against [Name01 091] so that the money owed to the former would be paid. [Name01 064] accepted and acted accordingly, which is why [Name01 046] later paid him various sums of money. The majority vote says that it was [Name01 046] who went to [Name02 064], who sought him out at ICE knowing his status and knowing that [Name01 091] was a supplier to ICE. Based on his command of these facts, he made the remunerative promise to [Name01 064], which supports his greater reprehensibility. Regarding the determining motives, both were driven by a monetary interest; however, [Name01 046] is the manager of the mechanism (the promise and delivery of a gift) that motivated [Name01 064]. Regarding the other personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime, it is observed that [Name01 046] used the knowledge gained from his work in the public sector (he held a position at ICE) and his contact with people from the national political sphere, among them [Name01 033], to manage to communicate with [Name01 064]. Finally, regarding the agent's conduct subsequent to the crime, [Name01 046] has taken no action to repair the damage, while [Name01 064] has, handing over money and personal property. In the case of [Name01 033], the court indicates, regarding the objective and subjective aspects of the punishable act, that this accused held one of the most relevant positions in public function, a position that is significant for the commission of the attributed crime, as not just anyone can be the active subject of the crime of bribery. Furthermore, being [...] Name58 is a personal condition that not only relates to the typicality of the conduct but also concerns the legal right -probity- since it does not generate the same social harm for a public official of the lowest rank to be convicted of this crime as it does for one who occupies the top of the public administration. Although [Name01 064] was also a public official, [Name01 033] had greater rank and hierarchy and, being the [...], Name59 a probative conduct was demandable; it was from him that honest behavior, oriented exclusively to the fulfillment of the public interest, was expected, which is why the reproach applicable to him is greater. Regarding the importance of the injury or danger, although both [Name01 033] and [Name01 064] contributed to causing the injury, the most significant contribution, says the majority vote, was made by [Name02 033], since when typifying conducts such as bribery, the legislator sought to safeguard probity, rectitude, honesty, and impartiality in the performance of the position, so that those who hold them for remuneration do so interested in satisfying the public interest and not their own interests, even less to enrich themselves improperly by that means. The [...], Name60 having a high degree of popular representation, enjoys broad authority and is placed in a central plane, both for public control and for the integration of the nation and the definition of its course. He is not only the one who appoints the cabinet and removes it, he is the one who leads it and directs relevant tasks both nationally and internationally. And if the head weakens, the body tends to collapse. It is concluded that the weaknesses in [Name01 033] are what mostly contribute to the damage. Regarding the circumstances of mode, time, and place, the trial court considers that although one might think that [Name01 064] was the one who contacted [Name02 033] to convey [Name01 041]'s proposal, making the first's initiative the driver of the crime's development, it must be considered that [Name01 064] went to [Name01 033] because of the trust that exists between them, because there was mutual political support, Name02 as well as a work connection and a friendship relationship ([Name01 064] was a member of the ICE board of directors and his appointment corresponded to the government council presided over by [Name01 033], also being a presidential advisor). Moreover, before [Name01 064] conveyed the described proposal to [Name01 033], the latter had already urged the former to participate in a prior criminal act, namely, when he asked him to intercede with [Name01 091] so that the payment of monies to [Name01 046] would be honored. He even asked him to attend to this matter during a trip that [Name01 064] would take abroad. Thus, instead of [Name01 033] calling [Name01 064] to account and demanding probative conduct from him, what he did was urge him to accept the proposal, to ask for a larger percentage, and he even proposed the formula for distributing the money. That is, although [Name01 064] is the one who had to comply with the proposal, he went to [Name01 033] to make a decision, as he knew he could not decide on his own. This reveals the decisive role of [Name01 033], as he was the one who determined [Name01 064]. Regarding the quality of the determining motives, the legal right of probity was injured by both defendants and to that extent, the reproach was similar. Revealing is the economic interest shown by [Name02 033], when upon hearing [Name01 064], the first thing he does is ask how much the amount to be received will be and then decides the distribution formula, inflated in his favor, and it is what later, also reflecting the ambition of [Name01 064], leads him to tell him that he does not agree with such distribution. Regarding the personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime, the trial court indicates that when [Name01 033] learns of the corrupting proposal, he is the highest authority of the country and one of the few officials whom the majority of the population has chosen with their vote, so greater diligence was expected from him, Name02 as well as a tireless effort to be correct in the exercise of his function. Despite this, he chose the opposite, promoted the acceptance of the corrupting proposal, and benefited from the gifts delivered. He who declined his duty of probity, points out the lower court (a quo), was not just any public official, but the one of highest hierarchy, even determining [Name01 064] to accept the proposal. In the same way, [Name01 064] did not go to just anyone to inform him of the proposal, but to the [...] Name61 of all Costa Ricans and leader of the administration, moreover an influential figure for [Name01 064], not only because of their friendship but because of their functional link. To that extent, we have on one hand [Name01 064], a director of an autonomous institution and presidential advisor, and on the other [Name01 033], the highest-ranking official with decision-making power over the appointments held by the former and from whom it was demandable to a greater extent to behave according to the law, just as the reproach for not doing so is greater. Regarding the agent's conduct subsequent to the crime, [Name01 033] has taken no action whatsoever to reduce the impact of the harm caused by his action, while [Name01 064] accepted his responsibility, was willing to agree to an abbreviated procedure and serve a prison sentence for which house arrest did not apply as credit. This option did not succeed because those who appeared as plaintiffs (querellantes) in this process opposed it, and the prosecution opted for the prosecutorial discretion criterion. [Name01 064], moreover, appeared at the debate and accepted his behavior, and has also handed over part of the money received and two vehicles. Although the defense has questioned that he has not returned the totality of the money and that the vehicles are old, the truth is that, if one starts from that parameter, one would have to conclude that [Name01 033] has returned nothing. The trial court ends its presentation pointing out that the preceding reasonings explain why, at the time, it considered that it could not rule on the issue of greater or lesser reproach, namely, because it is the responsibility of another court and because impartiality could be compromised by conducting that analysis no matter how "abstract" it might be (folios 15,395 to 15,415 front of volume XXXI). This is the extent of the court's argumentation. For those who subscribe to this resolution, the preceding reasonings are erroneous not only because of what was said supra, when examining the issue of the reproach attributable to each accused in relation to [Name01 064], but because of what will be set forth below. Firstly, it is evident that to determine the intensity of the reproach in the case of [Name01 041], the lower court not only considered his culpability in relation to the specific act that was sought to be proved through the statement of [Name01 064] (namely, that the former made a promise of a gift to the latter at the [Name01 094] restaurant and then transferred a large sum of money to him through [Name01 058]), but also the culpability for all the other acts that it found proven against the former and which were unknown by [Name 064] at the time the prosecutorial discretion criterion was negotiated, e.g., that he was a co-author of a criminal plan that included other public officials, that there were approaches to these and delivery of economic retributions under similar modal and temporal circumstances; or, that [Name01 041] had larger sums of money at his disposal than [Name01 064], insofar as it was he who identified the public officials to be paid and the amounts. As can be observed, we are talking about issues that are extraneous to the acts that, at the time of the negotiation, were intended to be proved with the testimony of [Name01 064], and thus could not be considered when weighing the issue of reproach (at least not for the purpose of legitimizing the prosecutorial discretion criterion), nor can they be taken into account now, since that examination (ex ante) must necessarily be traced back to the date on which the agreement was signed, bearing in mind the acts that were intended to be elucidated with the collaborator's statement, and not those that, after the debate, have been considered accredited with his help. The undersigned do not ignore that the statement of [Name01 064] was an indicium that allowed the trial court to confirm that, in addition to the collaborating accused, there were other public officials involved and that [Name01 041], in common agreement with [Name01 028], used the corporation [Name02 058] to legitimize and then distribute the funds coming from [Name01 060]. It is also not possible to ignore, conducting an a posteriori examination, that the statement of [Name01 064] and, in particular, his affirmation that a promise of a gift was made to him prior to the contract for the 400,000 lines, was the most important indicium used by the trial court to accept it as proven that a similar promise was made to the other accused public officials. However, these consequences derived from the statement of [Name02 064], which were not contemplated when negotiating the prosecutorial discretion criterion, cannot be considered for the purpose of establishing the greater or lesser reproach attributable to [Name01 041] versus the collaborating accused, since his statement was negotiated solely to be used against [Name01 041], [Name01 033], and [Name01 046], and not to facilitate the criminal prosecution of other accused, e.g., [Name01 028], or the public officials who also received economic retributions and whose link to the facts was unknown even to [Name02 064] himself. That is, in the case of [Name01 041], at the time of negotiating the prosecutorial discretion criterion, what could be proven with the collaborator's statement was that the former had made him a promise of a gift and that, after the contract award, he delivered a sum exceeding two and a half million dollars to him through [Name01 058], which he shared with [Name01 033]. Thus, to facilitate the criminal prosecution of a specific conduct, the requesting body chose to guarantee the impunity of someone who, in addition to accepting that promise and receiving the mentioned sum, received other non-negligible economic retributions, all in his capacity as a public official, breaching the duties that had been entrusted to him. It is important to insist that in examining the reproach, it is not appropriate to consider the transcendence that the statement of [Name01 064] had in the demonstration of other facts, as this was not foreseeable at the time the criterion was negotiated, and the proof of this Name02 is that the application of the legal mechanism was requested only to the detriment of [Name01 033], [Name01 041], [Name01 078], and [Name02 046]. Finally, it is important to note that the thesis of the trial court, in the sense that the conduct of the one who pays or corrupts is more reprehensible than that of the public official who receives the gift or allows himself to be corrupted, is entirely unfounded, for several reasons. The first, because, according to the crime and penalty for the corrupter, the sanction corresponding to him is the same as that provided by law for the public official. The second, because unlike what happens with the corrupter, it is the corrupt official who disregards his duties and compromises the citizenry's trust in its institutions, by using his position to enrich himself. Name02 things being so, to argue, without more, that the conduct of [Name01 041] is more reprehensible than that of [Name01 064] because the former made the promise and the latter merely accepted it, is—in the least of cases—an assertion that finds no support whatsoever. Regarding [Name01 033], the same situation applies. From the arguments cited by the court, it is extracted with crystal clarity that the greater reproach against him rests on the hierarchy of the public functions he performed. Any analysis of the seriousness of the conduct actually carried out by the then [...], Name17 Name02 to compare it with the conducts that were left unprosecuted, was set aside. It was not considered that [Name01 064], at the time of the negotiation, appears as a subject involved in multiple criminal acts of a similar nature, which demonstrates he was prone to receiving gifts; that it was he and not [Name01 033] who, according to the same majority vote, assumed the authorship of the criminal act and that it was also he who, of the two, obtained greater economic benefit, since despite [Name01 033] requesting 60% of the criminal gains, [Name01 064] had no qualms about changing that distribution considering it "unfair." There are no reasons to doubt that [Name02 033] had a hierarchical relationship with [Name01 064] at the time of the acts. It is not unknown that he had appointed him minister, later presidential advisor, and later, through the Government Council that he presided over, appointed him a director member of ICE. This, which certainly from an ethical perspective makes the conduct of [Name01 033] more censurable (since if things happened as [Name01 064] narrated, he should have reported it immediately instead of supporting his intentions), from a legal point of view does not allow establishing that the reproach applicable to the latter is of a lesser degree if everything else is considered. Even so, it is important to note that in the case of [Name01 064], his condition as a public official also played a central role, not only for matters related to the contract for the 400,000 lines, but for all the other receipts of gifts in which he figured as a suspect. Finally, see how the trial court, while considering the conducts of [Name01 041] and [Name01 046] more reprehensible with the argument that they were the promoters of the crime's execution, the ones who took the initiative to seek out [Name01 064], in the case of [Name01 033], disregards this reasoning, by concluding that although it was [Name01 064] who decided to convey the proposal to [Name01 033], this does not make his conduct more reprehensible since he acted Name02 out of the trust and support given to him by the then president. Name02 things being so, although it is true that [Name01 033] was, at the time of the acts, the highest-ranking public official, this circumstance alone does not justify the decision to guarantee impunity to [Name01 064], since the acts for which criminal prosecution is waived (and which include that with respect to which it is affirmed that [Name01 033] is the instigator and [Name01 064] the instigated author), contrary to what the lower court points out, merit a greater reproach than the conduct sought to be prosecuted.

Not accepting it in this way also leads to the understanding that the reproach, instead of depending on the gravity of the act and the personality of the participant, responds exclusively to the personal characteristics of the active subject and, in the case of public officials, to the position held, such that regardless of the conduct actually carried out, the higher the hierarchy Nombre11, the greater the reproach. In summary, for all the foregoing, it is concluded that the opportunity criterion (criterio de oportunidad) granted to [Nombre01 064] is illegal. As a consequence of the foregoing, the statement he made at trial as a collaborating accused (imputado colaborador) is illicit evidence and Nombre02 is declared so. Furthermore, this court will proceed to resolve some questions raised by [Nombre01 033] regarding the credibility that can be given to the testimony of [Nombre01 064] and on the occasion of which, this appellate court concludes that it is implausible.

• 4)Regarding the assessment of the testimony given by [Nombre01 064] at trial. A matter beyond all discussion is the obligation of the trial court to analyze the statement given by the collaborator [Nombre01 064] in adherence to the rules of sound criticism (sana crítica). The court weighed it, concluding—erroneously, in the opinion of this chamber—that it was credible. For these purposes, it took into account several circumstances, some general and others particular, described in relation to each accused. From folio 16,073 front onwards of volume XXXIII, the appealed judgment explains: i) The statement of [Nombre01 064], contrary to what was said by the defense attorneys of the accused, was plausible and disinterested, since it was conceived, not under the protection of an opportunity criterion, but months before it was agreed upon, under more onerous conditions for the collaborator, namely, on the occasion of an abbreviated procedure (procedimiento abreviado). In this, he accepted his responsibility and was willing to have a sentence of 4 years' imprisonment imposed, a procedure that did not succeed due to the opposition of those who requested to intervene as complainants (querellantes), among them persons close to Mr. [Nombre01 033]; ii) in anticipation of submitting to an abbreviated procedure, [Nombre01 064] delivered the sum of $1,401,000 dollars and two vehicles, as financial compensation; iii) to think, as Attorney Gairaud does, that [Nombre01 064] accepted such a custodial sentence because he knew that, by reason of the house arrest (arresto domiciliario) suffered, he would be granted the benefit of article 55 of the Penal Code, is to disregard that since May 9, 2005, the process having begun in late 2004, [Nombre01 064] was willing to accept the facts and to be sanctioned; that by May 2005, two years had not elapsed and therefore, half of the sentence could not be considered served, and furthermore, the granting of that benefit is the purview of the National Institute of Criminology (Instituto Nacional de Criminología) and not the Public Prosecutor's Office (Ministerio Público); iv) from the very first moment, [Nombre01 064] was willing to have his bank accounts, cards, and telephone calls investigated and offered whatever was within his reach for the investigation; likewise his wife and his mother. His first statement took place on September 30, 2004, and by October 5, he was authorizing the opening of his accounts and the obtaining of bank information; v) on October 12, 2004, he showed interest in compensating the damage caused when he proceeded to deliver to the criminal court a certificate for the sum of $1,401,241.36; vi) as already indicated, on May 9, 2005, 8 months after the case began, he agreed to the application of an abbreviated procedure under the stated terms, namely, serving a sentence of four years' imprisonment without any benefit whatsoever, obligating himself to testify at trial and paying the mentioned sums to the Office of the Attorney General (Procuraduría General de la República) and to ICE, Nombre02 as well as delivering two cars. The court points out that at that time, [Nombre01 064] could not become eligible for the benefit contemplated in article 55 of the Penal Code; that such an option was not negotiated with the Public Prosecutor's Office nor was it within the competencies of that body. It adds that if the procedure in question did not materialize, it was due to the refusal of the complainants Fernando Apuy Sirias and Freddy Coto Varela, where, at least the former, had a connection with [Nombre01 033]. This is what, in the end, led the prosecution to agree upon an opportunity criterion. It is not true, therefore, that out of the blue [Nombre01 064] was benefited with the opportunity criterion so that, in exchange for his impunity, he would "sink" the other accused; rather, it was the actions carried out by those close to [Nombre01 033] that prevented the application of the abbreviated procedure, given that already under this procedure, [Nombre01 064] had committed to testify at trial; vii) with other accused in this case, abbreviated procedures were negotiated, with sentences of three years' imprisonment and the benefit of conditional execution (ejecución condicional) (e.g., [Nombre01 068], [Nombre01 105]). Thus, it cannot be said that there was preferential treatment for [Nombre01 064] when a sentence of four years' imprisonment was agreed upon with him; viii) according to the minority vote, [Nombre01 064] was allowed to keep around one million dollars in gifts (dádivas) in exchange for testifying, but there is no evidence whatsoever of this. What is indeed on record is that with or without the abbreviated procedure, with or without the opportunity criterion, [Nombre01 064] delivered, from October 2004, a sum of $1,401,241.36 dollars. For the majority vote, if [Nombre01 064] had wanted to keep some money for himself in exchange for his impunity, he would not have delivered that sum, much less would he have negotiated such a possibility. Moreover, according to the dynamic insinuated by the defense, if the Public Prosecutor's Office wanted to compensate [Nombre01 064] for his statement, one would have to think they similarly wanted to compensate him when, for that same sum, he agreed to apply the abbreviated procedure and impose 4 years' imprisonment, or that they wanted to compensate [Nombre01 105] when he only returned $100,000 having received more than $1,000,000, but that they did not want to do so with [Nombre02 068] when they negotiated an abbreviated procedure and the return of more than $1,000,000 with him. What this reflects is that the negotiation with the accused was not contingent on the issue of the exact return of the amount from which they benefited; ix) although [Nombre01 064] did not answer some questions from the defense attorneys of [Nombre01 033], [Nombre01 041], and [Nombre01 018], this was because he was questioned regarding facts in which his account would self-incriminate him, hence he was entitled to the right of abstention, or because they were facts unrelated to the accused. In any case, it was the court that admonished him (the collaborator) in that regard, whereby this situation in no way undermines his credibility. From folio 16,085 front of the same volume, the lower court (a quo) undertook the task of setting forth the reasons why it considers that the account of [Nombre01 064] can be verified with other evidentiary elements of a direct or indirect nature. It clarifies, however, that this verification is in relation to the general aspects of his version and not with respect to each of the facts related by him, as this would render the opportunity criterion meaningless: a) [Nombre01 033] was [...] from May 8, 1998, to May 8, 2002. b) [Nombre01 064] had an extensive career in public service. He was Minister Counselor in charge of business at the Embassy of Chile from 1978 to 1983; deputy in the periods from 1986 to 1990 and from 1990 to 1994; minister in the administration of [Nombre01 033] from May 1998 to July 1999. Subsequently, in this same administration, from August 1, 1999, to May 9, 2002, he was appointed presidential advisor and general director of the presidential house. He was also appointed by the Government Council as director of ICE, starting August 3, 1999, both positions (as Minister Counselor or General Director of the Presidency of the Republic and as a member of the board of directors of ICE), held simultaneously (of the foregoing, there is abundant evidence, e.g., items numbered 15, 303, 304, 305, 638.1 and 638.2, all cited at folio 16,091 front and following). From all this, it is inferred that [Nombre01 064] was a person close to [Nombre01 033], who depended hierarchically on him. It was also ruled out that [Nombre01 064] harbored a feeling of animosity against [Nombre01 033]; c) despite ICE being an autonomous institution, it maintained a link with the central government. This is not solely a result of institutional practice, but of the legal system that Nombre02 provides for it, by leaving the appointment of the directors of autonomous institutions in the hands of the Government Council and attributing to the [...] Nombre62 the power of direction and coordination of tasks; d) there is abundant evidence that demonstrates that, even before the facts investigated here, the policy of providing attentions to public officials of ICE was frequent. [Nombre01 041] spontaneously accepted having paid gifts to public officials. [Nombre02 105] and [Nombre01 078] submitted to a conformity procedure, with the consequent acceptance of charges. There are also three ICE officials who have admitted their responsibility ([Nombre01 068] in an abbreviated procedure, [Nombre01 001] spontaneously admitted before a media outlet having received money from [Nombre01 091] and [Nombre01 064] admitted it before the court), whereby the collaborator's statement is corroborated, to the effect that [Nombre01 041] and [Nombre01 078] made him a promise of a gift and that he accepted it after submitting it to the knowledge of [Nombre01 033]; e) the lunches and other activities between the employees of [Nombre01 091] and public officials were frequent. There were encounters between the corruptors and [Nombre01 064], [Nombre01 001], [Nombre01 018], [Nombre01 063], and [Nombre01 022]. There was also another series of attentions for public officials, e.g., the payment of a travel ticket to Paris for “[Nombre01 064]” and his wife (evidence No. 55, folio 91), or hotel reservations for [Nombre01 022]. f) Some public officials frequented the facilities of [Nombre01 091], for example, [Nombre02 022] and [Nombre01 001]. Likewise, [Nombre 041] sent some public officials ([Nombre02 022], [Nombre01 001] and [Nombre01 018]) envelopes containing the legend "confidential and personal" to their homes and offices. He also sent them to the corruptor [Nombre02 028]. g) [Nombre01 046] had a relationship with [Nombre01 033]. According to [Nombre 064], he carried out collection efforts from mid-2000 before [Nombre 041] at the request of [Nombre01 046] and through the intercession of [Nombre02 033]. [Nombre 046] wrote an opinion article (evidence No. 592.7), where he states that he, at the request of [Nombre01 078], made a transaction to [Nombre01 110] (a company linked to [Nombre01 033]) and that he never charged any commission for favors done for two [...], one who appointed him ambassador and another bank director (the latter being [Nombre01 033]). With this, says the court, the relationship between [Nombre01 046] and [Nombre01 033] is corroborated and although the former exonerates the latter from responsibility in that article, the true explanation behind those payments is already known. h) Two of the directors appointed in the [Nombre01 033] administration are linked to these acts of corruption ([Nombre01 064] and [Nombre01 068]). A third, [Nombre 022], although appointed in the Figures Olsen administration, had ties to [Nombre01 033]. i) Before making the proposal to [Nombre01 064], [Nombre 041] had already initiated a similar approach with respect to [Nombre01 001], this by meeting with him on Friday, December 1, 2000, with the attendance also of [Nombre01 078], [Nombre01 111], and [Nombre01 112]. Evidence No. 81 demonstrates that that lunch existed, “… which allows one to appreciate how the corruptors were resorting to a similar strategy for the remuneration proposals, no longer just regarding [Nombre01 064] …” (f. 16,129 front); j) At the time the meeting took place at the [Nombre 094] restaurant between [Nombre01 064], [Nombre02 041], and [Nombre01 078] and then, the following day, between [Nombre 064] and [Nombre01 033] at the latter's house, all those involved were in the country. The call from [Nombre01 078] to [Nombre 064] occurred, says the court, on December 1, 2000, a date on which he also met with [Nombre 041] and [Nombre02 001]. The encounter at [Nombre01 094] was on Saturday, December 2, 2000, and the encounter between [Nombre01 033] and [Nombre01 064] took place on Sunday, December 3, 2000. According to the court, if [Nombre01 064] were lying, coincidence could not have been achieved between the data obtained from the immigration movements of those involved ([Nombre01 064], [Nombre01 078], [Nombre01 041] and [Nombre01 033]), the expense reports of [Nombre01 041] (which indicate that on December 1, 2000, there was a meeting between [Nombre01 078], [Nombre02 041], [Nombre01 111], [Nombre01 112] and [Nombre01 001]) and the flight itineraries. k) The existence of these meetings is also demonstrated by considering that [Nombre01 064] voted in favor of the award of the 400,000 lines and that months after that vote, he received the gift he shared with [Nombre01 033]. The distribution of the monies reflects a strategy aimed at hiding their origin. Furthermore, [Nombre01 064] received a sum similar to other accused but doubled, which reveals that the corruptors had been informed that they were paying two officials and not one. In addition, there is coincidence in the modal and temporal circumstances for the delivery and receipt of the gifts paid to the three directors of ICE, being [Nombre01 022], [Nombre01 068] and [Nombre02 064], the same as to [Nombre02 001] and [Nombre01 018]; l) there is evidence that although the quantity of 400,000 cellular lines was formally mentioned until December 5, 2000, that figure was already known beforehand by the corruptors, just as [Nombre01 064] stated. There is a note from November 10, 2000, where [Nombre01 098] points out to [Nombre02 041] that although the announcement made by [Nombre02 095] about the future bidding of the 600,000 GSM cellular lines is favorable, they should maintain pressure so as not to allow Lucent and Ericsson to continue being favored, as it seemed that ICE planned a purchase of 200,000 to expand the current ones (TDMA). This reveals that the corruptors were informed of what was happening and how, despite the announcement of the migration, they thought [Nombre01 091] should not sit idly by, but should accelerate that process (as also suggests the note of November 22, also sent by [Nombre01 098] to [Nombre01 041] in relation to the appointment of [Nombre02 001], evidence No. 396), aside from noting that if a direct purchase of 200,000 TDMA lines were made, there would remain 400,000 lines in GSM technology. According to the judges, that is the figure that [Nombre01 041] and [Nombre01 078] were handling as of November 22, 2000, and, therefore, it is ruled out that [Nombre01 064] erroneously constructed his statement, anticipating information that would not be known until December 5, 2000. m) [Nombre01 091] sought to be treated with equity and felt the need to defend its rights. At the session of December 5, 2000, in which the comprehensive telecommunications plan project was approved, a proposal was presented to acquire 600,000 lines, specifically, 200,000 from the companies Lucent and Ericsson in TDMA technology and 400,000 that would be awarded to [Nombre01 091], Siemens, Nortel, Ericsson, and Lucent with GSM technology. In a second stage, 200,000 mobile lines would be approved for the third generation (3G) bidding. It is observed how, although the opening to GSM is proposed through the award of 400,000 lines and the inclusion of [Nombre01 091] as a bidder, a "floor right" is also respected for the companies Lucent and Ericsson, which denotes an ambivalent behavior by ICE, by continuing to promote the purchase of TDMA lines. The evidence also demonstrates that [Nombre01 091] had been denied participation in the contracting of cellular lines, a situation that changed as of February 27, 2001, after the remuneration promises were made, this by being considered by the board of directors of ICE as a possible bidder in the acquisition of the 160,000 cellular lines by direct contracting, given that by then the contracting for the 400,000 lines was already underway. Likewise, the evidence confirms that on August 28, 2001, the contract for the 400,000 cellular lines was awarded to [Nombre01 091], a session attended by [Nombre01 064], [Nombre01 068], [Nombre02 022], Nombre02 as well as other public officials of ICE. n) It was ruled out that [Nombre01 064] was paid solely for the award of the 160,000 lines, since this accused was not present at session No. 5271, where the matter was decided. o) It was demonstrated through abundant evidentiary elements—expert, documentary, and testimonial—that [Nombre01 064] received money from [Nombre01 060] and transferred part of it to [Nombre02 033]. So far, the reasons of the trial court for granting credibility, according to its criterion, to the statement provided by [Nombre01 064] at trial. Having analyzed the above indications (indicios), the undersigned appellate judges consider that the lower court's conclusion, to the effect that [Nombre01 064]'s statement is credible regarding the promise of a gift made to him in relation to the contract for the 400,000 GSM lines, is contrary to the rules of sound criticism. It is undeniable that [Nombre01 064] gave a statement from the beginning of this process; however, it was many months and several investigative statements later that he affirmed having received from [Nombre01 078] and [Nombre01 041] a promise of a gift related to the contract for the 400,000 GSM telephone lines. Now, it is not that [Nombre01 064] had initially remained silent about the cause of the economic retributions received, only to later decide to pronounce on the matter, but rather that he had expressly and repeatedly indicated to the Public Prosecutor's Office that the monies received were offered and delivered to him after the award, by way of a "prize." That is, [Nombre01 064] ruled out that a promise of a gift had been made to him prior to the award of the mentioned contract. As is inferred from the review of the audio and video records of the trial, specifically from what is related to the testimony given by [Nombre01 064] before the trial court, Nombre02 as well as from the appealed judgment itself, we have that on several occasions and based on article 343 of the Criminal Procedure Code, the statements that the collaborating accused made before the requesting body were incorporated insofar as they were contradictory to what he was stating at trial, establishing with crystal clarity that since September 30, 2004, and repeatedly (cf., e.g., the amplification of the statement he gave on October 15, 2004, second paragraph of folio 9,003, incorporated by reading at trial as recorded at f. 14,996 front of the judgment, volume XXXI), [Nombre01 064] stated that it was after the award and even when the execution of the contract was taking place, that he was contacted to inform him that there was "a prize" from [Nombre01 091]. As can be concluded without effort, the collaborating accused was categorical in ruling out that a prior promise had been made to him, it being some time later, on May 9, 2005, when he first indicated something completely different, specifically, that [Nombre01 041] and [Nombre01 078], in late 2000 or early 2001, at the [Nombre01 094] restaurant, made him a promise of a gift in exchange for him helping [Nombre01 091] with the migration to GSM technology, with the implementation of biddings instead of direct contracts, and with his favorable vote for the company in the contract for the 400,000 lines (cf. f. 2,992 to 3,010 front, volume VIII). At the request of a party, the court incorporated the second paragraph of folio 2,999, which, in relevant part, states: "So then Mr. [Nombre01 078] arrived, accompanied by Mr. [Nombre01 041], there was an exchange of introductory phrases and Mr. [Nombre01 078] tells me they are worried, that they are increasingly certain that the bidding will be bypassed to the detriment of [Nombre01 091]. He also told me that Mr. [Nombre01 046] had pointed out to them that he had the power to bring down said bidding, even with the help of Nombre63, for these reasons they asked me for help so that the process would not be aborted and that if everything went well, the company would give me a royalty. I asked him what I had to do, then they told me that they simply needed the bidding to take place, I asked them if we didn't need to speak with anyone and they told me no, that all they needed was for the bidding not to be aborted. Later I asked them what the prize consisted of and they told me between one point five percent (1.5%) and two percent (2%) of the bidding, excluding expenses..." (Transcription made at f. 15,001 of the judgment, volume XXXI). That is to say, it was approximately eight months after having given his first statement that [Nombre01 064] stated that there was a promise of a gift prior to the contracting of the 400,000 lines, the same one he shared with [Nombre01 033]. The statement in which [Nombre01 064] changed his version of the facts began to be given on the same day he signed an agreement with the Public Prosecutor's Office for the application of an abbreviated procedure, in which the requesting body conditioned its consent on [Nombre01 064]'s amplified investigative statement complying with certain terms, namely, “… to clearly set forth the existence of negotiations and a promise of delivery of money prior to the approval of the contract for the 400 K between the Costa Rican Institute of Electricity (Instituto Costarricense de Electricidad) and the company [Nombre 091]. Likewise, the accused [Nombre01 064] will disclose the Nombre01 of a hearsay witness (testigo de referencia), who has knowledge because Nombre02 was informed by the accused [Nombre01 064], of the promise of delivery of money prior to the approval of the contract Nombre64 091]. On the other hand, he will give an even broader statement about the delivery of monies to the co-accused [Nombre01 033], clarifying each of the transactions carried out regarding the money corresponding to the gifts or payments from [Nombre01 091]. He will also refer to the knowledge that the co-defendant [Nombre01 033] had of the promise of gifts or payments made by [Nombre01 091], Nombre02 as well as his approval for [Nombre01 064] to receive said monies… The sentence agreed upon will be four years' imprisonment without any type of reduction.” (F. 2, evidence No. 308, prior agreement document for the application of an abbreviated procedure). It is true, as the trial court notes, that the abbreviated procedure was not applied for reasons beyond [Nombre01 064]'s control and that the agreed sentence did not allow for the application of benefits such as a suspended sentence (condena de ejecución condicional). This circumstance, however, does not allow one to conclude that [Nombre01 064]'s first version was false and that the second was true either, especially considering that this latter one was given precisely under the aegis of a negotiation with the Public Prosecutor's Office, which from then on made the abbreviated procedure conditional on [Nombre01 064] including in his account specific information (specifically, about the promise of a gift made to him before the award, the identification of a hearsay witness, and greater details about the conduct of [Nombre01 033], the knowledge he had of the promise, and the consent he gave for [Nombre01 064] to receive the monies). That is to say, upon negotiating with the requesting body, [Nombre01 064]'s account changed drastically on a core aspect, specifically, on the existence of a promise of a gift prior to the award. It is an inconsistency that acquires capital importance when assessing the credibility of the statement, not only because the configuration of the crime—corruption aggravated by improper bribery (cohecho impropio)—depends on the demonstration of the prior promise made by [Nombre01 041] and [Nombre01 078], but because contrary to what the lower court indicated, its existence rests solely on the word of the collaborating accused. According to the appealed judgment, what [Nombre 064] stated is true because all those involved were in the country on Saturday, December 2, 2000. This, by all appearances, is untenable, since that single indication (the presence of [Nombre01 041], [Nombre01 078] and [Nombre01 064] in national territory) could not logically yield the reasonable and natural conclusion that the meeting existed, let alone that the promise was made. It is important to note that although there is evidence that [Nombre01 078] and [Nombre01 041] met on December 1, 2000, with [Nombre02 001] and other persons (cf. voucher on folio 6 bis and invoice on folio 7, expense report on folio 1, evidence No. 81 which this chamber has examined) and that [Nombre01 041] also met with [Nombre02 001] on November 29, 2000 (cf. also evidence No. 81), this is absolutely irrelevant for the matter at hand here, since, as the same court acknowledged, these meetings were frequent, without being able to assert that they were aimed at making illicit proposals to those public servants (f. 16,112 front, volume XXXIII). For that reason, it is a mere supposition on the part of the judges who sign the majority vote to conclude that the meeting that took place one day before the one described by [Nombre02 064] allows one to demonstrate that “… the corruptors were resorting to a similar strategy for the remuneration proposals no longer just regarding [Nombre01 064], but also another co-defendant and ICE official...” (F. 16,129 front, volume XXXIII). The same can be held regarding the meeting between [Nombre01 064] and [Nombre01 033]. The fact that both were in national territory, an indication verified through the documents showing their immigration movements, does not allow one to even establish with a degree of probability that the cited encounter existed. It is important to remember that [Nombre01 064] is not a witness in this process, but a collaborating accused who, as such, is not obligated to tell the truth or to testify under oath. His contribution, moreover, is not gratuitous. It is articulated in the knowledge that, if he satisfies the expectations for which the exercise of the criminal action against him was suspended (art. 23 C.P.P.), he will obtain as a benefit or reward, the extinction of that action. While that circumstance alone would not allow one to deny credibility to his testimony, the truth is that it must be weighed with extreme caution, to the point that it is indispensable to have additional evidentiary elements that ratify his words. In a similar vein, Nombre54 points out: “For some, when an accused informs on others, stating that they committed the act with him or that they intend to engage in more crimes, the authorities are obligated to act with the greatest prudence and caution, without discarding that information, but granting it only the value corresponding to a notitia criminis. If an accused decides to reveal data that another would jealously guard, how many reasons can motivate that conduct? For this reason it has been said, with good 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 revelations of the collaborator are easily accepted as authentic indications of criminal responsibility, without regard for the personality of the informant, nor the scant credibility he deserves, nor the previous contradictory statements he has given. Although at times the collaborating accused does not say everything he knows or does not assume all the responsibility that belongs 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 informed upon. In certain cases, this can lead to a lack of depth in police investigations and, in close relation to this, to a stagnation of investigation techniques.” (Nombre54, op. cit., p. 595). This is a concern that is not exclusive to our environment. In other countries where the figure of the "repentant" (arrepentido) has been incorporated in the context of the fight against organized crime, questions are also raised regarding the procedural assessment that can be made of their statements and the necessity, for the purpose of considering the account plausible, of its verification through other means of evidence: “The mere informing on other individuals by the self-declared guilty accused, who provides his testimony incriminating other participants in the criminal organization seeking better punitive treatment, poses serious evidentiary problems. The informing statement of a co-accused can hardly be identified with that of a procedural witness, insofar as the interrogation of the accused itself is constructed as a means of defense that allows him not to answer the questions posed and, even, to lie about the facts, while the procedural witness is obligated to tell the truth about the facts under threat of being charged with a crime of perjury (falso testimonio).

The introduction into legal systems of the "hybrid figure of the accused-witness" opens the door to the danger of the "degeneration of the evidentiary system" (Nombre15, op. cit., p. 29). In the specific case, what is being assessed is whether the testimony given by an accused regarding the existence of a fact is credible (the promise of economic remuneration prior to the award), when he himself throughout the process had expressly denied that point, forcefully stating that the sums received were offered to him after the award of the contract for the 400,000 cellular telephone lines. This Chamber has no doubts about the unease experienced by the top officials of [Nombre01 091] during the years 1999 and 2000, since due to the use of captive technologies -TDMA- in Costa Rica, [Nombre01 091] was practically excluded from the mobile telephone market. Nor does it have doubts about the strategy that, at least formally, the aforementioned company designed to solve that problem (action route of [Nombre01 124]) and which contemplated approaches to key figures in different areas of national activity; regarding the links between [Nombre01 064] and [Nombre01 033], as well as between the former and other public officials with the company [Nombre 091] and its representatives. It was also demonstrated that [Nombre02 041] through two corporations ([Nombre01 058]. and [Nombre01 114].) transferred funds to a series of officials linked to the telecommunications field after [Nombre02 091] obtained the award of the 400,000 lines, officials among whom was [Nombre 064], who, it was also demonstrated, transferred part of those funds to [Nombre01 033] or to individuals or legal entities close to him. However, what cannot be established with a degree of certainty is that [Nombre01 041] and [Nombre01 078] made a promise of economic remuneration to [Nombre 064], at the [Nombre 094] restaurant, located in Alajuela, before the contract for the 400,000 lines was finalized and, even less so, that this promise was made in exchange for that public official acting in three specific areas: favoring the migration to GSM, promoting the use of public tenders to replace direct contracts, and voting favorably for [Nombre01 091] in the aforementioned contract. Similarly, except for what was stated by [Nombre 064], it cannot be considered proven with certainty that he conveyed the aforementioned promise to [Nombre01 033] the following day, under the terms explained by the requesting body. It cannot be overlooked that regarding the aforementioned fact (the promise of a gift made in December 2000), the only thing the lower court had was the statement of the cooperating accused, a statement that clearly cannot be considered reliable because it has varied over time; because the changes occurred precisely when negotiating with the Public Prosecutor's Office, to the point that the expedited procedure was conditioned on what [Nombre01 064] would declare regarding the promise of a gift; because the changes do not concern tangential matters, but quite the opposite, a core fact that had not gone unnoticed by the cooperating accused himself, since for months he had dismissed any offer prior to the mentioned contract and, finally, because [Nombre01 064] was a public official prone to receiving irregular economic remuneration ("bonuses" according to him), originating from individuals and legal entities with whom he had ties due to his position, whereby it also cannot be ruled out that things happened in other ways not contemplated in the accusation, e.g., under the terms he narrated for months (in which case the crime of accepting a gift for an act already performed would be configured), or in other ways also condemned in our legal system (e.g., that it was he who demanded payment of the economic remuneration, an alternative that also cannot be discarded considering that [Nombre01 064] himself acknowledged in the oral hearing that before the events investigated here and at the insistence of [Nombre01 046] and [Nombre01 033], he "suggested" to [Nombre01 041] and to [Nombre02 078] "the advisability of paying" [Nombre01 046] what they had promised him in the past; cf. f. 14,940 and 14,941 front, volume XXXI). It is important to underline that [Nombre01 064] had criminal responsibility in the investigated events and, to that extent, his contributions as a cooperator are conditioned by his interest in satisfying the expectations of the requesting body. His testimony (a term used in an improper sense, since he did not declare under oath) cannot be considered sufficient evidence to prove the existence of a prior promise of a gift (an element that is decisive for speaking of a crime of aggravated corruption due to improper bribery), especially since, contrary to what the appealed judgment states, there are no other indicators that confirm this assertion. It is important to note that for this Chamber, pursuant to the principle of freedom of evidence established in Article 182 of the Code of Criminal Procedure, there is no impediment to considering a fact of interest for the resolution of the case as proven based solely on the information provided by the cooperating accused when it is self-sufficient; however, this is not the case here, since, as has been explained, there are substantial questions about the narrative provided and about its veracity, which, despite the efforts made by the requesting body, have not been eliminated. There are a series of indicators (set forth above) that can certainly be considered proven without relying on the statement of [Nombre01 064], namely: that between 1999 and 2000, the representatives of [Nombre01 091] in the country considered that the company was subject to irregular treatment by ICE; that a strategy was developed to resolve that problem, which contemplated approaching important people in different spheres; that although the need for ICE to migrate to GSM technology was envisioned and the institution had taken some steps in that direction, by the year 2000 it was not a consolidated decision; that several public officials related to the telecommunications field and with ties to [Nombre01 091] received, under similar circumstances and through the same channels ([Nombre01 058]. and [Nombre 114].), sums originating from [Nombre01 060] and, of course, that [Nombre01 091] obtained the contract for the 400,000 lines. Now, from all these indicators it can be reasonably deduced that the public officials received money from the cited company, and one could even suspect that these funds had some relationship with the award of the cited contract; however, what is not plausible is to state with certainty that those funds, all transferred to the public officials after the award, were to fulfill a promise that was made to them previously and separately to each one of them, in exchange for supporting the cited company, especially considering that, as was demonstrated, [Nombre01 091] was favored with the contract not by chance or due to irregular acts by the accused, but for meeting all the requirements of the tender specifications, which did not happen with the competition (proven fact No. 41). That is, regarding the existence of a prior promise made to [Nombre01 064] (and which the lower court uses to establish that a similar proposal was also made to the other accused who held the status of public officials), the only available evidence is the word of that cooperating accused, a person who for months expressly denied that assertion. It is important to note that in the oral hearing, [Nombre01 064] was asked about this and other inconsistencies detected in his version. He, despite acknowledging having said that the offer was subsequent to the award, denied having lied on September 30, 2004, arguing that at that time he had only tried to "cover himself or self-protect," and that he later was "specifying" (f. 14,962 and 14,986 front, volume XXXI). He even stated that "… it was obvious that this statement was not going to be sustained on its own; that is why the Prosecutor's Office told me that this could not be so, that I should justify it and it was then that I clarified things, I said that the offer was not after the award but before." (F. 14,962 front of the same volume). And indeed, despite [Nombre01 064] insistently denying having falsified the facts, it is indubitable, evident, that one of the two versions he offered does not correspond to reality. Either he lied when stating that there was no prior offer, or he lied when stating that there was one, making it impossible to establish, based on such a questionable and biased testimony, whether a promise of economic remuneration was indeed made to him before the contract for the 400,000 lines was finalized, or whether such an assertion only responds to his interest in satisfying the Public Prosecutor's Office to obtain the procedural benefit that was promised to him. For the trial court, the corroboration of the statement of [Nombre01 064] must be regarding general aspects and not with respect to each and every one of the related facts, since attempting this would make the opportunity criterion unproductive. Such a conclusion, in this particular case, is not acceptable, since the cooperating accused's statement has been inconsistent regarding a fact that, while specific, is the most important one in his entire version, namely, the existence of a promise of a gift prior to the abbreviated tender procedure No. 1-2001. As things stand, it is not possible to ignore the foregoing and deem the narrative plausible just because on some general facts it coincides with other evidentiary elements (e.g., regarding the scenario faced by [Nombre01 091] in a market that worked with captive technologies). It must be insisted that although Article 182 of the C.P.P. provides for the possibility of proving any circumstance of interest to the case by any permitted means of proof, which would include the statement of the cooperating accused, according to the rules of sound criticism, it is not the same to base a finding of certainty on a narrative that has been coherent and consistent, as it is to base it on one that is openly contradictory regarding the core fact of the accusation (the promise of a gift), a contradiction that, moreover, arose upon reaching an agreement with the requesting body, first to apply an expedited procedure and later an opportunity criterion. In addition to this, other inconsistencies appear in the statement of [Nombre01 064] that are impossible to ignore. For example, on September 30, 2004, [Nombre01 064] declared that, after the first shipment of money from [Nombre01 091], he delivered to [Nombre01 033] the sum of $370,000 in cash at his office. However, it turned out that the amount [Nombre01 091] had given him on that occasion was only $225,000. Questioned on this, [Nombre01 064] stated that the confusion was involuntary "...due to the turmoil of events" (f. 14,987 front) and that out of those $225,000, what he transferred to [Nombre01 033] at his office was the sum of $130,000 in the following manner: "...a certificate for $100,000 and 6 for $5,000..." (f. 14,987 front). The court, in its majority opinion, accepted [Nombre01 064]'s excuses, considering that the documentary evidence confirms that the cooperating accused delivered the aforementioned certificates to [Nombre01 033]. However, it is one thing to have it proven that this transfer of certificates took place, and quite another to have proven the reason for which this transfer occurred, a detail that can only be substantiated through the statement of [Nombre01 064], and to that extent, it is essential that his narrative be credible. We reiterate, regarding the prior promise of a gift and the involvement of [Nombre01 033] in the acceptance of that promise, the only existing evidence is the statement of [Nombre01 064] (who is not a witness, but an accused whose legal situation depends on what is resolved in this process), hence any inconsistency observed in it must be assessed with extreme care. In this context, it is striking that this deponent incurred in "confusions" of no negligible magnitude, such as the one already noted, for it is not every day that $370,000 dollars in cash from a criminal act are delivered to the [...]. Moreover, along these lines, it is striking how [Nombre01 064], when questioned by the defense attorneys of the accused on this and other important topics, stated he did not remember. It is impossible to ignore that he says he does not remember, for example, if in his statements before the requesting body he had insisted that the "bonus" was subsequent to the award, or if he had told [Nombre01 115] about his agreement with [Nombre01 033] or with [Nombre01 091] (f. 14,990 front), matters that are elementary and core to his testimony. Added to this, note that -according to [Nombre01 064]- the promise of a gift had to do not only with the migration to GSM technology or the use of tenders instead of direct contracting, but with the award of the contract for the 400,000 lines (f. 14,963 front); however, the abbreviated bidding procedure for the lease with option to purchase 400,000 GSM cellular lines was born because the Comptroller General of the Republic ordered it some time after, according to [Nombre01 064], the promise of economic remuneration had been made. Although, as the court indicates, by early December 2000 some proposal had already been developed, which is precisely the one discussed on the 5th (session No. 5249), the majority opinion chooses to ignore that it referred to 600,000 lines, 200,000 to expand the current ones -with TDMA technology- and 400,000 in GSM technology to be obtained not through a public tender but through direct purchase from 5 suppliers ([Nombre01 091], Siemens, Nortel, Ericsson, and Lucent), and it was the Comptroller's Office that, after that date (and, therefore, after according to [Nombre01 064] the promise of the gift was made to him), refused to authorize more direct purchases, opening the door to an abbreviated tender process. To that extent, it is difficult to believe that the promise of remuneration that [Nombre01 064] located at the beginning of December 2000 contemplated, as he said, a favorable vote in relation to a bidding procedure that at that time neither existed nor was foreseeable (again, what had been designed regarding the 400,000 GSM lines was direct purchase from various suppliers). In summary, although there are evidentiary elements that allow confirmation of some asserted aspects of the narrative provided by [Nombre01 064] (e.g., that after the award, [Nombre01 091] gave him a large sum of money), in its core aspects (that is, having received on December 2, 2000, a promise of economic remuneration that he conveyed to [Nombre01 033] on the 3rd of that same month and year; cf. proven facts identified with numbers 85 to 92), his narrative not only finds no support in other evidence, but has also been contradictory, to the point that it is impossible to rule out that things may also have happened in another way, namely, that it was he -[Nombre01 064]- and other public officials who demanded the delivery of economic remuneration from the top officials of [Nombre01 091]; that these were given after the contract for the 400,000 lines was awarded without there being a prior promise (a thesis that, we reiterate, he maintained for several months), or that the promise, if it existed, had a different content than what [Nombre01 064] mentions. For the undersigned, the statement of [Nombre01 064] is simply implausible, and therefore, it is not sufficient to prove the reason why the public officials received payments originating from [Nombre02 060]. It is important to emphasize that granting [Nombre01 064] an opportunity criterion in no way relates to the credibility that can be given to his testimony. As things stand, it is incomprehensible why the Public Prosecutor's Office, knowing that this accused, who was prone to receiving economic remuneration, provided them with two different versions on a subject as core as the promise of economic remuneration, opted to apply an opportunity criterion in relation to him, setting aside the aforementioned circumstances which, ultimately, as is now the case, make it impossible to consider his words credible. Furthermore, this Chamber has also taken on the task of listening to the audio and video recording of this cooperating accused's statement in the oral hearing, determining that the answers he gave to a significant number of questions posed by the defense attorneys of the other defendants were not spontaneous. Note that in multiple cases, before answering, [Nombre01 064] spoke with his defense attorney, Lic. Edwald Acuña Blanco, a professional who was seated next to him. This situation was even subject to questioning, not only because it was repeated, but because it occurred in the case of questions whose answers could not generate liability for [Nombre01 064] regarding criminal acts other than those negotiated with the opportunity criterion. However, the court refused to correct the situation, arguing that it could not be assured that Lic. Acuña Blanco was recommending to [Nombre01 064] what to answer (cf., e.g., the recording corresponding to September 16, 2010, file c0002100916102255.vgz, from 10:42:10 hours onwards). This is a conclusion that this court does not share. [Nombre01 064], as a cooperating accused, had the right to speak privately with his lawyer before testifying, so that he could advise him. He also had the right to testify in his presence (Art. 82 subsection e), 93 and 95 of the Code of Criminal Procedure) and, of course, that Lic. Acuña Blanco, if deemed necessary, could recommend he remain silent in response to questions whose answers could eventually imply some liability relating to acts other than those negotiated with the requesting body. What constitutes an abuse of those rights is for any accused (and even more so [Nombre01 064], who would obtain a significant procedural advantage in exchange for his statement) to limit himself to conveying his advisor's answers, it being naive to consider, as the majority opinion does, that the conversations between the accused and his lawyer after each question and before answering did not have the purpose of guiding his answers, dialogues that, moreover, had no reason to be in the case of questions related to the acts contemplated, at least formally, in the opportunity criterion, since it was regarding these that [Nombre01 064] pledged to cooperate. But, even assuming hypothetically that an accused who has decided to testify can do so under such conditions, what cannot be denied is that this behavior adds to the doubts that arise regarding the veracity of his version, since he was not even able to spontaneously answer many of the questions posed to him. Finally, note that in addition to the statement of [Nombre01 064], the only evidence that is somehow related to the issue of the prior promise is judgment No. 586-07, issued on October 16, 2007, against [Nombre 068] and in which he is convicted for having accepted a promise of a gift from [Nombre 105] (evidence No. 747); however, it is a judgment issued years after [Nombre01 064] rectified his statement (and after the requesting body, based on it, assumed a determined theory of the case) within the framework of an expedited procedure, where the acceptance of charges by [Nombre01 068] was purely formal in nature, whereby it does not carry sufficient weight to make a narrative as questionable as the one already set forth plausible. And indeed, if the requesting body's aim was to support the testimony of [Nombre01 064] with that of [Nombre01 068], or with that of any other accused who had reached an agreement with the requesting body (e.g., [Nombre01 105]), it should have offered their statements to be received at the time of the oral hearing, and not attempt to assign to a judgment, which even on the point in question -the acceptance of the promise of a gift- is quite succinct, an evidentiary significance that it does not have, since it is not a document containing a statement made with all the formalities provided by the legal system to be incorporated by reading into the oral hearing and examined in this process, as if it were a pretrial evidentiary proceeding. Added to this, one cannot lose sight of the fact that while [Nombre01 064] speaks of a promise of a gift made to him in December 2000 with three specific objectives (migration to GSM, public tender instead of direct contract, and award of the 400,000 lines), regarding [Nombre01 068] the judgment only alludes to a promise that was articulated when the bidding process was already underway, hence they are not identical situations where the demonstration of one allows the existence of the other to be derived. Regarding the statements of [Nombre01 041], acknowledging having made payments to public officials, and that of [Nombre01 001], accepting having received them, it is important to note that neither one nor the other indicated the reason for which the payments were made or received. That is, the doubt remains as to whether the amounts were to fulfill a promise of a gift made before the award (which leads us to doubt whether that promise of a gift described by [Nombre01 064] and the requesting body in relation to the public officials involved, actually existed), or whether the payments responded to other equally plausible dynamics, which, besides not being contemplated in the accusation, would fall under different criminal classifications (e.g., bribery, acceptance of gifts for a completed act, or extortion by a public official). It is important to add that the Public Prosecutor's Office, on the occasion of the oral hearing held before this Chamber, provided a document called "Written record of the oral presentation of the Public Prosecutor's Office/Vista Nombre64 091]", in which it states that the court, in its majority opinion, analyzed a large amount of both documentary and testimonial evidence that allows verification of the veracity of the statement of [Nombre01 064] in a series of points, which the requesting body set forth in 24 items, namely: 1) [Nombre01 091] used numerous instruments for forming public opinion to explain its interest in migrating to new trends. This was the beginning of a public discussion that joined the unmet demand. Furthermore, [Nombre01 091] also maintained that it was the object of discriminatory treatment by ICE and questioned the purchases made from other companies; 2) by May 2000, the decision to migrate to GSM technology had not been made; 3) there is evidence that [Nombre02 041] knew what was going to happen regarding the direct contracting of 160,000 lines to [Nombre02 091], which confirms what [Nombre01 064] stated in the sense that the former called him and asked him to attend the board of directors' session where an agreement on the subject, adopted in the previous session, was being questioned, a session [Nombre01 064] did not attend; 4) there was a close relationship between [Nombre01 064] and [Nombre01 033]; 5) [Nombre01 064] and [Nombre 041] had contact; 6) [Nombre01 041] acknowledged to [Nombre 116] that [Nombre01 058] was a kind of trust. The payer was [Nombre01 058]., not [Nombre01 091] directly, which confirms what [Nombre 064] stated regarding the query he made to [Nombre01 041] about that corporation; 7) regarding the content of the remunerative promise, [Nombre01 064] mentioned it was in exchange for migrating technology, promoting the tender, and voting affirmatively for [Nombre01 091]'s offer. For his part, [Nombre01 128] described how the company contacted [Nombre02 018] to discuss the elimination of direct contracts, also noting that [Nombre01 018] asked him to speak with his superiors. It is also recorded that a sum of money was sent to [Nombre01 018] through the same channel and at the same time as to [Nombre01 064], and there is documentary evidence accounting for the unease of one of the managers of the corrupt plan, which is associated with the three aforementioned objectives; 8) regarding the promise that [Nombre01 064] describes, there is evidence that money was transferred to this accused through [Nombre01 058].; 9) at the time [Nombre01 064] said the proposal was made to him to favor the migration, it had not yet occurred; 10) regarding the seduction process described by [Nombre01 064], there is abundant evidence accounting for the meetings, invitations, and attentions from [Nombre01 091] toward various public officials; 11) [Nombre01 064] placed the offer at the end of the year 2000, and that year was decisive for [Nombre01 091], as can be extracted from the complaints it filed and other documentary evidence (e.g., paid press releases); 12) regarding the meeting between [Nombre01 064] and [Nombre01 033], there is documentary evidence accounting for how they divided the money from [Nombre01 091]; 13) according to [Nombre01 064], it was because of the promise made that the money was paid to him. This is confirmed by the fact that both he and other public officials were paid through similar means -via [Nombre01 058].-; 14) [Nombre01 064] said that part of the money was for [Nombre01 033]. As to this, the evidence shows that [Nombre01 064] received a sum similar to the other public officials but doubled, which reveals that through his means, payment was made to two officials and not one. The transfer of money from [Nombre01 064] to [Nombre01 033] was demonstrated, and it was ruled out that it was a loan, as the latter stated; 15) and 16) there is evidence confirming the relationship of [Nombre01 046] with [Nombre01 091], the transfer of funds from that company to [Nombre02 046], and the transfer of funds from the latter to [Nombre01 064]. The cooperating witness's statement is also confirmed in the sense that [Nombre01 046] compensated him for having collected from [Nombre01 091] what was owed to him; 17) regarding the deliveries of money from [Nombre01 064] to [Nombre01 033] that the former describes, there is documentary evidence; 18) [Nombre01 064] initially said he had transferred funds to the account of [Nombre02 110], later clarifying that this was not the case. This is plausible since [Nombre01 064] provided a document showing the number of the said account, noting further that the link between that company and [Nombre01 033] was not even known by persons close to [Nombre01 033]; 19) it was demonstrated that [Nombre01 064] made a first payment to [Nombre01 033] using BICSA certificates belonging to his mother, since his account was being questioned, just as he stated; 20) it was established that part of the second payment made by [Nombre01 064] to [Nombre01 033] was used for the benefit of the latter; 21), 22, and 23) regarding other payments made by [Nombre01 064] to the then [...], there is documentary and testimonial evidence accounting for the trail followed by the money and how it ended up in the hands of people linked to [Nombre01 033], with part of those payments also being accepted by [Nombre01 033]; 24) [Nombre01 064] said that regarding the last payments made to him by [Nombre 091], he did not transfer money to [Nombre01 033] as it was difficult since the latter was in Washington and because he believed the distribution was unfair, which -the prosecutors say- the court used to explain why the transfer of funds was interrupted (f. 176,960 to 176,965 overleaf, volume XLIV). For this Chamber, the aforementioned indicators in no way confirm that the promise of a gift took place under the terms described by [Nombre01 064] in the oral hearing, and even less do they allow for categorically ruling out other equally plausible alternatives that were not charged. And, indeed, no one has cast doubt on the fact that the representatives of [Nombre01 091] were unsatisfied with the treatment they received from ICE (it must be remembered that captive technologies were used in the country and that, because of this, [Nombre01 091] could not compete); that they denounced the situation and designed a strategy to correct it, a strategy that involved approaching certain public figures, a contact that actually took place and that, as was demonstrated, was not unusual. Similarly, it was proven that some public officials, unfortunately, had the habit of receiving and even soliciting favors from companies that did business with ICE, and that this happened before the events investigated here. Nor has it been cast into doubt that [Nombre01 064] transferred funds to [Nombre01 033], or to individuals or legal entities close to him (indeed, there is abundant documentary evidence accounting for the foregoing); however, from this, one cannot derive with certainty that these funds were to fulfill a prior promise, accepted before the award, as stated by the Public Prosecutor's Office.

Nor can this be inferred from the fact that several defendants were given, some time after the award, similar sums under similarly similar modal conditions, given that, against the same backdrop, other scenarios are equally plausible: for example, that those public officials accepted the monies for acts already performed rather than for having undertaken a commitment to perform future acts (which would constitute the offense of accepting gratuities for an act already performed (aceptación de dádivas por un acto cumplido) and would rule out bribery (cohecho)); that those officials, abusing their position or functions, coerced or induced the promise or payment of the pecuniary benefit (extortion (concusión)), which, it bears adding, would not be surprising since, as we shall see below, there were public officials who solicited economic advantages from supplier companies, including [Nombre01 064] himself, who acknowledged having made “collection efforts (gestiones de cobro)” with [Nombre01 091] to get her to pay [Nombre 046]. Nor can it be ruled out that, even if there was a promise prior to abbreviated procurement procedure 1-2001, its content was something else. The same must be said regarding the actions of [Nombre01 064] and other officers in relation to the matter, since, indeed, no irregularity was demonstrated in the processing of the 400,000-line contract (which, we reiterate, began some time after the moment at which [Nombre01 064] located the promise of a gratuity, and which, moreover, came about because the Comptroller General of the Republic (Contraloría General de la República) ordered it, and not the ICE). We stress that the sole deponent who attested to the promise of a gratuity was [Nombre02 064], and his testimony, for the reasons noted above, in addition to being unlawful, is unreliable. In summary, given that the cooperating defendant’s statement is unlawful evidence and also implausible, it is appropriate to determine the consequences of its hypothetical exclusion, bearing in mind—of course—that, by reason of the extended effect set forth in Article 443 of the Code of Criminal Procedure (Código Procesal Penal), this exercise must be carried out for all the defendants in relation to whom such evidence was considered, and not only for those who challenged its use by the trial court. For all the foregoing, the second ground of the appeal against judgment filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Nombre01 041], is granted, as is section two, point D), and section three, point A), of the appeal against judgment filed by defendant [Nombre02 033], in his personal capacity.

VI.- Consequences of the foregoing resolution. Although the errors described above (the illegality of the prosecutorial discretion criterion (criterio de oportunidad) granted to [Nombre01 064] and, consequently, of the statement he gave at trial, as well as the breach of the rules of sound criticism (reglas de la sana crítica) in weighing that account) are of a formal or procedural nature, this court deems it unnecessary to order a remand, because, having conducted an exhaustive investigation, no possibility is foreseen that, in an eventual trial, additional items of evidence beyond those already existing could be legitimately introduced, and, to that extent, there is likewise no impediment to this panel proceeding to rule directly on what is appropriate in accordance with the provisions of Article 465 of the Code of Criminal Procedure, determining, through the analysis of the evidence remaining after hypothetically suppressing the statement in question, which of the facts that the trial court found proven remain intact. This is a solution that, while it may be atypical in the case of procedural errors, can be adopted in keeping with the principle of swift and full justice (principio de justicia pronta y cumplida), since it makes no sense to prolong the proceedings when there are sufficient reasons to believe that the state of affairs will not change (in that regard, see the resolutions of the Third Chamber (Sala Tercera) numbers 827-F-96, of 12:35 p.m. on December 23, 1996, and 1173-1997 of 9:30 a.m. on October 31, 1997). In light of the foregoing, we shall now proceed to conduct that analysis for each of the defendants.

• 1)[Nombre01 001]: The trial court found it proven, in fact No. 131, that [Nombre01 001] received from the corruptors a promise of a gratuity in exchange for taking the necessary actions within the scope of his functions as an advisor to the Executive Presidency of the I.C.E. and the person responsible for the execution of the 400,000-line project, to carry out that contracting in a manner favoring [Nombre01 091]. Based on this, the court found him to be a criminally responsible perpetrator of an aggravated corruption offense of improper bribery (cohecho impropio). Regarding the offense of improper bribery, a few remarks are important. The criminal offense contemplates two actions, namely: i) receiving a gratuity or any other undue advantage in order to perform, in the future, an act proper to one’s functions, and ii) accepting the promise of remuneration of that nature for the same purpose. As Nombre66 notes, referring to Argentine legislation, which on this point has some similarities to our own, “receives” refers to “one who enters into material possession of the object handed over to him,” and “accepts” refers to “one who admits to receiving in the future what is promised to him,” the same purpose being pursued in both cases—specifically, that the public official perform a future act pertaining to his functions—hence it can be sustained that a gratuity given to remunerate a functional course of conduct already adopted by the official does not fall within the bounds of bribery (see Nombre66. Derecho Penal. Parte Especial. Buenos Aires, Editorial Astrea, Volume II, 1st reprint of the 6th edition, 1998, pp. 272 and 273). In the case of [Nombre01 001], between these two typical modes of conduct, the second one was found to have been carried out, since, as indicated above, he accepted a promise of economic remuneration in exchange for executing—as a future act—the actions necessary for [Nombre01 091] to be favored in the 400,000-line GSM project. To specify the above is fundamental, since, as has been found proven, [Nombre01 001] received the funds originating from [Nombre01 060] after the award of the contract. If the award had already taken place, it is not plausible to maintain that [Nombre01 001] received a gratuity in exchange for favoring [Nombre01 091]—a future action—in that award, and, therefore, the other scenario contemplated in the criminal offense (namely, receiving the remuneration in exchange for undertaking to perform a future act proper to his functions) is entirely ruled out. Thus, having discarded the hypothesis of the receipt of the gratuity, we focus on the one that was charged and found proven, namely, that this defendant accepted a promise of a gratuity prior to that award in order to favor [Nombre01 091] therein. In this instance, a conviction requires the verification of a number of key elements of the criminal offense, namely, the promise of a gratuity, its content—the act proper to his functions in exchange for which the promise is made—and its acceptance. As explained in the judgment, from folios 15,894 to 15,980 front of volume XXXIII, as well as in its general sections concerning the general framework surrounding the contracting for the 400,000 GSM cellular lines (f. 15,512 front and following), what was set forth in relation to the alleged corruptors, their identification, the criminal planning, the signing of the consultancy contracts by [Nombre01 058] and [Nombre01 114], and the channeling of monies for the payment of gratuities and their distribution (f. 15,572 front and following), in order to find the promise made to [Nombre01 001] (and accepted by him) proven, the following was considered: i) [Nombre01 001] began working at ICE at the end of the year 2000—which even the defense accepted in closing arguments, f. 15,895, volume XXXIII—the employment relationship being formalized in January 2001. [Nombre01 001] was in charge of abbreviated process 1-2001, corresponding to the 400,000 cellular lines. He was the project coordinator and the one who had dealings with the supplier company; ii) [Nombre01 001] admitted before the media having received monies from [Nombre01 091]; iii) In the body of evidence, there appear three notes written on [Nombre01 058] letterhead. In the first, dated November 22, 2000, sent by [Nombre01 098] to [Nombre 041]—whom the trial court understands to be [Nombre02 041] and [Nombre01 098]—it is stated that steps are being taken so that [Nombre01 001], recently appointed by [Nombre01 095], will be [Nombre01 091]’s interlocutor in the negotiations regarding the new expansions, since he is someone with whom progress can be made because he is more political and, due to his recent appointment, is not tainted by the influences that affect the traditional administration. In the second, dated November 23, 2000, which is a continuation of the previous one, it is stated that they succeeded in getting [Nombre01 001] to lead the negotiation from now on and that, consequently, a more flexible stance can be expected from the ICE negotiating group. Finally, in the note of November 29, 2000, reference is made to the eventual refusal of the Comptroller’s Office to accept [Nombre01 095]’s proposal to contract with all the suppliers, which, according to the note, was [Nombre01 095]’s idea to avoid objections, but which in any case also made it possible to keep the claim to expand the then-current system at bay and accelerate the publication of the new tender for GSM, and thus keep [Nombre01 091]’s ability to fight alive (all these notes, as this sentence-appeal court verified, are visible in exhibit No. 686, titled “Main case file for Case Number 04-7810-0647-PE,” folios 295, 298, and 299 front); iv) [Nombre01 041] invited [Nombre01 001] to lunch on November 29, 2000; v) in internal note PE-0102-P of February 22, 2002, sent by the Executive Presidency of the ICE to the different strategic business units, they are informed that, for the abbreviated procurement process for the 400,000 lines, a commission was appointed, coordinated by [Nombre02 001], that would be in charge of the study and award of the project (study of bids, responses to requests for clarification, evaluation in all respects, recommendation for award, consultation and resolution of possible appeals, etcetera, work that would conclude once the contract was countersigned), a commission that would report to a high-level body composed of [Nombre01 095], [Nombre01 122], and [Nombre01 068]. This concerns communiqués that, despite being for internal ICE use, were sent to [Nombre 041], who kept abreast of what was happening at the ICE with the 400,000-line project, especially the functions assigned to [Nombre01 001], about which he was highly pleased. According to the trial court, the appointment of [Nombre01 001] was also part of the plan devised by [Nombre02 041] (f. 15,902 front); vi) even though [Nombre01 001] indeed did not have the final say on the project, as did the members of the board of directors (e.g., [Nombre01 022], [Nombre01 064], and [Nombre01 068]—the second having admitted to receiving gratuities from [Nombre01 091] and the last having been convicted for acts of a similar nature), for this company it was indispensable to have the project coordinator on its side, thereby ensuring that he acted in its favor. We are speaking of the person who had access to any information and whose opinion, moreover, carried great weight with officials such as [Nombre01 095], [Nombre01 122], and [Nombre01 068], who ultimately made the decision and brought it to the board of directors. It is important to remember, the judgment indicates, that [Nombre01 068], like [Nombre01 105], was convicted for committing crimes related to the offering and receipt of gratuities originating from [Nombre01 091]; vii) for the trial court, even before his appointment as an assistant in the Executive Presidency of ICE and later as coordinator of the 400,000-line project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] to be someone more political, with whom progress could be made, hence he was the right person for the proposed plan. For that reason, once he assumed the position of coordinator, in view of his functions, [Nombre01 041] and [Nombre01 078] promised him the payment of a gratuity in exchange for his taking the necessary actions within the scope of his duties to carry out the contracting in a manner favoring the interests of [Nombre01 091]; viii) the trial court weighed that the appointment of [Nombre02 001] took place in November 2000, when the concern about migrating to GSM technology was already under discussion within the board of directors, which, together with the conflicts that arose between [Nombre01 091] and ICE, which were explained at length in the judgment, made it necessary to have supporters of [Nombre01 091]’s cause, an objective achieved by promising gratuities to [Nombre01 022], [Nombre01 064], [Nombre01 068], and [Nombre02 001] himself. The lower court also returned to the issue of the so-called “action proposal (propuesta de acción)” by [Nombre01 124], in the sense that approaches between the company and people from different spheres and factions—business, religious, and political—were advisable, a suggestion taken up by [Nombre01 041] as the representative of [Nombre01 091] in Costa Rica to carry out a plan that included an approach to [Nombre01 001] and to other defendants in this proceeding; ix) finally, the existence of abundant evidence making it possible to demonstrate with certainty that [Nombre01 001] received and made use of the gratuities originating from [Nombre01 060] was weighed. In addition to the foregoing, when examining the situation of [Nombre 022], the trial court cited other indicators which, in its view, also implicate [Nombre01 001], namely: x) an official letter from [Nombre 126], dated February 17, 2005, wherein it is recorded that [Nombre01 091] began relations with this company in January 2000 and that, according to its records, [Nombre01 105], [Nombre 064], [Nombre02 001], and [Nombre01 022] used its services, which makes it possible to conclude that three of the persons favored with the trips were ICE officials, trips that took place after the countersigning of the 400,000-line contract and therefore are not unrelated to this matter (f. 15,845 and 15,846 front, volume XXXII); xi) the promise of a gratuity is also proven through the say-so of [Nombre01 064]. His account, the trial court states, is plausible, since, despite some differences from his earlier accounts, on the relevant points it has remained the same. According to [Nombre01 064], [Nombre01 041] and [Nombre01 078] offered him a reward if he helped in three areas, namely, migration to GSM, use of a tender or public bidding process (licitación o concurso público), and a favorable vote for [Nombre01 091]. The trial court states that if this was a constant practice, it is not strange that they approached other officials such as [Nombre01 022] or [Nombre01 001] (f. 15,862 to 15,864 front, volume XXXII). Exercise of hypothetical mental suppression of [Nombre01 064]’s statement and examination of the remaining indicators in compliance with the rules of sound criticism: As attorney Greysa Barrientos Núñez noted at the oral hearing held in this matter, there is no doubt that the representatives of [Nombre01 091] thought that the company was being excluded from the mobile telephony market and that they designed a plan to position themselves in that sphere. As is correctly explained in the judgment, ICE took its first steps with TDMA technology, which is a captive technology, since network expansions could only be made with equipment produced by the same companies that offered that technology and which, in our country, were Lucent Tecnologías de Costa Rica S.A. and Ericsson, companies that were contracted by ICE under the modality of direct purchases (compras directas), which prevented other companies from having access to that market, e.g., [Nombre01 091], a company that provided ICE with equipment for fixed telephony, and, moreover, [Nombre01 091] offered GSM technology equipment (cf. folios 15,540 and 15,541 front, volume XXXII). Based on the statements of several witnesses (e.g., [Nombre01 095], [Nombre01 128], [Nombre01 132], among others), the judgment under appeal concluded that in the years 1999 and 2000, GSM technology was establishing itself worldwide; that in 1999 there was a “tense” relationship between [Nombre01 091] and ICE; and that during 2000, [Nombre01 091] fought to be one more competitor in the mobile telephony market. This company, in addition to explaining to the ICE board of directors the advantages of migrating to GSM technology (apparently with little success, because, although those advantages were acknowledged, direct contracting continued, some of which [Nombre01 091] also questioned, e.g., the direct contracting of 100,000 lines in 2000, f. 15,563, volume XXXII), devised an entire strategy that involved making the matter one of public domain and national interest, which is why it contacted people from different spheres, e.g., legislators, opinion-makers, politicians, media outlets, and public oversight bodies (v.gr., the Comptroller General of the Republic), among others, in order to denounce practices they considered lacking in transparency; and as a result of these actions, the majority opinion indicates, on October 6, 2000, [Nombre01 095] publicly announced the migration to GSM technology, which in any case occurred a few months later (cf. 15,540 to 15,572 front, volume XXXII). In the same vein, there is no doubt that several public officials received sums of money from the aforementioned company, under similar circumstances of manner and time. This, however, is not enough to find it proven, as the majority opinion under appeal did, with a degree of certainty and not merely probability, that the payments made some time after the award were the product of a promise of remuneration made previously and accepted by [Nombre01 001], in exchange for his performing acts proper to his position in order to favor [Nombre01 091] with the 400,000-line contract. According to the judgment under appeal, the appointment of [Nombre01 001] was part of the corrupting plan. However, upon examining the matter, it is easily established that this conclusion does not follow from the evidence, and that it therefore breaches the rules of sound criticism. The appointment of [Nombre01 001] was made by [Nombre01 095], a person who was never implicated in the criminal plot. Furthermore, as [Nombre01 095] explained, what he intended with that appointment was to have someone more willing to engage in dialogue, who would make it possible to restore peace following the events that occurred with the so-called “combo eléctrico.” Thus, [Nombre01 095] indicated: “I appointed [Nombre01 001] directly; he came to the institution as a specialist in conflict resolution and helped greatly in the process of recovering labor peace in the wake of the events that occurred with the combo eléctrico. [Nombre01 001] arrived very close to my own arrival at ICE; part of the problem the institution had at that time was satisfying electrical service and telecommunications. I met [Nombre01 001] at the National University (Universidad Nacional), in the School of Planning; he introduced himself to me, described his characteristics and skills, and I believed he could help us recover social peace within the institution. I did not ask for references for him; the interview was enough for me. He seemed to me to have great capacity in the area of conflict resolution, and listening to positions and providing solutions to conflicts, and he demonstrated it. I was looking to rescue labor peace in the institution, and that is why [Nombre01 001] seemed right to me. I did not know if he had knowledge of telecommunications; he was an advisor to the Executive Presidency, he coordinated meetings with the different union groups, he perceived the concerns of those groups.” (Recording 67. 14,712 front, volume XXX). The trial court itself recognized that it was [Nombre01 095] who brought [Nombre01 001] to work at the institution starting in the final months of 2000, with his appointment as Executive Assistant in the Executive Presidency being formalized in January 2001 (f. 15,894 to 15,896, volume XXXIII). For all the foregoing, the majority opinion errs in pointing out that, even before his appointment and later as coordinator of the 400,000-line project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] to be a more political person and therefore suitable for the proposed plan, to the point of going so far as to maintain that the appointment of this public official was part of the strategy followed by the corruptors. On the other hand, although [Nombre01 001] was indeed the person responsible for abbreviated process 1-2001 corresponding to the 400,000 cellular lines, it is important to note that this process originated in 2001, not due to the interest of ICE or its high-ranking leadership, but because it was proposed by the Comptroller General of the Republic, and moreover, that circumstance does not prove that a promise of economic remuneration was extended to him in late 2000 or early 2001, as the trial court asserted. Nor can this be inferred from the lunch [Nombre01 041] had with [Nombre02 001] on November 29, 2000, or from the contacts that took place between said public official and the employees of [Nombre01 091], since, as the trial court itself accepted and was demonstrated with abundant evidence, which even documents abuses by public officials who solicited gratuities (regalías) from supplier companies dating back some time (e.g., the case of [Nombre01 022]), that type of encounter was frequent (f. 16,112 front, volume XXXIII). Along these same lines, it is also clear that [Nombre01 001] admitted on a national television channel to having received money from [Nombre01 091]; however, he never explained for what concept. Thus, the only thing that can be derived from the cited evidence is the acceptance of the money, which, it must not be omitted to state, was also proven through abundant documentary evidence; however, it is not an indicator from which it follows, as a certain fact, that [Nombre01 001] was given a promise of remuneration prior to the award. The same can be said regarding the notes examined in the judgment and mentioned above. From the first of them, dated November 22, 2000, what can be gleaned is that the appointment of [Nombre01 001] was the responsibility of [Nombre01 095]; therefore, we reiterate, it could not be affirmed that said appointment was also part of the criminal plan. Moreover, what that note indicates is that the appointment sought to accelerate matters regarding ICE’s expansion plans, in both fixed and cellular telephony, and that negotiations were underway to have [Nombre01 001] be [Nombre01 091]’s interlocutor in the negotiations concerning new expansions, since, being a “more political” person and due to his recent appointment, he would not be tainted by “the influences that affect the traditional administration,” hence it would be possible to make more progress. As can be observed, this is a note that merely alludes to [Nombre01 001]’s characteristics as a negotiator, characteristics that are even favorable to the defendant’s interests to the extent that he is considered free of influences, and from which it cannot in the slightest be inferred that there existed a promise of economic remuneration, or that he was at least a public official willing to lend collaboration to the company in the contract so often mentioned, especially considering that the evidence analyzed mentions both fixed and cellular telephony. As if the above were not enough, one must take into account that on November 22, 2000, the 400,000-line contract had not yet come into legal existence, and that, therefore, [Nombre01 001] had not been appointed as the person in charge of executing the project. The same holds true for the note dated November 23, 2000, in which it is simply stated that [Nombre01 001] will be the one to lead the negotiation with [Nombre01 091] and which speaks of direct contracting with that company, aspects that do nothing to support the showing of a prior promise in relation to the 400,000-line contract, or the showing of the content of that promise. Finally, regarding the note of November 29, 2000, we are speaking of a missive in which “[Nombre02 098]” (we understand, [Nombre01 098]) communicates the following to “[Nombre01 041]” ([Nombre01 041]): 1.- that the idea of including all the suppliers has been successfully introduced and that “[Nombre01 095]” (this chamber understands, [Nombre01 095]) believes he can convince the Comptroller’s Office to approve a scheme that would allow contracting with all of them, without objections; 2.- that although he ([Nombre01 098]) thinks this will not be possible, he recognizes that this makes it possible to keep the claim to expand the current system at bay, accelerate the publication of the new tender in GSM technology, and maintain [Nombre01 091]’s ability to fight; 3.- that [Nombre01 001] commented to him that the Swedes (understood to mean Ericsson) are very upset at having lost control over things and are not willing to cede supremacy in the metropolitan area to [Nombre01 091]; 4.- that [Nombre01 091] must not cede anything it has achieved, that Siemens and Nortel are entering the scheme thanks to [Nombre01 091]’s efforts, and that ICE knows that without this company’s consent it will not be able to advance. This is a note that also does not allow one to glimpse the making of a promise to [Nombre01 001] in exchange for carrying out the necessary actions within the scope of his functions to make the contracting for the 400,000 lines effective in a manner favoring [Nombre01 091]. At most, it confirms that [Nombre01 001] had spoken with [Nombre01 098] as of November 2000, a date on which—we reiterate—neither had the 400,000-line contract come into legal existence, nor had the defendant been appointed as the person in charge of its execution. The lower court states in its majority opinion that another indicator against [Nombre01 001] is that other public officials were given the same promise and that they accepted monies from [Nombre01 091]. As to this, note that although there is indeed evidence that makes it possible to establish categorically that [Nombre01 001], like other defendants, received monies originating from that company, there is none to find it accredited, at least not with a degree of certainty, that there was a promise of a gratuity prior to the award, to the point that it is not plausible to rule out other hypotheses: for example, that, without a prior promise, [Nombre01 001] accepted the economic remuneration for an act carried out, or that it was he who induced the representatives of [Nombre01 091] to give or promise him economic remuneration. In our view, only by considering the statement of [Nombre01 064], who was explicit on the point, could it be maintained that other public officials received promises of a gratuity, and, to that extent, could the lower court’s conclusion—to the effect that [Nombre01 001] also received such a promise—be rendered reasonable. Suppressing this statement, what remains on this point is a judgment rendered against [Nombre01 068]; however, no finding of certainty can be derived from this either, to the effect that [Nombre01 001] received the cited promise, since the referenced resolution was handed down in the context of an abbreviated procedure (procedimiento abreviado), in which the defendant—[Nombre01 068]—limited himself to accepting the facts attributed to him and the agreed-upon sanction (cf. exhibit No. 747, docket labeled Certified copy of judgment No. 586-07 Case File 06-000045-621-PE Aggravated corruption offense, against [Nombre01 068]). Although it is indeed found proven in that judgment that [Nombre01 105], with the collaboration of [Nombre01 046], offered [Nombre01 068] a promise of a gratuity in exchange for voting in favor of the company [Nombre 091] in the tender for the 400,000 lines, a promise that [Nombre01 068] accepted, this does not make it possible to find it proven that [Nombre01 001] was given the same promise, since the acceptance made by [Nombre01 068] of those facts is personal and, moreover, formal in nature, being a requirement for the abbreviated procedure to be applicable, and therefore its evidentiary significance, at least as far as this proceeding is concerned, is quite limited—arguments that are precisely the same ones that must be set forth in relation to criminal judgment No. 260-09, rendered against [Nombre02 105] for the offense of penalty of the corruptor, judgments that the ruling under appeal itself acknowledges have only been considered “…in relation to those who submitted to such procedures and solely with respect to the type of offense for which they were convicted, the sanction, parties, and eventual reparations or other merely referential data, without in any case evaluating the proven facts and remaining content” (F. 15,767 and 15,768 front, volume XXXII). More abundantly, as stated in the cited resolution, [Nombre01 068] received an offer from [Nombre02 105] and from [Nombre 046] himself, whereas in the case of the other defendants, among whom is [Nombre01 001], the making of the promises is imputed to other individuals, specifically, to [Nombre01 078] or to [Nombre01 041]; consequently, it cannot even be affirmed that the situations are identical, with the purpose of assigning that judgment a value it does not have.

Regarding the so-called course of action prepared by [Nombre01 124], the first thing that must be indicated is that this document does not contemplate the commission of criminal acts, but only the need for [Nombre01 091] to seek support in different areas of national activity (the business sector, the Catholic Church, political parties, etc.). Furthermore, it does not reasonably follow from it that [Nombre01 041] and [Nombre01 078] made a promise of a gift to [Nombre02 001]. As has been noted, there is no doubt that [Nombre01 001] illicitly increased his assets and made a series of transactions aimed at distancing the funds received both from their origin and from his person (which is one more element to confirm that he knew the irregular nature of those funds); however, to declare him the responsible perpetrator of the crime of improper bribery in its aggravated corruption modality, it is not enough to have proven the above, it is not even enough to have proven that the money he received from [Nombre01 091] had some relation to the issue of the 400,000 lines. Rather, it was essential to demonstrate that [Nombre01 001], prior to the award, accepted a promise of economic retribution in exchange for carrying out the necessary actions within the scope of his duties to make the contract for the 400,000 lines effective, favoring [Nombre01 091]. This, logically, would also require reliably ruling out other equally admissible hypotheses, for example, that without such a promise, he accepted the sums transferred to him for acts performed in his capacity as a public official, or that he was the one who induced [Nombre01 041] to give or promise him the aforementioned economic retribution, which, besides not having been ruled out, was also not part of the charges. Following this analysis, the court indicates that item of evidence No. 75, folios 324 and 325, note PE-0102-P of February 22, 2002, is important because, despite being for internal ICE use, it was sent to [Nombre01 041] and the company [Nombre 091] in France, which corroborates that the former was aware of what was happening regarding the GSM technology 400,000-line project and the functions that had been assigned to [Nombre01 001] as project coordinator. It is even affirmed, based on this evidence, that the appointment of [Nombre01 001] to that position was part of the plan devised by [Nombre01 041]. The errors in these reasonings are obvious. As already indicated, the appointment of [Nombre01 001] was not the prerogative of [Nombre01 078], [Nombre01 041], or [Nombre01 028]. Moreover, it is unknown who sent that internal note to [Nombre01 041] and [Nombre01 137]. Finally, but no less importantly, it is important to highlight that the evidence in question also adds nothing to the issue of the prior promise, since it only mentions the names of the commission that would be in charge of the 400,000-line project and those of the high-level commission on which that working group would directly depend, the high-level commission being composed of [Nombre01 095], [Nombre01 122], and [Nombre01 068]. That is, as established without any effort and acknowledged by the same lower court in the appealed judgment, [Nombre01 001] did not have the final word on the project, since there was another working group controlling the matter – the so-called high-level commission – and, of course, the institution's own board of directors, it being speculation on the part of the trial court to conclude that, despite this, the corrupters practically "designated" [Nombre01 001] as part of the criminal plan and that he was indispensable because, besides access to information, he had "weight" with officials such as [Nombre01 095], [Nombre01 122], and [Nombre01 068]. Similarly, what the lower court states in proven fact No. 132 is completely unfounded, namely, that [Nombre01 001] fulfilled the agreed actions and that once "he achieved," together with other ICE officials, the opening of the tender for the purchase of cellular telephony and the award of the 400,000 GSM line contract in favor of [Nombre01 091], he received the promised gift. This is because [Nombre01 001] was a mid-level manager, who lacked the power to decide on the aforementioned matter; because the contract for the 400,000 lines (abbreviated tender process 1-2001) originated within the Office of the Comptroller General of the Republic and not within the ICE, which until then had opted for direct contracting; and, finally, because [Nombre01 091] was favored with the contract legitimately, after fulfilling all requirements and having been recommended in the respective studies, and not due to the particular actions of [Nombre01 001] (who, it is reiterated, did not have the power to open the tender or award the contract), or any other accused person. In fact, in the same judgment it is affirmed that: "In the minutes of the ICE Board of Directors Session No. 5326 of August 28, 2001, from folios 4191 to 4215 (item of evidence No. 2), it is recorded that the date for receiving bids in relation to Abbreviated Process 01-2001 for the acquisition of 400,000 wireless telephone solutions in the 1800 Mhz band with GSM technology was set for July 20, 2001, and that only two bidders presented themselves: Consorcio Ericsson II and the joint offer between [Nombre02 060] and the Central American Bank for Economic Integration (BCIE). It is also evident from the cited minutes that the offer formulated by Consorcio Ericcson II had technical defects, for which it was disqualified, while the offer jointly presented by [Nombre01 060] and BCIE met all the requirements of the tender specifications, for which it was unanimously agreed to award Abbreviated Tender Procedure 01-2001 for the lease with option to purchase the equipment necessary for the ICE to provide 400,000 comprehensive wireless telephone solutions with GSM technology in the 1800 Mhz band, plus the associated services and components, to the joint offer formulated by [Nombre01 060] and BCIE. Regarding the aforementioned award, witnesses [Nombre 095], Executive President of the ICE, [Nombre01 287], and [Nombre01 195], President and Directors of the ICE at that same time, coincidentally declared that the awardee of the tender for the 400,000 lines was the company [Nombre 091], which was decided unanimously, based on the result of a study analysis by various interdisciplinary sectors of the institution, all of which recommended the award to the cited company. When witness [Nombre01 095] was shown the minutes of the ICE Board of Directors Session No. 5326, folios 3533 to 3557 of Volume IX (item of evidence No. 3), he said he recognized that document and that the Board's decision was unanimous to grant that tender to [Nombre01 091]. Finally, he declared that with the award of those 400,000 lines, the demand for mobile lines was largely resolved, that he does not know if they generated a surplus for the ICE, but that the negotiation was positive and justified the need to migrate to GSM technology based on the need to provide new and better services to the user with new technologies, a point on which the former executives [Nombre01 287] and [Nombre01 195] also concurred. The company Ericcson, dissatisfied with the award of the tender for the 400,000 lines and the disqualification it had been subject to, proceeded to file an appeal against the decision of the ICE Board of Directors, which it presented before the Office of the Comptroller General of the Republic on September 14, 2001, according to the received stamp on the appeal, which is recorded in section 5C of item of evidence No. 640, folios 2357 to 2297. The cited appeal was declared without merit by the Office of the Comptroller General of the Republic on December 17, 1991, according to resolution R.C.N. 796-2001, visible at folios 3303 to 3219 of section 7C of documentary evidence No. 640. Evidence item No. 640 contains a certified copy of the complete administrative file of Abbreviated Tender Procedure No. 01-2001…" (The transcription is literal, folio 15,570 and 15,571 front, Volume XXXII, the underlining is not from the original). In summary, the licit evidence analyzed comprehensively is insufficient to consider the crime of aggravated corruption in its improper bribery modality as having been established. Without the declaration of [Nombre01 064] as a guiding thread, all that remains is a series of ambiguous indications regarding the promise of economic retribution that, according to the accusation, [Nombre01 041] made to [Nombre01 001] in relation to the 400,000-line project. This conclusion does not change if the condemnatory judgments issued against [Nombre01 068] and [Nombre01 105] are considered, as already explained, since what is observed in these is only a personal and formal acceptance of charges, which in no way is sufficient to anchor the cited certainty judgment. Even if, from the position held by [Nombre01 001] at the ICE, we can extract with a high degree of probability that the economic retribution he received had some relation to the issue of the 400,000 lines, without the testimony of the collaborating accused, it is impossible to ensure with certainty that there was a prior promise and, even less so, that the delivery of the gift was conditional on the effective award of the offer that [Nombre02 091] would present to the ICE, as the lower court asserts in proven fact number 131 (folio 15,455 front). Without that declaration, it is necessary to insist, it is also impossible to rule out other factual hypotheses that were not the object of the charges, e.g., that the economic retribution admitted by [Nombre01 001] was granted to him without a prior promise, for an act performed in his capacity as a public official (as [Nombre01 064] had originally stated), or even that it was [Nombre01 001] who forced or induced the representatives of [Nombre01 091] to give or promise him a certain patrimonial benefit, or that, existing a prior promise, it had a different content. Along these lines, it is important to note that, although [Nombre01 041] admitted before [Nombre01 116] having paid public officials, among them [Nombre01 001], he never admitted having made a prior promise in exchange for [Nombre01 091] obtaining the contract for the 400,000 lines. Quite the contrary, what [Nombre01 116] describes is that, according to a draft declaration sent by [Nombre01 041], he indicated that it was [Nombre01 064] and other public officials who requested the rewards for having helped in opening public tenders instead of direct contracting (folio 15,157 front, Volume XXXI). While it is true that, according to the same witness, in the meeting held, [Nombre01 041] did not refer to this circumstance (cf. same folio), what was indicated in the mentioned draft (which is introduced into the debate through the testimony of [Nombre01 116]) contributes to the doubts that the undersigned have as to whether the promise of a gift prior to the award actually took place. Regarding the official communication from [Nombre02 126], in which it is indicated that that agency invoiced [Nombre01 091], on April 24, 2002, and in the name of [Nombre 001], the cost corresponding to "Visa to Cuba and reservation cancellation" (cf. folio 1771, Volume V, which we have reviewed), note that, contrary to what the court indicates, it does not follow from it that the promise of a gift existed. As happens with the monies that [Nombre01 001] received, the economic advantage supplied through [Nombre69] was admitted after the award of the 400,000 lines and, although it can be presumed to be related to that matter, it cannot be ruled out that it was received as retribution for an act performed without a prior promise, or that it was requested by the public official himself. Finally, it is important to add that although, when examining the particular case of [Nombre02 001], the trial court did not make a lengthy mention of the testimony of [Nombre01 064], from the comprehensive reading of the ruling and what was said regarding [Nombre01 022], it is inferred that this declaration played a central role in both cases, to the extreme that despite [Nombre01 064] stating he did not know if other public officials had received similar promises, the lower court used that evidence to conclude that this happened, a conclusion that this chamber cannot endorse at this procedural stage, since, as has been indicated, the account of the collaborating accused is, besides illegal, implausible. This being the case, and having ruled out, as it is impossible to prove, that a promise of a gift was made to [Nombre01 001], what must be analyzed is whether it is possible to consider another crime as established, specifically, that of illicit enrichment. In the first place, it must be noted that this is a residual crime compared to other more complex ones; hence there is no impediment to applying this basic definition when those more complex crimes (e.g., improper or proper bribery, acceptance of gifts for an act performed, extortion, etc.) cannot be proven, provided that its elements have been contemplated in the accusation formulated by the requesting body and have been considered proven in the judgment. The answer to that question is negative. The criminal definition of illicit enrichment provided in numeral 346 subsection 3) of the Penal Code in force on the date of the facts stated: "Shall be punished with imprisonment from six months to two years, the public official who without incurring a more severely punished crime: (…) 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position; (…)". As can be extracted from the above, the action described in subsection 3) contains two alternative conducts, namely, the acceptance of an offered gift and the acceptance of a presented gift. In the first supposition, the admission, which refers to the material receipt of the economic advantage, occurs, just as the presentation does, while the active subject remains in the exercise of the position. In the second, the admission or acceptance refers to the offering, where those actions – the offering of the gift and its acceptance – are what must occur during the exercise of the position. As the crime is consummated with the admission of the offering, the material receipt of the gift, if it occurs, will constitute a subsequent unpunishable act, and it is therefore irrelevant whether it takes place while the public official exercises the position that motivated the economic retribution, or if, by then, he had left it. Having clarified the above, note that from the list of proven facts that remains after hypothetically suppressing the offering of an economic retribution prior to the award of the contract for the 400,000 lines, the only thing left is that [Nombre01 001] admitted the gifts that were delivered to him in consideration of his office. We are speaking of a behavior that, at most, agrees with the first supposition of illicit enrichment described above, that is, the admission of the presented gift. However, neither in the accusation formulated by the requesting body, nor in the judgment, was it clarified whether that admission took place while the accused held the position, an element that also forms part of the criminal definition and which in the particular case is of utmost importance, since he would have admitted some economic retributions when he had left public service (namely, that received on May 7, 2004, for twenty-four thousand dollars – proven fact No. 167 – and that received on July 29, 2004, for twenty-five thousand dollars – proven fact No. 170). It is important to add that although, when examining the situation of this accused, the trial court indicated that he left the position on March 10, 2004 (folio 15,895 front, Volume XXXIII), since this is not an extreme contained in the charges formulated by the Public Ministry, it could not be incorporated into the proven facts without injuring the principle of correlation between accusation and judgment. But even if it is hypothetically assumed that the cited information was available, specifying which amounts he received while he was executive assistant to the executive presidency of the ICE and which he did not (and the hypothetical nature of the situation is underscored), the criminal action, in the case of the crime of illicit enrichment, would be time-barred. The crime in question is punishable with a prison sentence of 6 months to 2 years, that is, its statute of limitations, according to article 31 subsection a) of the Criminal Procedure Code, is 3 years and was reduced to 18 months with the first formal accusation (article 33 subsection a) of the same normative body), a procedural act that occurred on October 8, 2004 (folios 316 to 324 front, Volume I). That is, the 18-month period expired on April 8, 2006, and by then no procedural act had occurred that, by legal provision, had the virtue of interrupting or suspending its count. Furthermore, the resolution that declared this case to be of complex processing became final on June 26, 2006, a date by which the criminal action was already time-barred. It is important to add that although the Third Chamber, in resolution No. 1847-2014, indicated that in accordance with article 376 of the Criminal Procedure Code, the finality of the resolution declaring the matter as complex processing modifies the reducing condition of the statute of limitations periods, to the extreme of eliminating the reduction by half of the statute of limitations period that is in progress, it also added that "… the only exception to that reasoning would have arisen in the supposition in which the fatal statute of limitations period had expired before that ruling, since in that supposition the extinction of the criminal action due to the statute of limitations would have occurred, as this circumstance becomes a consolidated legal situation, to which the effects of the aforementioned article 376 could not have been applied …" (Cf. Considerando IV.-, resolution No. 1847-2014, the underlining is not from the original). This is exactly what happens here, because we would have that by the date on which the resolution declaring the process as complex processing became final (namely, June 23, 2006), the action to criminally prosecute the crime of illicit enrichment would have already been time-barred and, to that extent, there was a consolidated legal situation not modifiable by the application of the mentioned numeral 376. Finally, this conclusion does not vary one iota if article 62 of Law No. 8422, Law against corruption and illicit enrichment in public service, published in La Gaceta No. 212 of October 29, 2004, is considered. The cited article provides: "Statute of limitations for criminal liability. The criminal action regarding crimes against the duties of public service and those provided for in this Law shall be time-barred in the manner established by the applicable legislation; however, the following rules shall govern: a) Once the statute of limitations is interrupted, the periods set forth in article 31 of the Criminal Procedure Code shall run again for a new period, without any reduction. b) In addition to the grounds provided for in article 33 of the Criminal Procedure Code, 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 in judicial or administrative proceedings." (The highlighting is not from the original). From this norm, especially from subsection a), it is extracted that in the case of crimes against the duties of public service and those provided for in Law No. 8422, when any of the acts indicated by the Criminal Procedure Code as interrupters of the statute of limitations period count occur, the count begins to run again in its entirety (that is, without a reducing effect), which constitutes an exception to article 33 of the recently mentioned Code. This is an article that is applicable to procedural acts carried out from its entry into force, thus ruling out its retroactive application to prior acts. And precisely, retroactive application would be given to said norm if, for example, it were argued that article 62 subsection a) [which – it is reiterated – entered into force on October 29, 2004] eliminated the reduction of the statute of limitations period by half that operated with the interrupting act carried out days before, namely, on October 8, 2004, when [Nombre01 001] appeared to render his investigative statement. It is important to clarify that the cited position is endorsed by the same Third Chamber in resolution No. 1847-2014 cited above, insofar as it concluded that, because it is not in accordance with the Political Constitution to give retroactive effects to procedural norms, only with respect to the accused persons who were investigated after the entry into force of Law No. 8422, was article 62 of said law applicable to them, according to which the statute of limitations period, after an interrupting act, had to be counted in full and not reduced by half (folios 176,429 to 176,431, Volume XLIII). This situation only occurs in the cases of [Nombre01 018] and [Nombre01 006], so that only with respect to them was one more reason noted, in addition to those already given by that court, to argue that the criminal action was not time-barred. In the same sense as already stated, the Criminal Cassation Court of San José has pronounced itself, for example, in judgment No. 132-2006, of 10:30 a.m. on February 23, 2006, which, in what is relevant, indicates: "The jurisprudence of this Court (thus votes No. 391-1999, No. 372-2001 and No. 1058-2001), as well as that of the Constitutional Chamber (see votes No. 5821-1998 or No. 4397-1999) and the Third Chamber of the Court (cf. votes No. 891-1999, No. 368-2000, No. 383-2002, No. 1017-2002, No. 1019-2002 and No. 35-2003), has indicated that the rules on the statute of limitations, as norms of an instrumental nature that they are, are effective only towards the future and never towards the past. It is not possible, therefore, to apply procedural law retroactively, given that such a possibility is foreseen only for substantive norms and provided they are more beneficial to the accused. Under such consideration, the rules regarding the statute of limitations shall be effective from their entry into force for the facts or procedural acts that they foresee, but never for those already produced, as their effects cannot be rolled back to them. This being the case, although article 62 of the 'Law against corruption and illicit enrichment in public service' (Law No. 8422) provides that henceforth the reduction provided in article 33 of the Criminal Procedure Code shall not apply once the statute of limitations period is interrupted when one of the grounds that allow for it arises, restarting the entirety of the period from article 31 of that same legal body, such norm may not be applied to suppositions or cases in which, prior to its entry into force, which occurred on October 29, 2004, the statute of limitations period had already been reduced by half precisely as a consequence of one of the interrupting grounds provided for, as established at that time by procedural regulations. Such norm is effective only from its entry into force for cases in which one of the interrupting acts that procedural regulations foresee arises and provided that the period had not already been reduced beforehand as was provided, as proceedings are governed by the procedural law 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 period could not be reestablished based on a norm that was not yet in force at the time when, in accordance with the legislation that did govern, a ground with a reducing effect occurred. This means that when the 'illicit enrichment law' is enacted (October 29, 2004), in this process the statute of limitations period had already been interrupted and reduced by half, this in accordance with the regulation that governed it, that is, according to what was provided in numeral 33 of the Procedural Code. With this, it is achieved to better safeguard the rights of the parties and the essential principle of legal certainty, as it rules out that a later procedural legislation comes to resolve in a different manner what occurred in a prior process or procedure. This latter occurs even independently of the moment in which the extinction of the criminal action is declared (whether during the time the reform is in force or before it), because the resolution that establishes it has only a declaratory character and not a constitutive one regarding the statute of limitations already consummated. In this manner, if in the case under analysis, and as provided for by the law that was in force when it arose, the statute of limitations period was reduced by half once the corresponding interrupting acts occurred, the period that must be computed is one year and six months and not three years as stated in the appeal…" (The underlining is not from the original). Now, in addition to the lack of description of the typical elements of illicit enrichment, both in the charges and in the proven facts, as well as the expiration of the statute of limitations period for the criminal action having occurred, regarding the gifts that [Nombre01 001] received materially after March 10, 2004, one more reason can be added that would prevent considering the mentioned crime as established, namely, its lack of typicality. As was advanced supra, [Nombre01 001] figured as a public official at the ICE from January 1, 2001, to March 10, 2004 (folio 15,895, Volume XXXIII), a period during which he received most of the irregular funds. After leaving that position, on May 7, 2004, he received $24,000, and on July 29, 2004, he received $25,000 (proven facts numbers 167 and 170, folios 15,466 and 15,467 front, Volume XXXII). As was explained earlier, the criminal definition of illicit enrichment in the supposition that interests us here – admission of presented gifts – contemplates only the admission of gifts that were presented to the public official in consideration of his office while he remains in the exercise of the position, which does not occur with the amounts referred to above. This being the case, the conduct of [Nombre01 001], at least in the two already indicated suppositions, would also be atypical. For all the foregoing reasons, the appealed judgment is annulled insofar as it declared [Nombre01 001] the responsible perpetrator of a crime of aggravated corruption in its improper bribery modality. In its place, for procedural economy and in application of the principle in dubio pro reo, he is absolved of all penalty and responsibility for the mentioned crime. As unnecessary, a ruling on the appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted. Regarding the appeal that [Nombre01 001] presented on a personal basis, jointly with other accused persons, this chamber will refer to it later.

• 2)[Nombre01 022]. As extracted from folios 15,837 to 15,893 front of Volume XXXII and from folios 15,972 to 15,980 front of Volume XXXIII (where a joint assessment of the situation of [Nombre01 001] and [Nombre01 022] is made), as well as from the general sections of the judgment, also mentioned by this chamber when examining the case of [Nombre01 001], namely, those related to the general framework regarding the contracting of the 400,000 GSM cellular lines (folio 15,512 front and following) and with the supposed corrupters and the criminal plot (folio 15,572 front and following), to determine the responsibility of [Nombre01 022], the lower court considered a series of circumstances. Those set forth from folios 15,837 to 15,893 front of Volume XXXII can be summarized as follows: i) There is abundant documentary evidence that allows establishing that [Nombre01 022] was a member of the board of directors of the ICE from June 1, 1994, until May 31, 2002; ii) as a member of the cited board, the accused had voice and vote in the decisions adopted and, in what is relevant here, regarding the matter of the 400,000 cellular lines (the court cites here the minutes of some of the board of directors' sessions); iii) between [Nombre01 041], [Nombre01 078], and [Nombre01 022] there existed a relationship of trust and friendship, a relationship that continued after the year 2002 when his appointment to the board of directors ceased. There is abundant documentary evidence, all examined in depth in the ruling, which accounts for the attentions that [Nombre01 041] and [Nombre01 078] provided to [Nombre 022]. For example, they made hotel reservations in Madrid and Paris for [Nombre 022] (year 1996); they paid for trips, including one to Spain (1999), and arranged what was necessary for [Nombre01 139] to provide him with attentions on a trip he made to that country (1996). The court analyzed one of the documents that [Nombre01 022] sent to [Nombre02 078], requesting him to make reservations in Madrid and Paris. In that missive, besides indicating that he would write later, [Nombre01 022] dismisses himself with the words "hug [Nombre01 290]". This missive was answered by [Nombre01 078] with a copy to [Nombre01 041], confirming the reservations.

The lower court also highlights that [Nombre01 105] participated in some of these events, having accepted an abbreviated procedure; for example, in 1997, on the occasion of a trip by [Nombre01 022] to Spain, it was [Nombre01 105] who asked [Nombre 078], with a copy to [Nombre01 041], for help with [Nombre01 022]'s hotel expenses, help which was indeed provided; iv) the court weighed documentary evidence from which it follows that [Nombre01 091] began relations with the travel agency Nombre69 in January 2000 and that, according to that company's accounting records, [Nombre01 105], [Nombre01 064], [Nombre01 001], and [Nombre01 022] used its services, the latter accused in May 2002. According to the court, this is not a coincidence. Three of those favored with the trips were ICE officials and another was related to the company [Nombre 114], itself linked to [Nombre01 060]. Although these are trips that took place after the 400,000-line contract was countersigned, the appealed judgment states, they are not unrelated to those events, nor are the money transfers that [Nombre01 022] received starting in March 2002 (the date of the countersignature); v) the offers and deliveries of gratuities to the accused coincide in terms of timing, the amounts received, Nombre02 the company that issued the investment certificates, the company that ordered the money transfers, and the person who managed the bank account; vi) it makes no sense to think that the gratuities were given to [Nombre01 022] and [Nombre01 001] because [Nombre01 041] "liked them very much." They were given because they had been promised in exchange for these individuals promoting the migration to GSM technology; vii) report 011-SDI-206, evidence item 630, file named Refrend 114363, is an email message sent on September 5, 2001, by [Nombre01 022] to [Nombre01 078]. It concerns a study that the accused requested from an ICE official for his personal use and, when he had it in his possession, he forwarded it to [Nombre01 078] for the purpose of informing him of the "negative environment at the Contraloría General de la República" regarding, among other things, direct contracts 108212 and 108213 approved on December 5, 2000, by the ICE Board of Directors, aimed at expanding the [Nombre01 091] and Siemens brand exchanges existing in the country, which, at the date of that report, had not been countersigned. This is information that, although sent to [Nombre01 078] on September 5, 2001, that is, after the abbreviated process for the 400,000 lines had been awarded to [Nombre01 091] (on August 28, 2001), continued to be of interest to him, since this award had not been countersigned by the Contraloría General de la República, making it urgent for him to know what the Contraloría's criteria and requirements were regarding direct contracting and the possibility that was opening for [Nombre01 091] to expand the 400,000-line contract by 50%; viii) the relationship between [Nombre01 041] and [Nombre01 022] continued beyond May 31, 2002, when the latter ceased to be an ICE director. This is demonstrated by documentary evidence examined in the judgment (f. 15,850 front); ix) from the testimonial evidence, this close relationship is also drawn, as several witnesses attest to the presence of [Nombre01 022] in the offices of [Nombre02 091], to a link between [Nombre02 041] and [Nombre01 022], and to the sending of sealed envelopes—whose content could not be specified—by [Nombre01 041] to [Nombre 022], specifically to his home address and not to the ICE offices, as happened with items sent to [Nombre01 095] (e.g., the testimonies of [Nombre01 142], [Nombre01 144], [Nombre01 148], and [Nombre01 150], examined on folios 15,851 to 15,855 front); x) although there is no direct evidence of the promise of a gratuity (which is understandable in the case of an illegal act), its existence can be demonstrated through several elements: 1) The money received does not result from legal and transparent negotiations, and [Nombre01 022] is so aware of this situation that he used mechanisms to try to distance the received assets from his person, despite which, through exhaustive studies, it was determined that the funds originated from [Nombre01 060]. 2) [Nombre02 041], as a representative of [Nombre02 060], and [Nombre01 078], deemed it necessary to have the help of ICE officials and other agencies to open a public tender in which the company could participate and be awarded the 400,000 mobile lines. To reach this conclusion, the court considered the completely unfavorable history that said company had in contracting with the ICE. Based on the testimony of [Nombre01 128] and on abundant documentary evidence specified in the judgment (f. 15,857 to 15,861 front), [Nombre01 091]'s disagreement with ICE policies is explained, particularly those adopted to contract 83,000 lines in 1999 and 100,000 lines in 2000, which placed the company at a clear disadvantage against other competitors, e.g., Ericsson, a situation that was denounced by [Nombre 091] in various forums, namely, the ICE itself, the Contraloría General de la República, the Legislative Assembly, and the press itself (f. 15,857 to 15,861 front). This situation is what first reveals the need and urgency that [Nombre01 041] and [Nombre01 078] had, on the eve of a contract like the one for the 400,000 cell lines, to have people within the ICE who were aligned with them, a project about which they were aware, since, as the defense acknowledges, the issue of technology migration had been under discussion for some time. In fact, since 1998, [Nombre01 091] had offered to donate a GSM-PCS equipment for 2000 terminals. 3) An additional evidentiary element is the testimony of [Nombre02 064], to the effect that [Nombre01 041] and [Nombre01 078] offered him a reward in exchange for helping to materialize the migration to open or GSM technologies; to move toward a public tender or bidding process; and to vote in their favor. [Nombre01 064] was clear that both corruptors spoke to him about the courtesies or rewards for those who helped them. He also described the environment before the contracting of the 400,000 lines, the deficit in fixed-line technology and, above all, in mobile technology, pointing out that at the time, in fixed-line, the main supplier was [Nombre01 091], while in mobile, due to the use of captive technologies—TDMA—other companies could not compete. Even then, it was clear that the future was in cellular technology, and an interest in migrating to GSM was detected, since there was no captivity regarding the technology. He indicated that [Nombre01 091] used public opinion instruments to explain the importance of migrating to other technologies, and pointed out that said company Nombre11 maintained it was being subjected to discriminatory treatment. This assessment by [Nombre02 064] confirms that, before the 400,000-line contract, [Nombre01 091], through [Nombre01 041], expressed disagreement with the policies followed regarding direct contracts in which it could not participate. 4) Another element that allows the promise of a gratuity to be considered proven is the so-called "action route proposal," designed by [Nombre01 124] (f. 15,863 and following). According to the judgment, although [Nombre01 124] abstained at trial, the document in question describes actions to confront [Nombre01 091]'s problems with the ICE. In it, [Nombre01 124] (who—according to [Nombre01 132]—was a political strategist who knew the environment quite well) speaks of the need to gather support from the business sector, the Catholic church, minority parties, and the political sector. Specifically, he mentions the need to secure the support of three deputies, a pre-candidate for [...], Nombre10 from the directory of the Partido Liberación Nacional party, and the private advisory services of a former president. Again, an element that reveals the urgency and need that [Nombre01 091], in the person of [Nombre01 041], had to exhaust all instances so that its offer regarding GSM technology would be accepted by the ICE. 5) Another indication that accounts for the promise is the abbreviated procedure to which [Nombre02 068] subjected himself, for acts of the same nature as those already known (evidence item No. 747). 6) Although in the minutes of the board of directors' sessions in which [Nombre01 022] participated, he never spoke openly in favor of [Nombre01 091], this is not surprising, since by then the discussion was favorable to that company (f. 15,866 front). On the other hand, the circumstances pointed out by the lower court in folios 15,972 to 15,980 front of volume XXXIII (which largely reiterate those already mentioned), are the following: xi) The relationship between [Nombre01 091] and the ICE before the 400,000-line contract was tense. For example, in the direct contracting of 83,000 lines in 1999, the participation of [Nombre01 091] was not permitted, which is why this company denounced the ICE before the Contraloría General de la República and conducted a public campaign to explain that denunciation. The same can be argued regarding the year 2000 project to expand by direct contracting for 100,000 lines. In this case, problems again arose between both parties, and once again, [Nombre01 091] campaigned against what it considered to be a transparency problem at the ICE. All these campaigns aimed for [Nombre02 091] to position itself with the ICE and to break the chain of direct contracts to specific suppliers; xii) the action route prepared by [Nombre01 124]; xiii) the statement of [Nombre01 064] in the terms set out above; xiv) the statement of [Nombre01 116], who, in relevant part, spoke of the statements made by [Nombre01 041] before her and other Nombre10 of the commission that [Nombre01 060] sent to the country to investigate the events that were being published in the press. According to the deponent, [Nombre01 041] acknowledged having paid [Nombre01 022], [Nombre01 001], [Nombre01 064], and [Nombre01 018], and added that these payments were his initiative; xv) [Nombre01 001] accepted having received money from [Nombre01 091]; xvi) there are notes—also mentioned above—that speak of how [Nombre01 001] was a better interlocutor for [Nombre01 091]; xvii) [Nombre01 041] invited [Nombre01 001] to lunch; xviii) among [Nombre 022], [Nombre02 041], and [Nombre01 078], there was a relationship of friendship, trust, and collaboration, which persisted after the first ceased to be a member of the ICE board of directors. This is evidenced by a series of documents, namely: 1.- a missive dated May 22, 1996, where [Nombre01 041] requests [Nombre01 139] that, due to a trip by [Nombre01 022] to that nation, any attention be provided to him as he is a member of the ICE and this institution is [Nombre01 091]'s main client in the country; 2.- a fax, which can be dated between March 28 and 29, 1996, where [Nombre01 022] thanks [Nombre01 078] for an invitation and requests him to make hotel reservations in Madrid and Paris, a copy of that fax having been sent to [Nombre01 041]. 3.- There is also a fax sent on July 18, 1997, by [Nombre02 105] to [Nombre01 078] with a copy to [Nombre 041], indicating that [Nombre01 022] is going to Spain and requests help with hotel expenses in Madrid; 4.- the documents that show that on October 8, 1999, a trip to Spain was paid for him; 5.- evidence item No. 630, that is, an email dated September 5, 2001, where [Nombre01 022] informs [Nombre01 078] about the negative environment at the Contraloría General de la República concerning the direct contracts aimed at expanding the [Nombre01 091] and Siemens brand exchanges existing in the country, which, at the date of the report, had not been countersigned. In the same vein, he informs him of the 160,000-line contract awarded to [Nombre01 091] and about which, unofficially, it was heard that the Contraloría would by no means countersign because there were interests at stake, and that if additional cell lines were desired, it was feasible to do so through a 50% expansion process of the 400,000 lines (folios 15,973 to 15,978 front). Analysis of the aforementioned indications after the hypothetical exclusion of [Nombre02 064]'s statement: The fundamental evidence to establish that [Nombre01 022] received a promise of a gratuity from the corruptors, just as happened with [Nombre01 001], was [Nombre01 064]'s account. Although there are a series of indications that allow that fact to be considered proven with a degree of probability, without the cooperating accused's statement, it is impossible to do so with absolute certainty. As explained in the previous case, there is no doubt that the executives of the company [Nombre01 091] were upset with the ICE's mobile telephony policies, because the use of captive technologies prevented [Nombre01 091] from competing in that market. Similarly, it was demonstrated that they had no qualms about denouncing the situation in various forums, understanding that despite the need to migrate toward open technologies, the institution insisted on contracts that perpetuated TDMA technology. It was also demonstrated that [Nombre01 091] turned to a professional—[Nombre01 124]—to devise a strategy to confront this problem; that [Nombre01 022] had a close relationship with [Nombre01 078] and [Nombre01 041] that originated years before the events investigated here; that for years, [Nombre01 022] also received various advantages of economic content from this company, some of which were requested by him; and finally, that after the award of the 400,000-line contract, he received, like other public officials, funds originating from [Nombre02 060]. However, from all of this, it cannot be inferred that a promise of a gratuity was extended to [Nombre01 022] in late 2000 and early 2001, so that in exchange, he would carry out the necessary actions within his role as a director of the I.C.E. to drive the migration from TDMA to GSM technology, to promote purchases through bidding processes and prevent them from being aborted, Nombre02 and to vote in favor of [Nombre01 091] in the 400,000-line contracting process (cf. proven fact No. 117). Below, this chamber will make a thorough examination of the indications mentioned supra. Regarding the relationship of trust between [Nombre01 041], [Nombre01 078], and the co-accused [Nombre01 022], there is abundant evidence that accounts for it. Thus, for example, evidence item 59, called folder CRG 005 ICE, record 370760. In it, there is an unnumbered document, located before folio 345. It is a fax dated May 22, 1996, sent by [Nombre01 105] to [Nombre01 041] and in which he discusses a trip by [Nombre01 022] to Chile, requesting special treatment for him. In that same evidence item No. 59, on folio 354, there appears a fax sent by [Nombre01 022] to [Nombre01 078] between March 28 and 29, 1996, where he thanks him for an invitation and at the same time requests him to make reservations in Madrid and Paris for April 1, 2, 5, and 7. In this document, he signs off with the phrase "a hug [Nombre01 290]". On folio 352 of the mentioned evidence, the response that [Nombre01 078] gave to this message is also recorded, confirming the reservations. These are documents from 1996, which, although they reveal familiarity (one extremely censurable, as we are talking about an ICE director who repeatedly receives favors from a company that supplies the institution), do not provide elements to assert that there was a promise of a gratuity years later. The same applies to evidence item No. 65, from folder CRG.002-01/02 A ICE, consisting of a document dated July 18, 1997, addressed to [Nombre01 078] by [Nombre01 105], informing him of a trip that [Nombre01 022] would make to Spain, with the request that "they help him" with hotel expenses in Madrid, a city he would arrive in on Thursday the 24th in the morning and from which he would return to San José on Monday the 28th, a request that was indeed fulfilled according to the document on folio 144. The court also weighed evidence item No. 80, folio 238, which shows—as stated on folio 15,845 of volume XXXII—that on October 8, 1999, a trip to Spain was paid for [Nombre01 022]. As can be observed, we are talking about documents demonstrating that [Nombre01 022] had, years before the events investigated here, a close relationship (very censurable, by the way) with [Nombre01 091]'s representatives, clearly improper, but which in no way allows us to demonstrate that years later, on the occasion of the 400,000-line contract, a remunerative promise with a specific content and purpose was extended to [Nombre01 022]. Similarly, there is evidence from which it can be drawn that this close relationship continued after [Nombre01 022] ceased to be an ICE director (cf. evidence item No. 633, annex 3, folios 9 to 11), but from which a judgment of certainty cannot be derived regarding the point mentioned so many times. In addition, it suffices to review evidence item No. 80, specifically documents numbers 238 and 259, to conclude that it does not show that [Nombre01 091] paid for a trip to Madrid for [Nombre01 022], as the trial court asserted without any reason. What is established by this evidence is that he was invited to eat at a restaurant in that city called Botillería del Café de Oriente. The same must be pointed out regarding the official communication from [Nombre01 126], visible in volume V of the principal file, folio 1,771 front. According to the court, the trips referred to there, like the money received after the award, are part of the economic advantages promised before it took place. Such an assertion, the undersigned understand, lacks foundation. In that document, Nombre69 indicates that its accounting records show two invoices from May 2002 accounting for two trips made by [Nombre01 022] to Guatemala and Tegucigalpa, charged to [Nombre01 091]. Although this is additional evidence that accounts for the dynamic (extremely censurable, we insist) that existed between certain ICE public officials and the institution's supplier companies, where the latter lavished the former with advantages of economic content, it cannot be concluded from this that, on the occasion of the 400,000-line contract, a promise of economic retribution was formulated, which Mr. [Nombre01 022] accepted. As happened with the money received after the award, the receipt of advantages with pecuniary content does not allow us to demonstrate that fact, and even less to assert, as the lower court does, that they are part of what was promised, especially considering [Nombre01 022] was prone to requesting and receiving gratuities from that company years before the events submitted for examination here occurred. On the other hand, regarding the already mentioned evidence item No. 630, consisting of report 011-SDI-206, file Refrend 114363, which is an email sent by [Nombre01 022] to [Nombre01 078] on September 5, 2001, note that in it, the former warns the latter about the negative environment at the Contraloría General de la República concerning the direct contracts aimed at expanding the [Nombre01 091] and Siemens brand exchanges existing in the country, which had not been countersigned by the date of the report. He also tells him about the direct 160,000-line contract awarded to [Nombre01 091] and that, unofficially, it was heard that the Contraloría would by no means countersign it because there were interests at stake, and that if additional cell lines were desired, the purchase was viable through a 50% expansion process of the 400,000 lines. As can be appreciated, this is a communication that is subsequent to the award and from which, due to its content (which relates to direct contracts and not to the abbreviated competitive process for the 400,000 lines), it also cannot be inferred that months before, in anticipation of the award of the cited contract, the promise of the gratuity took place in the terms in which it was alleged by the prosecuting body. The same court understands that [Nombre02 022]'s intention with the cited communication was for [Nombre01 078] to be aware of the Contraloría's criteria regarding direct contracting and the possibility opening for [Nombre01 091] to expand the 400,000-line contract by 50%. Although this allows us to suspect, with some degree of probability, that the economic retributions were associated with that contract, it does not allow us to assert with a degree of certainty that before its award, [Nombre01 022] had received a promise of economic retribution. So much is this Nombre02 that, based on all the indications described above, it is also possible to consider other possibilities, namely, that even before the mentioned contract, and without needing to have received a specific promise of economic retribution, [Nombre01 022] was committed to [Nombre01 091]'s cause and acted in its favor (as seen, there is evidence showing that since 1996, this public official received advantages of economic content from the cited company), and that, therefore, the money received after the award was merely a retribution for an act performed. Equally, considering that [Nombre01 022] had no qualms about requesting economic retributions, it is also plausible that he was the one who induced the payment, or that, if some prior promise existed, its content was different. Regarding the proposal by [Nombre01 124], it is worth reiterating what has already been stated. The approach suggested by this professional by no means implies the commission of criminal conduct, and even less the formulation of promises of gratuities to public officials. The same must be noted regarding the sealed envelopes delivered to [Nombre01 022] at his home. The court assessed the testimony of [Nombre02 144], who, in relevant part, stated that, as a messenger for [Nombre01 091], he delivered them by order of [Nombre01 041]. For the lower court, the fact that these documents were not delivered at the ICE with a receipt copy, as usually happened with other documentation, demonstrates that their content was not discussable in the board of directors' sessions and that it served the illicit purposes proposed regarding the 1-2001 abbreviated procedure (f. 15,854 front, volume XXXII). This is a conclusion lacking any foundation, since, regarding the content of such envelopes, there is no information whatsoever that allows even a suspicion that it was documentation related to the cited competition, money, or securities (e.g., investment certificates). Furthermore, even assuming this hypothetically, as has been explained, the receipt of gratuities by [Nombre01 022] also does not allow the conclusion that the promise prior to the 400,000-line contract took place. Abundantly, note that the trial court, despite recognizing that the witness [Nombre01 148], the person in charge of preparing the envelopes, stated that their content was not related to the payment of gratuities, concluded that such statements "... do not exclude that the envelopes delivered to [Nombre01 144] by [Nombre01 041] were different from those mentioned by the witness [Nombre01 148] because the characteristics of the two types of envelopes were different: some were yellow and the others were not" (f. 16,115 front, volume XXXIII), an assessment that is also unfounded, because, at least from what was recorded by the lower court in the descriptive reasoning of the judgment, [Nombre01 144] did not raise categorical distinctions regarding the colors of the envelopes he was to deliver, noting only that they were "normal" manila envelopes (f. 14,774 and 14,775 front, volume XXX). Moreover, the witness [Nombre01 148] stated that the envelopes could be sent with or without a confidentiality seal, and that some of these went to the ICE (f. 14,785, 14,786, and 14,787, volume XXX), from which it reasonably follows that she also prepared envelopes for other destinations, and it was in relation to all or most of those that she prepared and sent that the deponent denied that their content was related to the payment of gratuities. For all the foregoing, this chamber understands that it is speculation by the lower court to assert that the envelopes delivered to [Nombre01 022] at his home contained documents linked to the criminal act. Nombre11 along these lines of thought, the court also weighed the testimonies that account for the presence of [Nombre01 022] at [Nombre01 091] (e.g., those of [Nombre01 148] and [Nombre01 150]). This is evidence that, while it allows the demonstration of the close relationship between this accused and the executives of [Nombre01 091], which originated years before the 400,000-line contract, does not allow the conclusion that the offer of a gratuity (in the terms and circumstances described by the Public Prosecutor's Office) took place. It is reiterated, this chamber does not doubt that [Nombre01 022] received funds from [Nombre01 060], nor that he was a public official prone to requesting and receiving advantages of economic content from that company; however, this does not allow the sustained assertion, with the degree of certainty required by our Political Constitution, that, on the occasion of the 400,000-line contract, a promise of a gratuity was extended to him in exchange for favoring the migration to GSM, the use of bids or public tenders, and for voting favorably toward [Nombre01 091]. Having said the above, we shall proceed to examine the three core aspects on which the trial court based its conclusion that the promise of economic retribution was indeed made, namely: i) the completely unfavorable history for [Nombre01 091] before the 400,000-line contract. The trial judgment analyzed a series of direct contracts in mobile telephony that took place from 1999 onwards, in which [Nombre01 091] was unable to participate, Nombre02 as well as the company's response to that situation, which ranged from exhausting all internal ICE instances to denouncing the matter before the Contraloría General de la República and public opinion. In particular, a direct contract for 83,000 lines in 1999 and another for 100,000 lines in 2000 were examined, both opposed by [Nombre02 091] (f. 15857 to 15,861 volume XXXII). All of this was to demonstrate that the cited company was dissatisfied with the ICE's policies on the contracting procedure being used, since only the then-existing suppliers, including Ericsson, had an option to participate. For the lower court, this constitutes a first element to understand the need that [Nombre01 041] and [Nombre01 078] had, on the eve of a contract like the one for the 400,000 cell lines, to have people within the ICE who were aligned with their interests, a project they were aware of because the transition to GSM technology had been under discussion for some time. By way of example, the court recalls that by 1998, [Nombre01 091] maintained ties with the ICE and made an offer to donate a GSM-PCS equipment for 2000 terminals, an offer that was accepted (folio 15,861). This is why the representatives of [Nombre01 060] chose to promise and later deliver a gratuity to [Nombre01 022]. ii) A second element of evidence that the trial court considered regarding the promise was the statement of [Nombre01 064]. According to the lower court, this "witness" spoke not only about the promise of a gratuity that was extended to him by [Nombre01 041] and [Nombre01 078] in exchange for helping to materialize the migration to GSM technology, for ensuring the purchase of material or equipment was done through a public tender or bidding process, and for voting in favor of [Nombre01 091]. He also said that the corruptors mentioned to him that they had courtesies for the people who helped them. With that statement, moreover, the situation facing [Nombre01 091] before the 400,000-line contract, described supra, was confirmed. iii) The action route prepared by [Nombre01 124] is a third element to consider the promise of economic retribution as proven. It refers to a plan aimed at confronting [Nombre01 091]'s problems with the ICE, which involved approaches to the business sector, the Catholic church, and the political sector. In that document, the need to gather the support of at least three deputies, a presidential candidate, two Nombre10 from the directorate of Liberación Nacional, and a former president is mentioned (evidence item No. 686). According to the appealed judgment, "This document, without any doubt, evidences the urgency and need that [Nombre01 091] had, in the person of the co-accused [Nombre01 041], 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 remember said company's disagreement with the ICE's administrative policies on the subject of contracting." (F. 15,864, volume XXXII).

As can be seen from the foregoing, after hypothetically suppressing the statement of the cooperating accused, we are left with only two pieces of circumstantial evidence (namely, the course of action proposed by [Name01 124] and the dissatisfaction experienced by the officials of the company [Name01 091] due to its exclusion from the mobile telephony market), which are clearly insufficient to uphold the judgment insofar as it found the promise of economic compensation to [Name01 022] to be proven. This conclusion does not change if these two pieces of circumstantial evidence are analyzed together with those mentioned previously (e.g., the long-standing relationship of trust between this accused and the representatives of [Name01 091]; the sending of envelopes whose contents are unknown; and, of course, the receipt of funds after the award), since although from this entire picture it is plausible to infer with a high degree of probability that there was a promise of economic compensation, or at least, that the funds received had some link to the contract for the 400,000 lines, this cannot be asserted with absolute certainty, to the point that other possibilities can be admitted, which have been mentioned repeatedly and which, moreover, were not charged by the requesting body, at least not in the alternative. As happened with [Name02 001], this chamber does not doubt that [Name01 022] irregularly increased his assets thanks to the gifts from the aforementioned company, and that there was no legitimate reason to justify his proceeding in this manner; however, this does not allow the promise of economic compensation charged by the Public Prosecutor's Office to be considered proven, since the pieces of circumstantial evidence remaining after the exclusion of [Name01 064]'s testimony, although multiple and independent, do not lead to the conclusion that the promise took place. And this is because, in the case of circumstantial evidence, the consequential fact or presumed fact (in this case, the promise and its acceptance by the accused) must be inferred from the pieces of evidence immediately, reasonably, naturally, one might say, which is not the case here, as those elements do not converge on a single conclusion that simultaneously excludes other options that were not contemplated, for example, that the content of the promise was different; that it was an acceptance of gifts for a completed act, without a prior promise; or even that it was the public officials who induced the payment of the gifts, which in the case of [Name01 022] would not be strange either, since, as was demonstrated, he was prone to soliciting all kinds of advantages of economic content from the officials of [Name01 091]. Finally, it is important to add that from the judgment rendered against [Name 068] (evidence No. 747), a judgment of certainty cannot be derived either that a promise of economic compensation related to the contract for the 400,000 lines was made to [Name01 022], since the aforementioned decision was issued in the context of an abbreviated procedure, where [Name01 068]'s acceptance of the facts was of a personal and formal nature and, to that extent, little evidentiary significance can be given to it in relation to this case. This is an argument that also applies to the conviction rendered against [Name01 105], with identical results. In addition to this, as indicated when examining the situation of [Name01 001], the offer that [Name01 068] received was extended by [Name01 105] and [Name 046] himself, whereas in the case of [Name01 022], it was attributed to other persons, namely, [Name01 078] and [Name01 041], by which we also cannot assert that the factual platforms are identical, to the point of logically deriving from one what is affirmed in relation to the other. Finally, as the appealed judgment correctly acknowledges, the analyzed board of directors' minutes do not reveal any particularly striking action by [Name01 022] in favor of [Name01 091]; hence, this is not evidence whose consideration modifies what was affirmed by this sentence appeals court. In sum, for the undersigned, without the testimony of [Name01 064], what can be established is that [Name01 022] received gifts from [Name01 091] before the facts investigated here—which was not charged—and that he also accepted them after the award of the 400,000 lines; however, it cannot be assured, at least not with certainty, that those funds were intended to fulfill a promise made to him months earlier and which he accepted, aimed at him acting for the benefit of [Name01 091] in very specific regards: technology migration, promotion of tenders or public competitions, and a favorable vote in the case of the contract for the 400,000 lines. Finally, it must be reiterated that although [Name01 041] admitted before [Name01 116] to having paid public officials, he never mentioned having made a promise to [Name01 022] in that sense. At the risk of incurring unnecessary repetition, note that—according to [Name01 116]—in a draft statement sent by [Name01 041], he indicated that it was [Name01 064] and other public officials who requested the rewards for having helped in the opening of public tenders instead of direct contracts (f. 15,157 front, volume XXXI). Although the witness also stated that in the meeting they held with [Name01 041], he did not say the above (cf. same folio), what was recorded in the cited draft increases the existing doubts about whether, before the award, a promise of a gift with specific content and purpose had been made, and whether it had been accepted by [Name01 022]. In summary, after excluding the illegal evidence and examining the remaining evidence, this court concludes that it cannot reasonably be inferred from it that there was a prior promise of a gift, meaning that the circumstances that would allow the crime of aggravated corruption in its modality of improper bribery (cohecho impropio) to be considered established cannot be considered proven. Thus, what is appropriate is to assess whether the facts that remain unaltered can be considered constitutive of another crime, which is ruled out in advance. As has been noted, the charges brought by the requesting body did not consider other possibilities, namely, that the gifts were received without a prior promise, for a completed act; that they were required or solicited by the public officials; or that, having been previously promised, they had different content. After discarding the prior promise in relation to the contract for the 400,000 lines, the only thing that can be considered proven is that [Name01 022] admitted—meaning received—the economic advantages that were delivered to him, conduct that cannot even be subsumed under the criminal type of illicit enrichment (enriquecimiento ilícito). As explained before, in the case of the admission of gifts presented in consideration of the public official's office, it is essential that the conduct takes place while the active subject remains in the exercise of the position. Now, as can be inferred from the proven facts (specifically numbers 115 and 118 to 126), [Name01 022] was an executive of ICE until May 31, 2002, and the gifts were presented to him from October 2002 to May 2004. Therefore, [Name01 022]'s conduct, in light of the crime of illicit enrichment, would be atypical. It is important to emphasize that in this case, the scenario of the admission of a gift offered, which is also contemplated by the criminal type of illicit enrichment, cannot be applied, since it has not been possible to prove that a gift was offered to [Name01 022], while he remained in his position and on the occasion of it, which he accepted, which would have been sufficient to consider the crime established and, consequently, would have made the moment when the economic advantage was materially received irrelevant. For greater abundance, it is noted that the criminal action to prosecute the crime of illicit enrichment would be time-barred. This crime is punishable by a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years and was reduced to 18 months with the first formal charge (articles 31 a) and 33 subsection a) C.P.P.), a procedural act that occurred on October 1, 2004 (f. 146 to 161 front, volume I). That is, the 18-month period expired on April 1, 2006, and by that time no procedural act had occurred that, by legal provision, had the virtue of interrupting or suspending its calculation. Furthermore, as explained when examining the situation of [Name01 001], a section to which the parties should refer to avoid unnecessary repetition, this conclusion is not modified if what is set forth in article 376 C.P.P. is considered, especially the interpretation that the Third Chamber made of this norm, since by the date on which the resolution declaring this case to be of complex processing became final (namely, June 26, 2006), the criminal action was already time-barred. Likewise, article 62 of Law No. 8422, Law against Corruption and Illicit Enrichment in Public Office (Ley contra la corrupción y el enriquecimiento ilícito en la función pública), is not applicable in the particular case of [Name01 022] either, since this provision came into force on October 29, 2004, that is, after the accused made his investigative statement and the interrupting and reducing effects on the calculation of the statute of limitations period operated simultaneously. Therefore, the appealed judgment is annulled insofar as it declared [Name01 022] to be the responsible perpetrator of a crime of aggravated corruption in the modality of improper bribery. Also, for procedural economy and in application of the principle in dubio pro reo, he is acquitted of all punishment and responsibility for this crime. As unnecessary, a ruling on the cassation appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted.

• 3)[Name01 006]: In relation to this accused, the court considered it proven that he accepted a gift while remaining in the exercise of his position, specifically, that of Deputy Head of the ICE Switching Department Directorate; a gift that was, furthermore, delivered in three installments. By virtue of these facts, [Name01 006] was convicted of a crime of illicit enrichment. As the basis for this decision, on folios 16,256 to 16,282 front of the judgment, volume XXXIV, the lower court considered the following: i) [Name01 006] had a relationship with the company [Name01 091], since the specialized switching area was the one responsible for carrying out the equipment assemblies and administering the contracts. In addition, [Name01 006] had active participation in several contracts awarded to that company and which were recommended by him, namely, (i) No. 103830 for the acquisition of 38 remote subscriber units, awarded in session No. 5109 of September 7, 1999; (ii) contract No. 104333 for the acquisition of 509 primary access digital TED ISDN in exchanges, awarded on April 13, 2000, and in which [Name01 006] was co-administrator of the contract; (iii) contract No. 105543 for the expansion of the intelligent network, awarded in session No. 5210 of August 22, 2000. In this one, [Name01 006] was in charge of the acceptance tests; (iv) contract No. 108213 for the expansion of [Name 091] 1000 - E10 exchanges, awarded in session No. 5294 of May 9, 2001. [Name01 006] was co-administrator of the contract; (v) contract No. 112346, execution of the purchase option for the intelligent network, awarded in session No. 5375 of February 12, 2002; (vi) contract No. 112765, expansion of the [Name 091] exchanges, awarded in session No. 5404 of May 14, 2002. [Name01 006] was the administrator of this contract. The proof of the foregoing is documentary in nature and is mentioned on folios 16,257 and 16,258 front of the judgment. ii) Due to the administration of the contracts, [Name01 006] had a close relationship with the representatives of [Name01 091], a matter also attested to by witnesses such as [Name01 153] and [Name01 156]. iii) Based on those same testimonies and documentary evidence No. 344, it was established that [Name02 006], as head of the ICE switching department, had, among other functions, to determine the needs regarding expansions or improvements in the different areas of the country. As coordinator, he had under his command a team of technicians who determined equipment needs; based on these needs, a document was prepared and, in the words of witness [Name01 156], "it became a requirement"; the accused [Name01 006] was responsible for signing the certification of the supplier's need. Subsequently, he took the award recommendation to the heart of the ICE board of directors so that this body could decide whether to convene the competition. In addition to the competencies already mentioned, he was also in charge of assembling the equipment, executing the contracts, and evaluating performance, for which he was a key official within the award procedure, not only internally at ICE but also for those companies that intended to participate (f. 16,276 front); iv) [Name01 006] had nothing to do with abbreviated procedure 1-2001 regarding the contract for the 400,000 lines, but he did with fixed telephony contracts; v) there is documentary and expert evidence also examined in the judgment that demonstrates that [Name01 006] received money originating from [Name01 060] and that it was transferred to him using the same mechanisms employed to deliver economic advantages to other public officials (namely, through the account held by [Name01 058].); vi) this accused received the sum of $110,336.20 dollars, an asset increase that has no justification whatsoever, especially considering that his monthly salary was approximately 400,000 colones, according to the testimonial evidence presented. Consequences of the hypothetical exclusion of the testimony of [Name02 064]. As this chamber understands it, the statement of [Name01 064] was not decisive in establishing the responsibility of [Name01 006], to the point that if hypothetically suppressed, the decision suffers no modification whatsoever. Therefore, the court will proceed further below to hear the claims that his defense attorneys have made against the trial judgment.
• 4)[Name01 018]: The lower court convicted him for the crime of illicit enrichment, understanding that, in order not to violate the principle of correlation between charge and judgment, it was not possible to consider the promise of a gift proven and convict for the crime of aggravated corruption in its modality of improper bribery, in the terms requested by the Public Prosecutor's Office. To determine the responsibility of [Name01 018] regarding the mentioned illicit enrichment, the court weighed a series of circumstances that can be schematized as follows: i) [Name01 018] was a deputy in the Legislative Assembly from May 1, 1998, to April 30, 2002. Then, from May 8, 2002, to April 21, 2004, he was executive president of the Costa Rican Social Security Fund (this is evidenced by the documentary evidence cited on folio 15,998 front and the testimony of [Name01 158], also cited on that same folio); ii) as a deputy, he was part of the special mixed commission that was formed after the protests over the so-called "combo" of ICE. The intention was that no bill related to ICE would be processed without the opinion of that commission (thus, evidence No. 59, folio 93). This is of interest, says the court, because at the management offices of [Name01 091] a document was seized called "Nueva Ley de Telecomunicaciones (Combo ICE), impacto sobre [Name01 091] y acciones a seguir" ("New Telecommunications Law (Combo ICE), impact on [Name01 091] and actions to follow"), which reveals the importance for the company of any action that could modify or affect commercial expectations or contracts with the aforementioned institution (f. 15,999 front); iii) [Name01 063] worked at ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Name01 091] and [Name01 018]. The representatives of [Name01 091] approached the latter thanks to the mediation of [Name01 063], to expose their concerns about the direct contracts that ICE was making and that, according to [Name01 091], left it out of the market. This is evidenced by report No. 428-DEF-443-05/05, evidence No. 630, PC06, file "Libro blanco," and the statement of [Name01 128]; iv) based on the testimonial evidence presented, it was ruled out that [Name01 018] had been a consultant for the company [Name01 091], as well as that he had had any commercial or labor relationship with [Name01 058]. that would justify the receipt of the money that was delivered to him. Even [Name01 158] stated that this accused told her he had earned money with [Name01 091] easily, as he had done nothing, and, according to witness [Name02 116], [Name 041] spontaneously told her that he had paid bribes to public officials, among them [Name01 018]. The same applies to the testimony of [Name02 142], who pointed out that [Name01 041] acknowledged having paid gifts to public officials in the media. Finally, the company [Name01 091] had within its contracting policies a prohibition against hiring public officials as consultants. v) Based on the statement of [Name02 128], it was established that [Name02 018] was informed about the issue of mobile telephony and [Name01 091]'s interest in eliminating direct contracting without a public tender. [Name01 091] had carried out two public and denunciation campaigns, one to oppose the contracting of fixed lines to Ericsson in 1999 and another in 2000, regarding GSM technology, with contact with [Name01 018] existing since 1999. There were several meetings with the then-deputy and, on one occasion, [Name01 018] asked [Name01 128] to speak with his superiors, a meeting that, according to the witness, did take place. vi) For the court, from what was said by [Name01 128] it can be inferred that [Name01 018] was contacted to discuss the elimination of direct contracts and the opening of public tenders, which leads to the issue of the 400,000 cellular lines. This confirms the version of [Name02 064] , in the sense that the offer of the gift had to do with the issue of mobile exchanges and GSM technology and, to that extent, there are pieces of circumstantial evidence that allow one to glimpse that a remunerative promise was also made to [Name01 018] under similar modal and temporal circumstances to the one made to [Name01 064], except that while the latter was called by [Name01 078], it was [Name 018] who asked to speak with [Name01 128]'s superiors. Furthermore, the payments were also made to him through the same channels as to other accused. vii) There is documentation showing that on August 17, 2000, at the café [...] , [Name02 041] met with [Name 018] and [Name 063]; viii) [Name01 144], a messenger for the company [Name 091], said he had delivered envelopes, sent by [Name 041], to the accused [Name01 022], [Name 001], [Name01 018], and [Name01 028], at their homes and offices. [Name01 041]'s secretary said that envelopes were sent to ICE and to the accused, and that she knew their contents; however, "…this does not exclude that [Name01 144] carried envelopes that were not the ones she knew about; envelopes that also had different characteristics from those described as known to her person." (F. 16,011 front). ix) Just as in the year 2000, the public campaign of [Name 091] in favor of public tenders and migration to GSM technology began, also between July 2000 and December of that year, representatives of [Name01 091] met with deputies and other figures from the political sphere. It was then that the encounters with [Name01 018], [Name01 001], and [Name01 064] took place, all of whom ultimately received money originating from [Name01 060]. x) Finally, the lower court assessed abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [Name01 018] originated from [Name01 060]. xi) Despite the foregoing, the court understood that the prosecutor's request to convict [Name01 018] for the crime of improper bribery is not acceptable, on the basis that this accused met with the representatives of [Name01 091] in fulfillment of the obligation that every deputy has to receive the public. The foregoing is because in fact number 220 of the charge, the offering of the gift is alluded to, and in fact number 221, its acceptance, without the elements of improper bribery having been described. Therefore, the court indicates, regardless of whether what was stated by the Public Prosecutor's Office in closing arguments was proven or not (namely, that a remunerative promise was made to [Name01 018] for receiving the public), since the charge does not contain such information, the only crime that can be considered established is that of illicit enrichment, insofar as he admitted the gift that was presented or offered to him in his capacity as the position he held (f. 16,054 to 16,056 front). In the case of the accused [Name01 018], the hypothetical exclusion of [Name01 064]'s statement has particular significance, because although without that piece of evidence, as will be explained further below, it is impossible to uphold the appealed judgment insofar as it considered it proven that this defendant admitted a gift that was offered to him under the terms provided for in the criminal type of illicit enrichment, the application of the other scenario contemplated in art. 346 subsection 3) of the Penal Code is not ruled out, namely, the admission of a gift presented. This being the case, and it being evident that resolving the legal situation of this accused (including the issue of the statute of limitations) requires a more careful examination of the facts and evidence, this chamber will proceed to hear the appeals filed by [Name01 018] personally and by his defense attorney, Mr. José Miguel Villalobos Umaña.
• 5)[Name02 033]: The core evidence considered by the lower court was the statement of [Name01 064]. Without it, there is no possibility whatsoever that the judgment of certainty reached can remain unaltered, since although after its hypothetical suppression, it can reasonably be demonstrated that some funds from [Name01 060] ended up in his hands, or in the hands of individuals or legal entities close to him, these are funds that [Name01 064] received in the first instance and that he then, only in part, transferred to [Name01 033]. Furthermore, the only evidence regarding the motive or justification for these transfers is the statement of the cooperating accused himself, to the effect that at the end of the year 2000, he spoke with [Name01 033] about the promise of economic compensation that had been made to him by the top executives of [Name02 091] in relation to the issue of the 400,000 lines, and that the then [...] Nombre70 encouraged him to accept it. Therefore, without [Name01 064]'s account, the conviction imposed on [Name01 033] is left utterly devoid of any evidentiary basis. To better explain the previous conclusion, this chamber will begin by summarily pointing out the arguments the trial court used to convict [Name01 033], but not without first clarifying that it will not delve into the reasons the lower court invoked to deem [Name01 064]'s statement credible, not only because they have already been analyzed in this resolution but because they lack all interest if it is taken into account that the opportunity criterion and the evidence derived from it were declared illegal. Regarding [Name01 033], the following was weighed: i) [Name01 064] had an extensive career in public service. He was, for example, a deputy, Minister of Housing and Urban Settlements in the [Name01 033] administration (from May 1998 to July 1999), presidential advisor from August 1, 1999, to May 9, 2002, and general director of the presidential house. Also, with the endorsement of [Name01 033], he was appointed by the government council as a director of ICE from August 3, 1999, onward, positions he held simultaneously. [Name01 064] was a director of ICE until May 31, 2010, and for this, he had the endorsement of the following administration. [Name01 064] was a person very close to [Name01 033] and, despite the hierarchical relationship between them, there was also a relationship of friendship (folios 16,088 to 16,111, volume XXXIII); ii) [Name01 064], as an executive of ICE, had a relationship with [Name02 041] and [Name01 078] (f. 16,111 to 16,116 front); iii) according to what was determined, since 1997 there had been a practice by [Name01 091] of offering various attentions and courtesies to ICE public officials. The lower court says that although the ultimate purpose of this practice was not to make illicit proposals, [Name01 041] and [Name01 078] used it to approach public officials, gain their trust, and determine if they could accept a potential remunerative promise. All of this confirms what was said by [Name01 064], in the sense that there was a process of seduction that culminated in the promise of a gift (f. 16,112 front to 16,116 front); iv) there were encounters between some public officials—[Name01 022], [Name01 001], and [Name01 018]—with [Name02 041], and the latter also sent them envelopes (f. 16,114 and 16,115 front); v) [Name01 041] made a spontaneous statement where he accepted the payment of gifts to public officials, a statement alluded to by several witnesses ([Name01 116], [Name01 164], and [Name01 142]). [Name02 068] admitted the facts, [Name01 001] accepted before the press having received money, and [Name01 064] also admitted having received from [Name01 041] and [Name01 078] a promise prior to the award, which he made known to [Name01 033] (f. 16,111 and 16,112 front); vi) regarding the existence of the remunerative promise made to [Name01 064], the core evidence is his own "testimony," which the lower court deemed credible. Regarding the meeting between [Name01 064] and [Name01 033] at the latter's house, that statement is also the core evidence (cf. folios 16,126 to 16,134 front, volume XXXIII). [Name01 064] said that he, at the end of 2000, met with [Name01 078] and [Name 041] at the former's request, at the [Name01 094] restaurant, near the airport, an opportunity in which both offered him a promise of a gift in exchange for promoting the technology migration, pursuing the tender process instead of direct purchases, and voting in favor of [Name01 091]. That he, in principle, accepted, but upon thinking it over, decided to ask [Name01 033], as the latter was in a better position to direct the board of directors members' criteria if necessary. That is why he met with [Name01 033] the following day to present the offer to him, which the then [...] Nombre07 accepted, telling him that the profit distribution would be 60% for [Name01 033] and 40% for [Name01 064]. vii) To confirm the existence of the meeting at [Name01 094] , it was considered that, according to their migratory movements, all the participants ([Name01 064], [Name01 041], and [Name01 078]) were in the country by December 2, 2000. Likewise, it was weighed that for December 3, the date on which [Name01 064] met with [Name01 033] at the latter's house according to him, both were in the country (f. 16,130 and 16,131 front); viii) two of the executives linked to these acts of corruption were appointed in the [Name01 033] administration, namely, [Name01 064] and [Name01 068], the latter already sentenced through an abbreviated procedure. As for the third, [Name01 022], although he was appointed in another administration, he had a prior link with [Name01 033] (f. 16,120 and 16,121 front); ix) regarding the delivery and receipt of the gift, it is found that it was [Name01 064] who transferred the funds to [Name02 033]. That is, [Name01 058]. did not transfer money to the accounts of [Name01 033] or to the accounts of individuals or legal entities in his most immediate circle, but rather transferred them to [Name01 064] who, in turn, delivered them to [Name01 033] in the terms described from folios 16,145 to 16,151 front of the judgment. For this chamber, with the statement of [Name01 064] hypothetically excluded, the conviction imposed on [Name01 033] is left without any evidentiary basis whatsoever. The cooperating accused's statement is the only evidence to demonstrate that he shared with [Name01 033] the promise that, according to him, [Name01 041] and [Name01 078] had made to him. Without that account, it is impossible to uphold the appealed judgment insofar as it considers it proven that the then [...] Nombre59 gave the support needed to accept the promise of economic compensation, or that it was [Name01 033] who determined the manner of distributing the irregular profits delivered by [Name02 058]. It is important to note that abundant evidence was introduced and examined during the trial that allows one to determine that funds originating from [Name01 060] reached the hands of [Name01 033] or those of his associates; however, from this it cannot be inferred that [Name01 033] participated in the acceptance of the promise of a gift in the terms that [Name01 064] referred to, or that the funds were associated with that promise. Note that [Name01 058].

[Name01 033] never directly delivered money to [Name01 033] or to individuals or legal entities in his circle, but rather delivered it to [Name01 064], who in turn transferred part of it to [Name01 033]. Let us call things by their name: without his "testimony" (and again clarifying that the word testimony is used in a non-technical sense, since the cooperating defendant is not a witness in the strict sense as he does not offer his statement under oath), it is impossible to assert, as if it were a proven fact, that there was a link between the then [...] [Name25] the mentioned company. This is because, aside from the meeting between [Name01 064] and [Name01 033] that, according to the former, took place, [Name01 033] did not carry out any action that would allow suggesting, at least as probable, his participation in the investigated acts. Neither the accusation nor the judgment attributes to him having contacted any member of the Board of Directors of ICE or any other public official for the purpose of determining their decisions regarding the matter of the 400,000 lines. Nor was he even accused of maintaining contacts with the heads of [Name01 091] who were branded as corruptors. Therefore, the demonstration of the link between [Name01 033] and the alleged promise of economic remuneration prior to the award of the mentioned contract depends exclusively on evidence that this appellate court has declared unlawful. At this point, it is necessary to clarify that the receipt by [Name01 033] of some funds originating from [Name 060] (the only fact that can be demonstrated without the statement of [Name01 064]) is not sufficient to confirm the judgment insofar as it considered him an instigator of the crime of aggravated corruption by improper bribery. Not only because without that evidence, it is impossible to ensure, beyond a degree of probability, that the promise of economic remuneration existed, but also because, likewise, other hypotheses that were not charged cannot be ruled out with certainty, namely, that the funds were a gratuity for a completed act without a prior promise, or that it was the public officials who induced their payment. Furthermore, for other reasons that will be set forth below, when examining each of the money deliveries that the trial court deemed accredited. Regarding the first delivery (as there were several more), proven fact number 96 states: “96) Without a specific date, but after January 6, 2002, and before February 18 of that same year, in accordance with the illicit distribution percentages established by the defendant [Name01 033], the accused [Name01 064] delivered to [Name02 033] at the Presidential Office the sum of one hundred thirty thousand dollars ($130,000), by means of 7 bearer deposit certificates from Banco Internacional de Costa Rica S.A., namely No. 19692 for an amount of one hundred thousand dollars ($100,000), No. 19693 for an amount of five thousand dollars ($5,000), No. 19694 for an amount of five thousand dollars ($5,000), No. 19695 for an amount of five thousand dollars ($5,000), No. 19696 for an amount of ($5,000), No. 19698 for an amount of five thousand dollars ($5,000), and No. 19699 for an amount of five thousand dollars ($5,000). The foregoing instruments were generated from the account of [Name02 166] - mother of [Name01 064] - and issued on December 14, 2001, maturing on February 14, 2002...”. As can be observed, the certificates that [Name01 064] delivered were generated from his mother's account, [Name01 166], and not from his wife's account, [Name01 080], which was the one supplied with the funds from [Name01 060]. Although [Name01 064] explained the foregoing during the trial, pointing out that the funds coming from [Name01 060] were blocked or frozen and that is why he resorted to his mother's account to pay [Name01 033] (f. 16,165 front), by suppressing his statement it is impossible to determine with certainty both the reason for that first delivery, [Name02] and the link of the funds with [Name02 060]. It is important to note that although there is documentary evidence that allows demonstrating that the two hundred twenty-five thousand dollars ($225,000) that [Name 058] transferred on December 10, 2001, to the dollar account held by [Name01 064]'s wife at Saint Georges Bank were frozen (cf. evidence No. 208, folio 28, which we have reviewed), this does not delegitimize what was stated above, since that documentation does not even allow suspecting that the $130,000 that [Name01 064] delivered to [Name01 033] between January and February 2002, have any relation to the already mentioned $225,000, or at least, to [Name01 060]. For this, it must be insisted, the statement of the cooperating defendant is indispensable. Regarding the second delivery of funds, the demonstrated facts stated: “98) On May 20, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with the money previously deposited by [Name 060], the accused [Name01 028], in accordance with the task assigned to him within the distribution of functions among the corruptors, partially cancelled the sight investment No. 21200289108 for the sum of one hundred thousand dollars ($100,000) and constituted four investment certificates for twenty-five thousand dollars ($25,000) each, all bearer and issued on May 20, 2002, numbers [Identification01], [Identification02], [Identification03], [Identification04] and the respective interest coupons for $64.58 each. These certificates, the defendant [Name01 028] delivered to the co-accused [Name 041] so that he, in turn, would deliver them to [Name01 064] also as part of the promised illicit payment. 99) To achieve this end, without a specific date, but after May 20, 2002, [Name01 064] went to the front of the offices of the company [Name01 091] in Sabana Sur, and received from [Name01 041] a yellow manila envelope which contained the described certificates, and with them carried out the following financial movements: a. With the proceeds of certificates No. [Identification03] and No. [Identification04] including the accumulated interest from certificates No. [Identification01] and No. [Identification02], a cashier's check from Banco Cuscatlán No. 12847-3 dated June 26, 2002, was acquired for fifty thousand two hundred fifty-three dollars and thirty-two cents ($50,253.32), which was deposited into account [Name 080] at Banco BCT S.A. on the 27th of that month and year. b. The proceeds of certificates No. [Identification01] and No. [Identification02] were reinvested by order of [Name 080], according to the plans of [Name 064], in the investment certificate from Banco Cuscatlán No. [Identification05] issued on June 26, 2002, to bearer, for the sum of fifty thousand dollars ($50,000). 100) On an undetermined date, but after June 26, 2002, in accordance with the distribution of the money agreed upon among them, [Name01 064] delivered certificate No. [Identification05] for fifty thousand dollars ($50,000) to the accused [Name01 033], who received it at his residence. Before July 30 of that year, [Name01 033], in turn, delivered the referenced certificate to Mr. [Name01 167] (who since 1994 worked as the administrator of companies linked to the accused [Name01 033]), and ordered him to make some payments. a) He cancelled certificate No. [Identification05] and requested Banco Cuscatlán de Costa Rica S.A., to issue three cashier's checks drawn up on July 30, 2002, No. 14589-1 for fourteen thousand seven hundred fifty dollars ($14,750), No. 14590-1 for five thousand two hundred dollars ($5,200) and No. 14591-6 for seven thousand dollars ($7,000), in the name of [Name01 291]; and withdrew the sum of twenty-three thousand thirty-five dollars ($23,035) in cash. b) On July 31, 2002, with cashier's check No. 14589-1, he paid the then-outstanding debt of the credit card in the name of the defendant [Name01 033] No. 4732981669923003 from Banco Interfin, for an amount of five thousand one hundred forty dollars and eight cents ($5,140.08). c) On July 31, 2002, with cashier's check No. 14590-1, [Name01 167] paid the balance in colones of three hundred twenty-five thousand eight hundred four colones and fifteen cents (¢325,804.15) and in dollars of four thousand three hundred dollars and fifty-six cents ($4,300.56), both from the credit card of the defendant [Name01 033] No. [Value 014] from Banco Internacional de Costa Rica. d) With cashier's check No. 14591-6 for seven thousand dollars ($7,000) in the name of [Name01 291], who has been the driver of the defendant [Name01 033] since March 1992, in compliance with the instructions of [Name01 033], payroll, electricity, water, telephone, taxes, among other obligations of the family of [Name01 033] were paid...”. As the a quo explained from folios 16,170 to 16,186 front, there is documentary evidence that allows demonstrating that [Name 080], wife of [Name01 064], endorsed four investment certificates for $25,000 each, all bearer, constituted with funds from the account of [Name02 058], previously supplied with money originating from [Name01 060]. Likewise, that the proceeds of two of those certificates were reinvested into investment certificate No. [Identification05] of Banco Cuscatlán, also bearer, for the sum of $50,000, which was endorsed by [Name02 167], a person close to [Name01 033] and who used part of the money to pay two credit cards in the name of [Name01 033] and expenses of his residence. Now, although we can reasonably hold that [Name01 033], through intermediaries - [Name01 058], [Name 080] and later [Name 167] - incorporated funds proceeding from [Name01 060] into his assets, without the declaration of [Name01 064] it is impossible to ensure that those sums correspond to the payment or fulfillment of a promise of a bribe that [Name01 064] received with specific content and purposes and that [Name01 033] determined him to accept. This same situation occurs with the third delivery of funds, examined from folio 16,186 front onwards and described in proven facts numbers 101 to 104: “101) Without a specific date, but in the month of August 2002, the defendant [Name01 041] announced a third payment of the promised bribe to [Name01 064]. With the purpose of not raising suspicions in the national financial system, [Name01 064] asked him to make the deposit into two accounts, No. [Value 015] at Terrabank and No. [Value 016] at BCT International Bank (offshore of Banco BCT), in the name of [Name 080]. 102) On August 14, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with the money previously deposited by [Name01 091], the accused [Name02 028], in accordance with the task assigned to him within the distribution of functions among the corruptors, requested the Personal Banking Department of Banco Cuscatlán to transfer the sum of one hundred thousand dollars ($100,000) to account No. [Value 015] at Terrabank, and the sum of five hundred ninety thousand dollars ($590,000) into account [Value 055] at BCT Bank International to later transfer it to account No. [Value 016] of [Name01 080]. These funds were formally credited on August 16, 2002, after applying the respective bank commissions. 103) On August 19, 2002, [Name02 064] with the five hundred ninety thousand dollars ($590,000) mentioned in the previous fact, arranged for the issuance of investment certificate No. 25694 for a 92-day term at BCT Bank International for the sum of three hundred thousand dollars ($300,000), which was liquidated early on October 28 of the current year and both the principal and the interest were credited again to account No. [Value 016]. On that same date, [Name01 064] requested the issuance of three investment certificates, all bearer, two for one hundred thousand dollars ($100,000) and one for seventy thousand dollars ($70,000), numbers 4523, 4522 and 4521 respectively and with a maturity date of January 28, 2003. 104) Without a specific date, but after October 28 and before November 27, 2002, in accordance with the plan and distribution of the bribe established by the defendant [Name01 033], he personally received from the accused [Name01 064] the investment certificates No. 4521, No. 4522 and No. 4523 of Banco BCT S.A., and one hundred thousand dollars ($100,000) in cash. The accused [Name01 033] disposed of this money as set forth below: a) He delivered certificate 4521 for its sale to ACOBO S.A. together with the respective interest coupon on November 4, 2002. The following day, ACOBO registered the sale of said security for a total of seventy thousand forty-five dollars and thirty-five cents ($70,045.35), an amount that it credited to account No. [Value 017] of the wife of the defendant [Name01 033], [Name01 169]. That same day, 20 participations of the “[Name01 171]” were acquired for the amount of one hundred one thousand seventy-eight dollars and seventy-eight cents ($101,078.78), which were partially covered with the indicated funds. Subsequently, on November 12, 2002, the management of the sale of the 20 cited participations to the company [Name 172] was carried out, in whose account Messrs. [Name01 173] and [Name01 167], collaborators of the defendant [Name01 033], appear as authorized persons. Despite the fact that the judicial and extrajudicial representative of said corporation is Mr. [Name01 175], son of [Name01 033], the reality is that the latter maintains a real and direct link with its management. b) Between mid and late November 2002, the defendant [Name01 033] delivered certificates No. 4522 and No. 4523 to [Name01 173], a trusted man, whom he instructed to deposit them at ACOBO along with the respective interest coupons, with the purpose that the brokerage house would negotiate them to make them effective. Subsequently, the sale amount was credited to account No. [Value 019] of [Name01 176] which, although formally represented by [Name01 173] and [Name01 167], the defendant [Name01 033] at that time maintained a real and direct link despite not appearing legally as its president or legal representative. c) Finally, as a product of the liquidation of the certificates mentioned in the previous point, on December 2, 2002, check No. 5118-1 was drawn against checking account [Value 020] of ACOBO with Banco Interfin, for one hundred ninety-nine thousand seven hundred ninety dollars ($199,790), in favor of [Name01 173], who on that same date deposited it into his checking account No. [Value 021] at Banco San José, which at that time showed a balance of $248.75. d) In November 2002, [Name01 173] proposed to [Name01 033] the possibility of participating as a capitalist partner of Mr. [Name01 177] in a housing project for upper-middle class that consisted of eighteen houses and six apartments, since the latter did not have enough money. [Name01 033] agreed to invest in the project, entrusting [Name01 173] to make the investment effective with the proceeds of the aforementioned check No. 5118-1 from Banco Interfin. In this way, [Name01 173] issued funds starting in December 2002 and until July 2003 in favor of [Name01 177] or in favor of the company [Name 180], a corporation represented by [Name01 177]. To conceal the participation of [Name01 033], the investment was made through a company owned by [Name01 173] called [Name 182], represented by [Name01 187], who was the secretary of [Name01 167] and a trusted person of [Name01 173]; in turn, the latter made a personal contribution to the project of fifteen thousand dollars ($15,000). To formalize the business, the following contracts were concluded: i) Purchase option agreement between [Name 183] representing the company [Name 184], owner of the real estate registered in the Party of Heredia, real folio registration No. [Value 022] and [Name01 177], the total value of the sale being the sum of one hundred fifty-two thousand eight hundred twenty-five dollars and sixty-eight cents ($152,825.68). ii) Contract dated December 4, 2002, between the corporation [Name01 180] represented by [Name01 177] and [Name 182] represented by [Name01 187], by which it was stated that [Name01 182] was interested in participating in the housing project of the corporation [Name02 180], contributing the sum of one hundred fifty thousand dollars ($150,000) and, due to the initial investment risk by [Name01 182], the acquired lots would be registered in its name. Likewise, it was stipulated that [Name 182] would receive seventy-five thousand dollars ($75,000) in profits and the rest would go to the company [Name 180]. Subsequently, approximately three months later it was increased by fifty thousand dollars ($50,000), leaving the total contribution of [Name01 182] at two hundred thousand dollars ($200,000). iii) Subsequently, another contract was made between [Name01 177] and [Name01 187] in her capacity as legal representative of [Name01 182], through which the former assigned to the latter the initial purchase option agreement with the company Servicios Casablanca, which operated automatically. iv) Likewise, on December 4, 2002, by public deed before notary public Alex Thompson Chacón, Ms. [Name01 183] as president with powers of generalísima legal representative of [Name01 184] transferred to the corporation [Name01 182], represented in that act by Ms. [Name01 187], the following properties all registered in the Party of Heredia: real folio No. [Value 023] with an area of 160.4 square meters; real folio No. [Value 024] with an area of 160.4 square meters; real folio No. [Value 025] with an area of 160.4 square meters; real folio No. [Value 026] with an area of 277.13 square meters; real folio No. 146.397-000, with an area of 166.50 square meters; real folio No. [Value 027] with an area of 180.77 square meters; real folio No. [Value 028] with an area of 160 square meters; real folio No. [Value 029] with an area of 160 square meters; real folio No. [Value 030] area of 160 square meters. The total price of the properties was set at the sum of eighty-six thousand seven hundred sixty-two dollars and forty-two cents ($86,762.42), also constituting a first-degree mortgage for the cited value over the referenced properties. v) The recovery from the sale of the properties began in March 2003 and entered into accounts No. [Value 031] in the name of [Name 182], No. [Value 032], No. [Value 033] and No. [Value 021] all in the name of [Name01 173] at Bac San José. After several financial movements, of the money that entered the account of [Name01 182], finally part of this money was received by the defendant [Name01 033], upon recording, between September 8, 2003, and June 4, 2004, credits in his favor for a total of fifty-two thousand two hundred twenty dollars ($52,220). Likewise, into checking account No. [Value 031] of [Name 182], Mr. [Name02 173] was credited a total sum of eighty-one thousand two hundred fifty ($81,250), and Mr. [Name01 167] was credited the sum of seventy-nine thousand three hundred fifty dollars ($79,350) ...”. In the case of this delivery, we have that after a series of transactions that are not of interest to recapitulate, based on the resources from the account of [Name 080] at BCT Bank International, investment certificates No. 4523, 4522 and 4521 were issued, all bearer, the first two for $100,000 and the last for $70,000, which after several transformations, ended up in the possession of legal entities linked in one way or another to [Name01 033]. For the undersigned, although there is no doubt about the foregoing, as the trail followed by the money was meticulously reconstructed (cf. folios 16,186 to 16,221 front, volume XXXIII), this says nothing regarding the reasons by virtue of which [Name01 033] received those funds, as this aspect can only be established through the account of [Name01 064]. Furthermore, in this delivery, there is also mention of $100,000 that according to the cooperating defendant were delivered in cash and regarding which there is no evidence whatsoever beyond his own words, as recognized by the same court at folio 16,220 front. In the case of the fourth delivery that has been deemed proven, and which is examined from f. 16,221 to 16,231 front, there is mention of a check for $81,480 drawn to [Name01 189], a company with which [Name01 033] had a direct link. The a quo states in the demonstrated facts: “105) On December 10, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with the money previously deposited by [Name01 091], the accused [Name02 028], in accordance with the task assigned to him within the distribution of functions among the corruptors, delivered to [Name01 064] the sum of one hundred eighty thousand dollars ($180,000), by means of a transfer to account No. [Value 016] of [Name 080] at BCT Bank International, less the deduction of the bank commission of $9.50. 106) With the resources just indicated, [Name01 064] made an investment for a 31-day term maturing on January 10, 2003, for the sum of two hundred thousand dollars ($200,000). At the end of the term, the money re-entered his account and [Name01 064], in accordance with the prior orders given by the co-defendant [Name01 033], issued the directive to issue cashier's check No. 012342 from BCT Bank International for the sum of eighty-one thousand four hundred eighty dollars ($81,480) in favor of the company [Name 189], with which he maintained a real and direct link. 107) Without a specific date, but after January 23, 2003, [Name01 064] delivered the check to the accused [Name01 033] at the house of the latter's in-laws. Then on February 3, 2003, [Name01 033] deposited that cashier's check No. 012342 at Riggs Bank N.A of Washington D. C., which was applied to account No. [Value 034] of the Company [Name 189] directly linked to the defendant [Name01 033]. The accused [Name01 033] subsequently admitted having received the amount of this check and two others - which will be described later - allegedly as a loan granted by [Name01 064], to whom he made a payment arrangement but it was rejected by [Name01 064] due to the non-existence of such credit, since the amounts came from funds of [Name01 091]...”. Without the declaration of [Name02 064], besides being impossible to determine with certainty the cause of this transfer of funds, it is also impossible to rule out the defense's theory, in the sense that these were part of a loan that [Name01 064] made to the then [...]. The fifth and last delivery, described in proven fact number 111) and examined from folios 16,232 to 16,241 front, is for approximately $188,000, delivered in the following manner: two checks (one for $30,000 and another for $28,083) and $131,000 in cash. The a quo states: “111) Approximately in the month of September 2003, in compliance with the agreed plan and distribution, [Name01 064] delivered one hundred thirty-one thousand dollars ($131,000) in cash to the accused [Name01 033] at the house of his mother-in-law. Likewise, following the instructions given by [Name01 033], he prepared two checks in favor of [Name01 169], which were drawn at the same time but were assigned different dates, different sequences and for two different amounts, with the purpose of avoiding suspicions within the financial system. In this way, [Name01 064] drew check number 419 dated September 9, 2003, for an amount of thirty thousand dollars ($30,000.00) and No. 425 for an amount of twenty-eight thousand eighty-three dollars ($28,083.00) dated September 25, 2003, both against checking account number [Value 056] of [Name 080] at Saint George Bank, in favor of [Name01 169]. The defendant [Name 033], after endorsement by [Name01 169], deposited the checks into the ACOBO account. Subsequently, the proceeds were registered by that brokerage house as a credit to the investment account No. [Value 017] in the name of [Name01 169] and used in the purchase of 11 participations in a real estate fund for a total of fifty-five thousand nine hundred sixteen dollars and eighty-nine cents ($55,916.89) and for the remainder, a check was issued for two thousand one hundred fifty-two dollars and eighty-three cents ($2,152.83) in favor of Banco Interfin S.A. Subsequently, the accused [Name01 033] admitted having received the amount of these two checks and another - already indicated - allegedly as a loan granted by [Name01 064], to whom he made a payment arrangement which was rejected by [Name01 064] due to the non-existence of such credit, since such amounts came from funds of [Name01 091] ...”. As has been indicated, a transfer of sums in cash has been deemed demonstrated whose only evidentiary support is the declaration - unlawful and implausible - of the cooperating defendant, [Name02] as well as a transfer of funds (the mentioned checks) regarding which, although there is documentary evidence, their raison d'être is unknown, as it is impossible to establish with certainty, a matter that is essential if it is intended to convict [Name01 033] for having instigated [Name01 064] to accept a promise of economic remuneration with specific content and purposes. In summary, the declaration of [Name01 064] is of an essential character in the case of [Name01 033]. Without it, it is not possible to deem it demonstrated that [Name01 064] received a promise of economic remuneration about which he informed [Name01 033], with the latter giving him the necessary impetus to accept it, also defining the distribution percentages of the criminal profit that would be obtained (and that, furthermore, it should be added, do not correspond to what was actually received by one and the other). For all of the foregoing, the judgment must be annulled insofar as it declared [Name01 033] an instigator of a crime of aggravated corruption by improper bribery committed by [Name01 064]. That said, the question that must be asked is whether the demonstrated facts that remain unscathed after suppressing the promise of a bribe prior to the award of the 400,000 lines - and which is sustained, in turn, by illegal evidence -, can be subsumed under any criminal type. The answer to this question is no. Although in effect, and except for the transfers of funds in cash, it is accredited that [Name01 064] transferred funds to [Name01 033] on various occasions, whether directly or through individuals or legal entities close to him, the characteristic elements of crimes other than aggravated corruption by improper bribery were neither charged nor deemed proven, a topic that acquires major importance in the case of [Name01 033], since the only conduct attributed to him is having determined [Name01 064] so that he, as the perpetrator, would admit a promise of economic remuneration in relation to the matter of the 400,000 lines, in exchange for carrying out specific actions in three areas (migration to GSM technology, tenders or public competitions, and a favorable vote for [Name01 091]). Therefore, only by violating the principle of correlation between accusation and judgment and including circumstances not foreseen by the requesting body at the time, could [Name01 033] be considered the perpetrator of another crime, even a residual one such as illicit enrichment. On the other hand, as explained when examining the legal situation of the defendant [Name01 001], the criminal type of illicit enrichment foresees both the admission of gifts presented and the admission of gifts offered. In the first case, the presentation and material reception of the remuneration must occur during the performance of the position. In the second, both the offer and the admission must occur in the aforementioned period, it being irrelevant, as it is a subsequent unpunishable act, that the public official obtains the patrimonial advantage once he leaves the post that motivated its offer. In this matter, the typical conduct to consider is the first, namely, the admission of gifts presented, this being because it has not been possible to deem proven either the promise of economic remuneration made to [Name01 064] before the award (and which constituted the basis for the crime of aggravated corruption by improper bribery), or any other offer of undue advantage to [Name01 033] (which, in any case, was not charged). Having clarified this point, it is found that the conducts of [Name01 033] that are described in the demonstrated facts, which remain intact after the exercise of hypothetical suppression (and which consist of receiving the economic advantages that were delivered to him by [Name01 064]), cannot be subsumed under numeral 346 subsection 3) C.P. applicable in this matter, since with the exception of the seven certificates described in proven fact number 96, those receipts occurred after the defendant ceased to be president of the country (cf. demonstrated fact number 61 in relation to those already transcribed), thereby making these atypical actions.

Now, regarding the seven bearer certificates of deposit from Banco Internacional de Costa Rica S.A., although these were admitted during the exercise of the position, as provided for by the criminal statute, following the hypothetical exclusion of the testimony of [Nombre01 064], it is impossible to be certain that these were given to him in consideration of his office. The person who delivered the certificates was [Nombre01 064], who at the time, besides being a high-ranking public official, was someone very close to [Nombre01 033]. Furthermore, the certificates were generated from the account of the collaborator's mother, Mrs. [Nombre01 166], an account that had no link whatsoever with [Nombre01 060]. Having said that, and at least with respect to these certificates, there are no elements to establish that [Nombre01 064] gave them to [Nombre01 033] because he was the [...]. Nombre71 correctly points out when Nombre66 analyzes the offense of acceptance of gifts in Argentine legislation, which is also partly similar to ours, that it is essential to demonstrate that the gift was given in consideration of the recipient's office, which Nombre05 rules out that it is not linked to a different circumstance, such as friendship or another relationship outside of that office (Nombre66, op. cit., pp. 280-281), which is impossible in this matter, for the reasons already stated. Finally, as if what has already been said were not enough, the criminal action to prosecute the crime of illicit enrichment would be time-barred. In this regard, note that [Nombre01 033] was questioned on October 15, 2004 (f. 552 to 558 front, volume II). The statute of limitations for the crime of illicit enrichment was 18 months (this is because at that time the procedure was ordinary), meaning that this period expired on April 15, 2006, a date by which no other cause for the interruption of the time computation had occurred, nor had the resolution declaring the case to be of complex processing become final (the latter occurred on June 23, 2006). That is, before the process changed its nature, a legal situation was consolidated in favor of [Nombre01 033] which, as the Third Chamber itself admitted when ordering the remand, prevents the application of the effects of the last paragraph of Article 376 of the Code of Criminal Procedure. In that sense, and assuming the risk of being repetitive (as the issue was addressed when examining the cases of co-defendants [Nombre01 001] and [Nombre01 022]), the cassation court stated: "Thus, it is clear that the validity of the reducing effect on the statutory limitation period as a result of the ordinary processing of the file, Nombre11 was subject to the case continuing to be processed as ordinary; in contrast, when the complex processing was ordered and became final, in the early stages of the process, the reducing condition of the statutory limitation periods varied, pursuant to the aforementioned numeral 376, given that the only exception to that reasoning would have occurred in the event that the fatal statutory limitation period had expired before that order, since in that case the extinction of the criminal action due to the statute of limitations would have taken place, as this circumstance is considered a consolidated legal situation, to which the effects of the aforementioned Article 376 could not have been applied..." (Resolution Nº 1847-2014, Considerando IV, f. 176.427 back, volume XLIII, the underlining is not from the original). In summary, it is determined that, even following the interpretation made by the Third Chamber on Article 376 of the Code of Criminal Procedure, in the sense that the finality of the resolution declaring the procedure complex suppressed the reducing effect on the statute of limitations periods that took place before that finality, the truth is that at the date of that declaration, a consolidated legal situation already existed in favor of [Nombre01 033] that cannot be ignored, as the term of the statute of limitations had expired. Similarly, the entry into force of Article 62 of Law N° 8422, called the Law against corruption and illicit enrichment in public office, does not modify this conclusion, since [Nombre01 033] appeared to give his investigative statement on October 15, 2004, that is, before the aforementioned regulation was published (on October 29, 2004). As explained supra, the same cassation court, in resolution N° 2014-1847, specifically in Considerando IV.-, folios 176.429 to 176.431 front, acknowledged that it is not possible to give retroactive effects to a later procedural law, not only because in the case of procedural laws, the one in force at the time of performing the act must be applied, but also because the Political Constitution in its Article 34 contemplates a general prohibition against applying laws retroactively to the detriment of any person. The Public Prosecutor's Office affirms that if the statute of limitations had not expired when the aforementioned law came into force, it is plausible to apply its effects to procedural acts performed previously, since "...the interrupting acts that occurred previously were not retroactively nullified, as the accused [Nombre01 033] erroneously interprets - rather, the reduction of the outstanding balances was nullified, which were extended from that moment and for the full term, according to the abstract penalty of each crime..." (F. 176.933 front, volume XLIV). We, the undersigned, respect but do not share these arguments. One can state it in different ways and deny that Article 34 of the Political Constitution is being violated; however, what is ultimately sought is that the effects of Article 62, in force as of October 29, 2004, affect a procedural act that interrupted and reduced the statute of limitations period that took place before that date, namely, on October 15, 2004, stripping all value from the regulation under which that act was produced (namely, the first paragraph of Article 33 of the C.P.P.). For greater abundance, note that it cannot be extracted from Law N° 8422 that the legislator had contemplated applying the rules on the statute of limitations contained in numeral 62 in a manner different from what corresponds in the case of any instrumental norm (that is, from its entry into force and prospectively). Finally, it is important to note that in resolution N° 1847-2004 cited by the Public Prosecutor's Office as the basis for its position (f. 176.934 front, second paragraph), the Third Chamber adopted the thesis contrary to that which this procedural party sets forth, namely, that Law N° 8422 is applicable to procedural acts performed as of October 29, 2004, which is why only in relation to the defendants who were questioned after that date ([Nombre01 018] and [Nombre01 006]) did it argue that, once the interruption had occurred, the statute of limitations period ran in full under the terms indicated in subsection a) of Article 62 of the aforementioned law. In summary, and given that after the hypothetical exclusion process that has been carried out, the remaining evidence does not allow it to be proven that [Nombre01 033] acted as an instigator in the crime of aggravated corruption in its modality of improper bribery committed by [Nombre02 064], and having ruled out the application of other residual criminal statutes to the proven facts that remain unchanged after said exclusion, the judgment is annulled insofar as it declared [Nombre01 033] instigator of a crime of aggravated corruption for improper bribery committed by [Nombre01 064] and, in application of the principle in dubio pro reo and for procedural economy, he is acquitted of all penalty and responsibility for that criminal activity. As unnecessary, a ruling on the other claims made by him in a personal capacity is omitted, Nombre02 as well as on the appeals filed by his defender, attorney Rafael Gairaud Salazar.

• 6)[Nombre02 041] and [Nombre02 028]: The court found it proven that [Nombre01 041] and [Nombre01 028] committed three crimes of the penalty of the corrupter in relation to the crimes of aggravated corruption by improper bribery attributed to [Nombre01 022], [Nombre01 001], and [Nombre01 064]. Additionally, [Nombre01 041] was attributed with one crime of the penalty of the corrupter in relation to the crime of aggravated corruption by improper bribery committed by [Nombre01 068]. For the sake of order, the crimes understood to have been committed by both defendants will be analyzed first, and then the one attributed solely to [Nombre01 041]. 6.a) Crimes of the penalty of the corrupter in relation to [Nombre 001], [Nombre01 022], and [Nombre 064]: It was found proven that in December 2000, [Nombre01 078] and [Nombre 041] promised [Nombre 064] a gift in exchange for him taking the necessary actions as director of the I.C.E., to promote the migration from TDMA to GSM technology, prevent the bidding process for the 400,000 lines from being aborted, and finally, vote in favor of awarding said tender to the company [Nombre 091] (proven fact number 87.-, folio 15.438 front, volume XXXII). In the case of [Nombre 022], it was found accredited that between the end of 2000 and the beginning of 2001, the defendants [Nombre01 041] and [Nombre01 078] asked him to take the necessary actions within the scope of his duties as a Director of the I.C.E. in support of the interests of [Nombre02 091], primarily, to promote the migration from TDMA technology to GSM technology, promote purchases through tenders and prevent them from being aborted, and once the contracting process for the 400,000 lines was authorized, they asked him to vote in favor of awarding that tender to the company [Nombre 091], and that in exchange for all the above, they promised him the delivery of a gift, a promise that was accepted by [Nombre01 022] (fact number 117, f. 15.451 front). Regarding [Nombre01 001], the a quo found it proven that in the period between the end of 2000 and the beginning of 2001, the accused [Nombre01 041] and [Nombre01 078] asked him to take the necessary actions within the scope of his duties as advisor to the Executive Presidency of the I.C.E. and manager of the execution of the 400,000 lines project, to make said contracting effective, favoring [Nombre01 091], and that in exchange for the above, they promised him the delivery of a gift, a promise that was accepted by the public official. Likewise, it was agreed that the delivery of the money would be conditional upon the effective award of the offer that [Nombre01 091] would present to the I.C.E. (fact N° 131, f. 15.455 front). Regarding [Nombre01 028], in the judgment on the merits, he was considered a co-perpetrator of the aforementioned facts, understanding that in the division of tasks agreed upon with [Nombre01 041] for the commission of the crimes, he had the task of receiving the funds from [Nombre01 060] and transferring them to the corrupt public officials (proven fact number 56, f. 15.431 front). This chamber will not reiterate the arguments indicated by the a quo to find it proven that [Nombre01 041], in collusion with other persons, made a promise of economic retribution to [Nombre02 001], [Nombre01 022], and [Nombre01 064] prior to the award of the 400,000 lines contract, nor the reasoning that leads these appellate judges to conclude that the accreditation of that fact is unsustainable, since an extensive exposition on this has been made previously and to which the parties must refer. It suffices to underline as a starting point that, with the hypothetical exclusion of the statement of [Nombre02 064], it is impossible to affirm that point with certainty. While it can be assured that [Nombre01 041] and [Nombre01 028], through [Nombre01 058]., delivered significant sums of money to the aforementioned persons, it can only be maintained with a degree of probability (insufficient to ground a conviction) that these sums were intended to fulfill a prior promise, to the point that other equally plausible hypotheses cannot be ruled out, for example, that they were retributions for a completed act (without a prior promise, logically), or that it was the public officials who requested their payment. Now, ruling out the promise of economic retribution not only prevents the application of the criminal statute of aggravated corruption by improper bribery in the case of the three mentioned public officials, but also prevents the application of the penalty of the corrupter contemplated in Article 345 of the Penal Code in force at the time the investigated events occurred. This numeral stated: "The penalties established in the five previous articles are applicable to whoever gives or allows a public official a gift or undue advantage." As can be extracted from its mere reading, it is a blank criminal norm, which refers to other articles of the same Penal Code to establish a subjective element additional to the intent, which must characterize the performance of the prohibited conduct, Nombre02 as well as the penalty to be imposed. The numeral prohibits giving or allowing a gift or undue advantage to a public official with any of the purposes indicated in the five articles that precede it. That is, regardless of the decision adopted by the public official in response to the corrupter's proposal, to penalize the latter it is essential that his conduct be aimed at seeking certain purposes that have been contemplated by the legislator in the provisions prior to the aforementioned numeral 345. The complementary criminal statute, Nombre02 as well as the sanction to be imposed, then depend on the purpose for which the gift is given or allowed. For example, if the corrupter gave it so that the public official would perform an act contrary to his duties, or to not do or to delay an act proper to his functions, the penalty he will receive will be that of active bribery, which ranges between two and six years of imprisonment and disqualification from holding public office and employment for ten to fifteen years. If the corrupter gave it for an act performed or omitted by the public official in that capacity, without a prior promise having mediated, the penalty to be imposed will be the one previously set forth reduced by one third, as Nombre02 provided by the norm that contemplates the crime of accepting gifts for a completed act. In the same way, if giving or allowing the economic retribution or undue advantage under the terms described in the crimes of active or improper bribery has as its purpose the granting of public positions, pensions, emoluments, or the conclusion of contracts in which the administration to which the official belongs is interested, the corrupter's penalty will range between 1 and 5 years if the facts are those described in improper bribery, and from 3 to 10 years in the case of active bribery. In summary, to sanction the corrupter it is essential to have demonstrated that he gave or allowed the gift with one of the purposes contemplated in the five articles prior to numeral 345 of the Penal Code, which in this case is not plausible for the reasons set forth in previous sections and which can be reduced, at the risk of incurring in an excessive simplification of things, to the fact that without the declaration of [Nombre01 064], from the analysis of the remaining evidence it is impossible to derive a judgment of certainty and not of probability, regarding the existence of the promise of a gift, its content, and the purposes it pursued. Once the illicit evidence has been hypothetically suppressed, it is not possible to assure that [Nombre01 041], in collusion with [Nombre01 028], promised (conduct that, with an extremely questionable interpretation but endorsed by the Third Chamber, the a quo considered encompassed by the verb "to give") an economic advantage to various public officials, so that they would carry out acts proper to their functions with the purpose of [Nombre01 091] being favored with the 400,000 lines contract, a purpose that is precisely the one contemplated in the crime of aggravated corruption, which is one of the five articles that precede that of the penalty of the corrupter and which, in turn, expressly refers to the crime of improper bribery, in what is relevant here. With the promise of retribution excluded, what remains unaltered is that [Nombre01 041], by common agreement with [Nombre 028], transferred money from [Nombre01 060] to [Nombre 001], [Nombre01 022], and [Nombre01 064]; however, this alone does not constitute any crime. In the first place, it is not the penalty of the corrupter because, as already explained, it is impossible to establish with certainty what the reason for the payments was. Even hypothetically admitting that the money delivered had some relationship with the mobile telephony field, or even with the 400,000 lines contract, from the examined evidence only a judgment of probability can be extracted that they were intended to fulfill a promise made before the award of that contract, in exchange for the public officials performing certain actions proper to their positions that favored [Nombre01 091], it being equally plausible to consider other hypotheses mentioned many times, for example, that the funds were delivered as a retribution for a completed act without a prior promise, or that it was the officials who requested or demanded their payment, hypotheses that, in any case, were not charged by the Public Prosecutor's Office. In sum, from the evidence that has been obtained and incorporated into the debate lawfully, it is impossible to find proven the promise of a gift that was imputed (that is, a promise in exchange for public officials performing future actions, proper to their positions, to favor [Nombre01 091] in obtaining the 400,000 lines contract) and, to that extent, the conviction imposed on [Nombre01 041] and [Nombre02 028] for the crime of the penalty of the corrupter for aggravated corruption by improper bribery is unsustainable. It should be added that this result would not vary even if the issue of the promise were set aside and emphasis were placed on the material delivery of the gifts, basically for two reasons, namely, i) because promising an economic retribution to certain public officials (and not delivering the gift to them after the award) is the only conduct that, in the context of the imputed and proven facts, can be subsumed under the crime of the penalty of the corrupter for aggravated corruption by improper bribery and, ii) because the penalty of the corrupter is atypical in the case of illicit enrichment. Both arguments will be elaborated upon below. Regarding the first, according to the legal text in force at the time the investigated facts occurred, in the crime of the penalty of the corrupter, the typical action consisted of giving or allowing gifts or undue advantages to a public official with the purposes described in the "five previous crimes," namely: i) corruption of judges; ii) offering or granting of a gift or retribution (repealed in 2008); iii) accepting gifts for a completed act; iv) aggravated corruption (the criminal statute that was applied by the trial court and whose typical description is integrated, by express provision of the legislator, with the criminal statutes of active and improper bribery, as appropriate); and finally, v) active bribery. As observed, whether one speaks of the promise of a gift (as the trial court did when considering that the verb "to promise" is encompassed by the verb "to give"), or of the material delivery of the retribution (now, in full consonance with the verb "to give" contemplated in art. 345 C.P.), the penalty of the corrupter demands that the prohibited conduct be directed by one of the purposes described in the aforementioned criminal statutes and, in this case, it was neither imputed nor found proven that the funds were delivered before the award to the public officials in exchange for them performing (future) acts proper to their functions that were favorable to [Nombre01 091] in the matter of the 400,000 lines (this is the purpose). What was indicated was that [Nombre01 041] and [Nombre01 028] gave the gift after the award, to fulfill a prior promise that pursued the already mentioned purposes. In other words, it is the promise of a gift and not the material delivery thereof that is the conduct that complements the crime of the penalty of the corrupter with the criminal statute of aggravated corruption and improper bribery, and, therefore, only in relation to this can the application of the numeral 345 cited supra be considered. In line with the above, if that promise of a gift contemplated in the accusation cannot be found proven, the crime cannot be understood as configured, despite the fact that a transfer of funds to some officials has been accredited. As for the second argument, it suffices to point out that the facts that remain unchanged after hypothetically suppressing the reference to the prior promise are atypical, even if one were to start from the premise that [Nombre01 041] and [Nombre01 028] presented the economic advantages to [Nombre02 064], [Nombre01 001], and [Nombre01 022] in consideration of their office and during the exercise of their position, since the penalty of the corrupter is only provided for in relation to the five articles preceding that crime, and illicit enrichment was not, at the date of the facts, nor is it now, part of that group. The issue is so clear that the legislator placed illicit enrichment after the crime of the penalty of the corrupter, meaning that the latter, by alluding to the "previous articles," does not include it. In summary, having ruled out, as it is impossible to prove without the illicit evidence, that [Nombre01 041], by common agreement with [Nombre01 028], issued promises of a gift to [Nombre02 064], to [Nombre02 022], and to [Nombre01 001] so that they would carry out acts proper to their functions, aimed at [Nombre01 091] obtaining the 400,000 lines contract, and given that, furthermore, after that hypothetical suppression exercise that has been carried out, the facts that remain unchanged regarding [Nombre01 041] and [Nombre01 028] (which in essence, reduce to the material delivery of certain sums to the public officials) do not satisfy the requirements of any criminal statute, the judgment is annulled insofar as it declared both defendants co-perpetrators responsible for three crimes of the penalty of the corrupter for aggravated corruption in the modality of improper bribery in material concurrence, in relation to [Nombre01 022], [Nombre01 001], and [Nombre01 064] and, in its place, for procedural economy and in application of the principle in dubio pro reo, they are acquitted of all penalty and responsibility for the aforementioned crimes. 6.b) Crime of the penalty of the corrupter attributed to [Nombre01 041] in relation to [Nombre 068]: The trial court also convicted [Nombre02 041] as the responsible perpetrator of a crime of the penalty of the corrupter for aggravated corruption in the modality of improper bribery, this one committed by [Nombre01 068]. Next, we will proceed to explain why, after the declaration of illegality of the criteria of opportunity granted to [Nombre01 064], it is impossible to find that crime proven. The first thing that must be mentioned is that, according to what the court stated in its majority vote, the promise of a gift to [Nombre01 068] was formulated by [Nombre01 105], in collusion with [Nombre01 046]. For the a quo, [Nombre01 041]'s relationship to this fact results from his status as a head of [Nombre01 091] in the country and from having acted with [Nombre01 105] (representative of [Nombre01 114].) in the same way he acted with [Nombre01 028] (representative of [Nombre01 058].), using those corporations to sign consulting contracts that did not correspond to reality, with the purpose of bringing in the economic resources of [Nombre01 060] that were later distributed among the public officials. From folios 15.767 and following of volume XXXII, the a quo concluded that a promise of a gift was issued to [Nombre01 068] (for which [Nombre01 041] must be held responsible), by virtue of the following: i) With evidence Nº 747 it is determined that [Nombre01 068] was prosecuted for the crime of aggravated corruption in the modality of improper bribery, availing himself of an abbreviated procedure through which he was convicted (sentence Nº 586-07 of 14:50 on October 16, 2007). The gift, according to what was stated in that resolution, was promised through [Nombre02 114]., whose representative, [Nombre01 105], also submitted to an abbreviated procedure (sentence Nº 260-09 of 14:15 on July 21, 2001). According to the court, these sentences have been considered "...in relation to those who submitted to such procedures and only with the type of crime for which they are convicted, the sanction, parties, and eventual reparations or other merely referential data, without in any case evaluating the proven facts and other content..." (F. 15.768 front). ii) The design of the criminal plan responded to several background factors, one of special importance, namely, that [Nombre01 091] was not considered by ICE in the matter of mobile telephony, which led [Nombre01 041] and [Nombre 078] to deem it necessary to channel money from [Nombre01 060] to provide gifts to public officials; iii) from the documentary evidence (namely, official letter Nº 813 of January 23, 2001, from the Contraloría General de la República and the minutes of sessions Nº 5271 and 5277 of the Board of Directors of ICE), it is extracted that on January 23, 2001, the Contraloría General de la República authorized the abbreviated competitive procedure for the contracting of the 400,000 GSM technology cellular lines. Despite this, the Board of Directors unanimously authorized direct contracting Nº 108792 to expand the GSM mobile network to [Nombre01 091], which satisfied its commercial interests and incidentally facilitated its foray into GSM technology. However, in the following session [Nombre01 068] requested that this decision be revoked, which did not succeed. This led [Nombre01 041] and [Nombre01 078] to glimpse the need to recruit this board member, as they did with [Nombre01 064], [Nombre01 191], and [Nombre02 001] (f. 15.768 and 15.769 front); iv) to promise the gift to [Nombre 068], [Nombre01 105] was used. The corporation [Nombre02 114]. belongs to him, which originally represented [Nombre 060] in the country. Once [Nombre01 091] was established, [Nombre01 114]. stayed within its facilities and offered them assistance in the technical area (f. 15.769 front); v) due to the good relationship that existed with [Nombre01 105] (and of which several witnesses testify), and given that [Nombre01 114]. was listed at that time as a consultant before [Nombre01 292], a company that in turn represented [Nombre02 060], simulated consulting contracts were signed to generate the funds from [Nombre01 060] that were later delivered to public officials (f. 15.770 to 15.772 front); vi) there is no direct evidence of the request from [Nombre01 105] to [Nombre01 046] to facilitate the meeting with [Nombre02 068]; however, [Nombre01 046] had a prior bond with [Nombre01 105] and had a relationship of trust with [Nombre01 068]. Likewise, [Nombre01 046] performed lobbying tasks to approach public officials and, before the events investigated, had done these tasks for [Nombre01 091]. He also acted as an intermediary in the payment of the gift made to [Nombre01 068], and additionally, [Nombre01 046] received a large sum from [Nombre01 114]. for approaching [Nombre01 105] and [Nombre02 068] and then transferred that gift to [Nombre01 068], which "...reflects his knowledge that it was the gift paid to [Nombre01 068] for his positive vote for [Nombre01 091] on the 400,000 cellular lines and because [Nombre01 068] and [Nombre01 105] were sentenced for convergent crimes." (F. 15.773 front). From this point, the judgment makes a more exhaustive examination of the outlined indicators to demonstrate the promise of a gift, specifically, the link between [Nombre01 046], [Nombre01 105], [Nombre01 114] ., [Nombre 060], and [Nombre01 091] Costa Rica (f. 15.773 to 15.775 front); the lobbying activities that [Nombre02 046] had previously carried out before public officials for the benefit of [Nombre01 091] (f. 15.775 to 15.777 front); the link between [Nombre01 068] and [Nombre01 046] (f. 15.777 to 15.781 front), a bond that also arose before the facts relevant here and is evidenced by the handling of the illicit proceeds and the meetings between [Nombre01 105] and [Nombre01 068] (f. 15.781 to 15.783 front), encounters that according to [Nombre01 193] took place on at least two occasions, in Coronado, the place where the company [Nombre 085]. is located, of which [Nombre01 068] is president and judicial and extrajudicial representative. Furthermore, the resolution points out, although there is no evidence that [Nombre01 046] was present at those meetings, it is clear that it was he who put [Nombre01 105] in contact with [Nombre01 068] (f. 15.781 to 15.783 front). The judgment also explains how [Nombre02 068], as a member of the board of directors of ICE, participated in the vote of August 28, 2001, where the award was decided (f. 15.783 to 15.784 front).

For the trial court, a promise of a gift was extended to [Nombre01 068] so that he would vote in favor of this award and, regarding the issue, it refers to what was stated in relation to the plan devised by [Nombre01 041] and [Nombre01 078], to propose consultancy contracts in favor of two companies that had carried out commercial activities with [Nombre01 060], one of them [Nombre01 114]., whose manager is [Nombre01 105]. Those contracts were simulated, the company became a creditor of [Nombre01 060], and then, with the resources received, the gift promised to [Nombre01 068] was paid. The trial court adds that while the funds were transferred to [Nombre01 022] and [Nombre01 064] through [Nombre02 058]. ([Nombre 028]), they were delivered to [Nombre 068] through [Nombre01 114]. ([Nombre 105]), there being a single purpose and a common root ([Nombre01 041] and [Nombre01 078]). Furthermore, the sums paid are similar. For the judges who signed the majority vote, the fact that [Nombre01 068] was a director of ICE and that [Nombre01 046] facilitated the meeting between him and [Nombre01 105] before the vote in which the 400,000 lines were awarded, allows the conclusion that the gift was offered at that time in exchange for his affirmative vote. And it is that [Nombre01 046] moves in this environment and knows the directors, and his approach to [Nombre01 064] also accounts for this, to ask for his help with the amounts that [Nombre01 091] owed him. In the same vein, the transfer of money via [Nombre01 060] - [Nombre01 114] - [Nombre01 046] - [Nombre01 068], demonstrates that the act executed by the latter was to receive a payment for an act proper to his functions and that, prior to this act, the promise of remuneration was made to him. Finally, it was affirmed that [Nombre01 046] was aware that the money offered and delivered through him to [Nombre01 068] was for having cast his vote in favor of the award of the 400,000 lines. In support of this conclusion, the court alludes to how atypical the contract for the 400,000 lines was, not only because of its amount, but because of the enormous demand that existed at the time. From the testimonial evidence (statements of [Nombre01 128], [Nombre01 195], and [Nombre01 095]), it is inferred that this was a momentous project in the history of ICE. This issue was known to [Nombre 046], not only because he moves in the telecommunications field, but also because of his relationship with [Nombre01 105]. Moreover, the issue was widely publicized. On this point, the court also highlights the statement of [Nombre02 064]. He indicated that at the meeting in [Nombre01 094], [Nombre 041] and [Nombre02 078] spoke to him about the importance for [Nombre01 091] that ICE migrate to open telephony schemes, that it use public tender as a method for technology acquisition, and that he vote in favor of the company; this also because, according to what [Nombre01 041] and [Nombre01 078] told him, on a recent date, [Nombre01 046] had told them that he could influence that decision in a way detrimental to the interests of [Nombre01 091], and had even announced that he would have the support of the Executive Branch, a statement that for the court demonstrates [Nombre01 046]'s knowledge of what [Nombre01 091]'s priorities were (migration and public tender), Nombre02 as well as of the procedure defined at the beginning of 2001 by the Contraloría General de la República. It was also considered that, due to the closeness between the two, [Nombre01 046] knew of [Nombre01 068]'s position at ICE. That closeness was also evidenced by the way the gift was received and disposed of (specifically, [Nombre01 068] asked [Nombre01 046] for a bank account to receive part of the payments). Lastly, the reference to the convictions handed down against [Nombre01 068] and [Nombre01 105] and the admissions of charges made by both regarding the facts was reiterated (pp. 15,785 to 15,789 front). vii) Likewise, the trial court examined the consultancy contracts signed by [Nombre02 114]. with [Nombre01 091], the money delivered to [Nombre01 068] via this route, Nombre02 as well as the profits obtained by [Nombre01 046] and [Nombre01 105] (pp. 15,789 to 15,828 front). Based on all the foregoing, it convicted [Nombre01 046] for the crime of penalty of the corruptor for aggravated corruption in its modality of improper bribery in relation to the acts attributed to [Nombre01 068] (p. 15,833 front and following). Now, regarding [Nombre01 041], what the appealed judgment stated is that this defendant acted in common agreement with [Nombre01 105] and [Nombre01 046] to manage to approach [Nombre01 068] and make the remunerative offer. Furthermore, that [Nombre01 041] was the common root between the distribution of gifts via [Nombre01 058]. and via [Nombre02 114]., such that he knew that the consultancy contracts signed by [Nombre01 105] were as simulated as those of [Nombre01 058]. and that this mechanism is what had been implemented to provide resources to the illicit arm that would allow paying money to [Nombre01 068], relying on the contribution of [Nombre01 046] regarding the indication of accounts and other data that had to be coordinated for each delivery (p. 15,726 front, volume XXXII). Having analyzed the foregoing reasoning, this Chamber considers that, after hypothetically excluding the “testimony” of [Nombre01 064], it is not possible to demonstrate with certainty that [Nombre02 041] was a co-perpetrator of a remunerative promise extended to [Nombre01 068] by [Nombre01 105]. As has been pointed out, this court does not question the situation of [Nombre01 091] in the mobile telephony field, the delivery to public officials of significant sums (in similar amounts, moreover) that was made after the contract for the 400,000 GSM lines was awarded, the relationship of trust between [Nombre01 046] and the top executives of [Nombre01 091], and even the mechanism by which the funds that would later be distributed among public officials entered (that is, consultancy contracts signed with [Nombre01 058] . and [Nombre01 114].). However, it is not possible to assert with certainty that the sums received by [Nombre01 068] were to fulfill a promise —prior to the award— extended to him by [Nombre01 105] in common agreement with [Nombre01 041]. Although it can be taken as true that this latter defendant distributed funds from [Nombre01 060] among various public officials, regarding the promise and the purposes pursued with it, the fundamental evidence is the statement of [Nombre01 064], to the point that if this is hypothetically excluded, it is not plausible to rule out other hypotheses, for example, that these were economic remunerations accepted for a completed act without there having been a prior promise, that the public officials themselves induced that payment, or that, while a promise existed, it had a different content. See also that it was [Nombre01 064] who, during the debate, spoke of the concern of [Nombre01 041] and [Nombre01 078] about what [Nombre02 046] had in turn expressed to them, in the sense that, regarding the granting of the contract for the 400,000 lines, he could influence and harm [Nombre01 091], a statement the trial court used to understand the interest of the corruptors in approaching the ICE directors before that contract was awarded. Even the role that the majority vote assigned to [Nombre01 046] in this scheme was established largely thanks to what was said by [Nombre01 064], since —according to him— [Nombre01 046] came to him to ask for help in collecting money from [Nombre01 091] that was owed to him for his services. The weight of the testimony of [Nombre02 064] is so clear that, in this section of the judgment, a parallel was drawn between his situation and that of [Nombre01 068], affirming that they are two of the directors who received money from [Nombre01 091] and who received promises of gifts, a conclusion reached because Nombre02 the former said so and because [Nombre01 068] was sentenced for it. However, if the statement of the cooperating defendant is hypothetically suppressed and bearing in mind that the convictions of [Nombre01 068] and [Nombre01 105] were handed down within the framework of an abbreviated procedure, where the admission of charges has a formal nature, the possibility of establishing the promise of a gift with certainty and, especially, of implicating [Nombre01 041] in that promise, vanishes. Again, this Chamber has no doubt that [Nombre01 041] paid a series of public officials using two corporations ([Nombre01 114]. and [Nombre 058].). One can even suspect that those payments bore some relation to the incursion of [Nombre02 091] into the mobile telephony market; however, it is not possible to assert that those payments were made to fulfill promises of gifts formulated before the award of the contract for the 400,000 lines, in exchange for this being granted to [Nombre01 091], especially when it is also possible to consider other alternatives, e.g., that they were economic remunerations given for completed acts, without a prior promise (as [Nombre01 064] had said), or that it was the public officials who demanded the payment, as indicated at some point by [Nombre02 041] himself (cf. in this regard, statement of [Nombre01 116], analyzed in previous sections). To that extent, and in application of the principle in dubio pro reo, the judgment is annulled insofar as it convicted [Nombre01 041] for a crime of penalty of the corruptor for aggravated corruption in its modality of improper bribery, in relation to the acts attributed to [Nombre01 068], and in its place, he is acquitted of all penalty and responsibility for the cited crime. By reason of the foregoing in this recital and because it is unnecessary, a ruling is omitted regarding the other claims contained in the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, Nombre02 as well as those raised by attorney Mario Navarro Quirós, private defense counsel for [Nombre02 028], with the exception of the third ground he called “Erroneous and inadequate reasoning. Violation of due process and the right to defense due to erroneous application of Article 110 of the Penal Code,” since this, being related to the seizure of certain assets belonging to legal entities linked to [Nombre01 028], requires a more in-depth analysis. Regarding that ground, this office will rule later.

VII.- Cassation appeal filed by attorney Wilson Flores Fallas and appeal against the judgment filed by attorney Nazira Merayo Arias, defense counsel for [Nombre 006]. In a brief visible in volume XXXVI, from pages 17,102 to 17,149 front, attorney Wilson Flores Fallas, public defender of [Nombre01 006], filed a cassation appeal against judgment No. 167-2011 cited above, which was reiterated by attorney Nazira Merayo Arias when filing the appeal against the judgment. In fact, in volume XXXIX, starting on page 17,292 front, this professional explained that because attorney Flores Fallas was occupying positions in the judiciary, she assumed the defense of the defendant, indicating to the latter that, after the conversion of the cassation appeal into an appeal against the judgment, the grounds and foundations expressed in the former would be maintained. Having verified that this was indeed the case, since both briefs present the same content and because the first was prepared by attorney Flores Fallas, this Chamber will refer only to him. Content of the appeal. In an initial exposition, attorney Flores Fallas stated that the act is time-barred; that substantive law was erroneously applied by describing three independent crimes without describing the elements (objective and subjective) of the criminal classification of illicit enrichment (enriquecimiento ilícito); that the principles of correlation between accusation and judgment, of in dubio pro reo, and of legality were violated when assessing the evidence; and that the principle of derivation was breached. Given the existing relationship, the claim the appellant calls “Single ground of cassation on the merits” and the one called “Third ground on procedural form” will be resolved jointly. Single ground of cassation on the merits. Erroneous application of substantive law, 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 classification of illicit enrichment (enriquecimiento ilícito) that is charged, corresponding to Article 346 subsection 3) of the Penal Code. According to the public defender, the judgment incurs a violation of the principle of correlation between accusation and judgment. After citing Articles 363 subsection b) and 369 subsection h), both of the Code of Criminal Procedure, attorney Wilson Flores affirms that the accused facts, identified with numbers 199 through 211, present problems with respect to the typical description of the crime of illicit enrichment (enriquecimiento ilícito). In fact 201 of the accusation, it is established: “… 201) The indictee [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.” From the foregoing, it is extracted that [Nombre01 006] was charged with a crime of illicit enrichment (enriquecimiento ilícito); however, subsequent to that accused fact, it is not described to which fact or which circumstances it refers, an aspect that is essential, since the Public Prosecutor's Office opted for the hypothesis of the “acceptance of the gift presented,” which means that the presentation of each gift and the correlative and simultaneous acceptance thereof constitutes an independent typical conduct. In the case of a plurality of actions like the one contained in the accusation, in facts 203, 208, and 210, there would then be a real concurrence of crimes, so for each crime, all the preconditions established in the criminal classification must be considered. For the defender, according to facts 203, 208, and 210, there were three independent presentations of gifts, so it was necessary to describe the elements of the criminal classification of Article 346 subsection 3) of the Penal Code in each case, this in order to have a clear, precise, and detailed accusation. The appellant states that “… However, as I anticipated, the Public Prosecutor's Office does not describe that the presentation of gifts was in consideration of the office, so the description of those independently accused facts does not describe essential elements such as the objective elements, among them the condition of being a public official, by reason of the position, since the gift by itself as a description in facts 203, 208, and 210, is an element common to several crimes such as active bribery, improper bribery, acceptance of gifts for a completed act, penalty of the corruptor (345 bis), illicit enrichment (enriquecimiento ilícito), such that the absence in the description of those three independent facts denotes the absence of essential elements of the criminal classification of 346 subsection 3…” (P. 17,104 and 17,105 front). Next, attorney Flores Fallas adds: “… In fact 203 it is charged: ‘Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre02 078] presented to the defendant [Nombre01 006] a gift consisting of investment certificates Nos. 22400200037170, Identificacion06 Identificacion07 and Identificacion08 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, [Nombre01 041] and [Nombre01 078] presented to the defendant, to the defendant [Nombre01 006], a gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica Nombre08° Identificacion09 Identificacion10 Identificacion11 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 corruptors [Nombre01 041] and [Nombre01 078], presented to the defendant, to the defendant [Nombre 006], a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica Nombre08° Identificacion12 Identificacion13 Identificacion14 and Identificacion15 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 [Nombre01 006] and who disposed of it in the following manner:..’. (The reproduction is literal, pages 17,105 and 17,106 front). For the defender of [Nombre01 006], the preceding description does not contemplate the elements of the objective and subjective classification of illicit enrichment (enriquecimiento ilícito) and, to that extent, what is described are atypical conducts: “… For example, the absence of the subjective element that motivates the presentation of the gift and that is what moves the subject who presents it, is not described, this being an essential element that must be known by the active subject of the crime, since the criminal figure of illicit enrichment (enriquecimiento ilícito) has a willful subjective typicality …”. (P. 17,106 front). The harm caused, the appellant indicates, consists of having been convicted for the crime of illicit enrichment (enriquecimiento ilícito) despite the fact that the accusation does not contemplate the essential elements of the criminal classification. If the Public Prosecutor's Office charged a material concurrence and described three gifts, but did not describe the elements of the criminal classification of illicit enrichment (enriquecimiento ilícito), the court could not consider the behavior as criminal. Third ground on procedural form. Injury to the principle of correlation between accusation and judgment. The Court modifies the actions charged to [Nombre01 006] in the formal accusation (sic) by the Public Prosecutor's Office and takes as proven facts actions that were not accused, since in the former they do not integrate an element of the classification and the new account made by the court integrates the elements of the classification (sic, p. 17,112, volume XXXVI). In this ground, identified as the third on procedural form (in reality, it is the second on procedural form), based on Articles 363 subsection b) and 369 subsection h) of the C.P.P., attorney Flores Fallas states that: “… The appealed judgment incurs a violation of the principle of correlation between accusation and judgment, pursuant to Articles 363 subsection b and 369 subsection h, both of the Code of Criminal Procedure, an aspect punishable by annulment. In the facts described in the accusation ranging from fact number 199 to fact 211, they present problems regarding the description of the criminal classifications being charged, namely, 3 crimes of illicit enrichment (enriquecimiento ilícito). Nombre02 in the fact numbered as 201 of the accusation, it is described: ‘201) The indictee [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre02 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.’ … In fact 203 it is charged: ‘Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre01 078] presented to the defendant [Nombre01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion07 and Identificacion08 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 ($10.00), 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, [Nombre01 041] and [Nombre01 078] presented to the defendant, to the defendant [Nombre01 006], a gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 Identificacion10 Identificacion11 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 corruptors [Nombre01 041] and [Nombre01 078], presented to the defendant, to the defendant [Nombre01 006], a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 Identificacion13 Identificacion14 and Identificacion15 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 [Nombre01 006] and who disposed of it in the following manner:’ From the foregoing, it follows that Mr. [Nombre01 006] is accused of one crime of illicit enrichment (enriquecimiento ilícito); however, after this accused fact where the elements of the criminal classification of illicit enrichment (enriquecimiento ilícito) are described in relation to one crime of illicit enrichment (enriquecimiento ilícito) corresponding to fact 201 of the accusation; nevertheless, the Public Prosecutor's Office describes in facts 203, 208, and 210 three independent gift presentations, so it was necessary or fundamental to comply with the requirements of a clear, precise, and detailed accusation, to describe the elements of the criminal classification of illicit enrichment (enriquecimiento ilícito) of Article 346 subsection 3 of the Penal Code. However, as I anticipated, the Public Prosecutor's Office, by NOT describing that the gift presentations were in consideration of the office, means that the description of those independently accused facts does not describe essential elements such as the objective elements, among them the condition of being a public official, by reason of the position; since the gift by itself as a description in facts 203, 208, and 210, is an element common to several crimes such as active bribery, improper bribery, acceptance of gifts for a completed act, penalty of the corruptor (345 bis), illicit enrichment (enriquecimiento ilícito); such that the absence in the description of essential elements of the criminal classification of 346 subsection 3, in the case of three independent facts, leads us to point out that we are in the presence of three accused behaviors that are atypical. It is fundamental to consider it an essential aspect that the Public Prosecutor's Office opts for the hypothesis of “acceptance of the gift presented,” which means that the presentation of each gift and the correlative and simultaneous acceptance thereof constitutes an independent typical conduct, each time it occurs, and in case of plurality as described in the accusation, facts 203, 208, and 210 necessarily generate a real concurrence of crimes, and therefore, in each case, all the preconditions established in the criminal classification must be met. For the foregoing reason, the accusation having opted for the formula “acceptance of the gift presented,” not only constitutes an independent fact from the previous one, but also requires the requirements of typicality. However, the Court takes as proven facts: ‘190) The indictee [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.Nombre72., a situation that generated illicit enrichment (enriquecimiento ilícito) for him. Said gift was paid in three installments… 191) It was Nombre02 how the indictee [Nombre01 041] and the suspect [Nombre01 078], following the dynamic of distribution of the money deposited in the checking account of [Nombre02 058]. Nombre68° [Valor 012] at Cuscatlán International Bank coming from [Nombre02 060], ordered [Nombre02 028] to purchase various certificates for the delivery of the following gifts: 192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre02 078] presented to the defendant [Nombre01 006] a first delivery of the gift consisting of investment certificates Nombre68°s Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 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 the minority vote, which highlights this situation denounced in the conclusions by this representation, by pointing out: ‘In the case of [Nombre01 006], as already indicated, the Accusation starts from the hypothesis that three gift presentations and three correlative acceptances or receptions of the presented gift were carried out; however, starting from the assumption that these are independent crimes, the Public Prosecutor's Office should have, in each case, made a description of all the factual circumstances that fulfill the criminal classification of illicit enrichment (enriquecimiento ilícito). In other words, each time a reference is made to a gift presentation and the acceptance thereof by [Nombre01 006], it should have, at a minimum, been pointed out that the gift presentation was made in consideration of the office of [Nombre01 006] as an official of the Instituto Costarricense de Electricidad, and that, [Nombre01 006], knowing the circumstance that motivated the gift presentation, accepted it while he was in the exercise of his position. The foregoing was not done, as can be inferred from the wording of the facts of the accusation numbers 203, 204, 208, 209, and 210. In fact 203, it is said that after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre01 078] presented to the defendant [Nombre01 006] a gift, consisting of five certificates of $10,000 dollars each, a gift that was accepted by the cited co-defendant (fact 204). In fact 208, with the same wording, the presentation of three certificates to [Nombre01 006] for a total of $20,000.00 is described, between July 2, 2002, and August 5, 2002, a gift that was accepted by said defendant. Fact 210, with the same description, refers to the third gift presented between December 17, 2002, and January 21, 2003, likewise accepted by [Nombre02 006]. The description of facts contained in the accusation, in the manner referred to in the previous paragraph, contains atypical conducts, because they do not indicate essential elements for being so, in relation to the criminal classification of illicit enrichment (enriquecimiento ilícito), such as the subjective element that motivates the gift presentation and that is what moves the subject who presents it, to do it, an element that must also be known by the active subject of the crime, since it is a criminal figure whose subjective typicality is willful. The foregoing could have been corrected with a general fact stating that the typical elements that are missed were present on all occasions that gifts were presented to [Nombre01 006] and that he accepted them; however, that was also not done, because the only fact that refers to the subjective element is number 201. There, the following can be read: “201) The indictee [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.” (See dissenting vote of co-justice Camacho Morales). Note how the Court introduces in recital “III” proven facts number 190, that the gift was made in three payments, by indicating: “190) The indictee [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.

That gift was paid in three installments… Given that with this wording by the Trial Court, we move from three independent actions, which do not describe conduct fitting any criminal category, to a single action that does describe the elements of the criminal category of illicit enrichment under Article 346, subsection 3 of the Penal Code. The trial court itself highlights when it explains each gift separately in different recitals, that in reality they do not consider it to be a single gift but rather three gifts… In this way, the Trial Court corrects the Public Prosecutor's Office's approach, without the prosecuting body requesting it, and by providing such an undue advantage, the sentencing court compromises the constitutional principle of impartiality. Despite the fact that the accusation presented by the Public Prosecutor's Office constitutes the factual limit to which the judgment may refer, the Trial Court finds a different fact proven from that described in the accusation, and this modification affects the right of defense, for what use are the conclusions provided in the debate if the Court drafts a criminal fact different from the three facts independently charged. From reading the accusation, it is never stated that "That gift was paid in three installments," so how can the Court arrange things to the detriment of the accused's interests, and in this way disregard the constitutional case law that has repeatedly indicated that the modification of the charged facts by the Court at the time of sentencing substantially affects the content of the principle of due process. Furthermore, it has been repeatedly indicated that the factual framework charged and upon which the trial is based cannot be varied, as there must be correlation between accusation and judgment, given that such matters form part of the right of defense since only by knowing the attributed facts can a defense be formulated, and if they are altered, it becomes impossible to effectively exercise that right. Based on the principle of correlation between accusation and judgment, the aim is that the judgment does not introduce variations to the factual framework imputed that affect or impede the exercise of an adequate defense, which, as in the specific case, implies an essential modification in criminally relevant aspects of the conduct submitted to trial, where from three independently charged facts where the description of the typical elements of the crime of illicit enrichment is absent, the Court makes a variation that affects the essential core of the accusation by adding "That gift was paid in three installments." Hence, the comparison in the judgment between the charged facts and the proven facts allows one to derive that the Court incurred in the defect noted, because the proven fact is essentially different from the charged fact, as the Court integrated that "That gift was paid in three installments." From the foregoing, it is derived that the judgment broke the logical unity of the process by making a description different from the one charged, which differs from the one originally charged by the Public Prosecutor's Office by not describing in any of the three independent facts of illicit enrichment the elements of the criminal category, both the objective and subjective elements; hence, it is, in my opinion, an infraction of one of the basic rules upon which our criminal procedural law is founded, as clearly expressed by the Constitutional Chamber, especially in judgment number 1739-92. Likewise, the doctrine also agrees with the need for the charged facts to be the sole basis for determining the conviction or acquittal of the accused…” (F. 17,112 to 17,119 front, volume XXXVI. The transcription is literal). After citing ruling No. 00481-95, from the Constitutional Chamber, which deals with the issue of correlation between accusation and judgment, the appellant considers that in the case of his client, the court has varied the charged factual framework. This framework contemplated three independent facts of illicit enrichment, without describing the essential elements of the criminal category. Otherwise, without the variation, the lower court would have concluded that the crime of enrichment under Article 346, subsection 3) of the Penal Code was not configured in this matter.

VIII.- The arguments cannot succeed. As already explained in the first recitals of this ruling, the Third Chamber resolved these claims on appeal, concluding that the principle of correlation between accusation and judgment had not been breached; that the former Art. 346, subsection 3) of the Penal Code had not been erroneously applied to the particular case; and that the accusation formulated by the requesting body contemplated all the elements of the criminal category of illicit enrichment. In this regard, it was stated: “XVI. Section VII of the challenge raised by the Public Prosecutor's Office. Grounds for Appeal related to the erroneous application of substantive norms by the Court of Appeals. XVII. Pursuant to Articles 33 and 41 of the Constitution; 365 and 468, subsection b) of the Code of Criminal Procedure, in the second ground of the seventh section of the Public Prosecutor's Office's Appeal, an erroneous application of procedural precept 365 of the Code of Criminal Procedure is alleged, with respect to the ``configuration of a lack of correlation between accusation and the conviction judgment issued by the Trial Court when convicting the accused [Name 006] for the crime of Illicit Enrichment`` (Cf. f. 175347 of volume XLII of the case file). For the prosecuting entity, the ruling of the Court of Appeals incurs a clear violation of Article 365 cited above, when it issued, on appeal, the acquittal of [Name01 006] for the crime of Illicit Enrichment and considered that the accusatory pleading described an inconclusive action that had to be supplemented by the Criminal Court of the Treasury and Public Function, since both the charged facts and those accredited in judgment 167-2011 are similar, attributing the same specific criminal actions to the defendant [Name01 006], except that the proven facts introduce the clarifying phrase ``Dicha dádiva fue pagada en tres tractos`` (Cf. f. 175347 to 175352 of volume XLII of the case file). On this subject, the challengers cite, where relevant, the votes of the Third Chamber numbers 2006-0503, of nine o'clock, on the second of June, two thousand six; 2007-0382, of nine hours and forty minutes, on the twenty-fifth of July, two thousand seven; and 2009-1667, of sixteen hours and fifteen minutes, on the twenty-sixth of November, two thousand nine, from which they extract that the modifications for the constitution of the defect of lack of correlation between accusation and judgment cannot refer to formal aspects but to substantial variations that significantly affect the exercise of the defense by being surprising, which implies that for the individual, the phrase introduced by the Trial Court in the accredited facts is in no way unexpected for the accused or his technical defense, since besides the fact that an identity is observed between the statement of charged facts and the proven ones, it is noted that [Name01 006] was indicted for those actions from the first stages of the process and that the accusation describes the admission of a gift consisting of money, which was presented by the co-defendants [Name01 041] and [Name01 078] in consideration of his position as a public official, and the prosecuting body does not appreciate from where the Ad quem derives that the introduced phrase ``surprises the defense, in the sense that it convicts for a gift in installments (folio 174495 back of the main case file)…`` (Cf. f. 175354 of volume XLII of the case file), since rather, the indictee [Name01 006] was accused by the Public Prosecutor's Office for three facts that described three gifts that constituted, at the same time, three crimes of Illicit Enrichment, while the proven facts, with the introduction of the mentioned phrase, describe the commission of a single crime paid in three installments, which, in observance of the ``principle of favorability`` (Cf. f. 175355 of volume XLII of the case file), provided for in Article 365 of the Code of Criminal Procedure, is more beneficial for the defendant and his defense. As a grievance, an incorrect issuance of the acquittal of [Name01 006] is presented, since the Trial Court, far from harming the defendant, introduced a favorable circumstance by means of which the accredited facts were reclassified to a single crime of Illicit Enrichment and not three as the Public Prosecutor's Office sought, requesting as a petition, the annulment of the ruling and the correct interpretation in accordance with the corresponding law, upholding the conviction judgment ordered by the A quo against [Name01 006]. In the third ground of the seventh section of the appeal, the disregard of Articles 33 and 41 of the Political Constitution as well as numeral 468, subsection b) of the Code of Criminal Procedure is also claimed, and the former Article 346, subsection 3) of the Penal Code is claimed to be erroneously applied, regarding the configuration of the crime of Illicit Enrichment charged to [Name01 006]. From the prosecutorial approach, fact 201 of the accusatory pleading attributed to [Name02 006] a factual picture that comprised the objective and subjective elements of the criminal category of Illicit Enrichment, when, in what is relevant, it imputed that: ``[…] Defendant [Name01 041] and indictee [Name01 078], as representatives of the company [Name 091], presented the accused [Name01 006], in consideration of his office, a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Directorate of the Switching Department of the I.C.E., a situation that generated illicit enrichment…`` (Cf. f. 175357 of volume XLII of the case file. The bolded text belongs to the original), while from facts 202 to 211, the acts through which those gifts were presented were also described, namely: ``a) Several bearer investment certificates on dates between December 10, 2001, and January 10, 2002; b) another series of bearer investment certificates on dates between July 2, 2002, and August 5, 2002; c) a final series of bearer investment certificates on dates between December 17, 2002, and January 21, 2003…`` (Cf. f. 175357 of volume XLII of the case file), while that same statement of facts was held as proven from fact 190 of judgment 167-2011, except that it includes the phrase: ``Dicha dádiva fue pagada en tres tractos`` (Cf. f. 175358 of volume XLII of the case file). However, despite the identity of both facts and that it is the same Court of Appeals that admits that the crime of Illicit Enrichment can be configured from the alternative conducts of: ``…i) the acceptance of the offered gift and ii) the acceptance of the presented gift (folios 174493 of volume XLI of the case file front and back…`` (Cf. f. 175358 of volume XLII of the case file), it contradictorily issues the acquittal of the cited defendant, by determining that: ``…In the case of the facts attributed to [Name01 006] we would be, then, in the presence of an accusation for an incomplete fact, which does not satisfy all the elements of the objective category and leaves the subjective element of the act without substance (sic), both of the person who offers and of the person 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 imputed to [Name01 006], that subsidiarity cannot be found, not only because the accusation remains with the mere act of the offering of the gift, and does not elaborate with sufficient proof the other typical considerations of the punishable act…`` (Cf. folios 174494 front and back)…`` (Cf. f. 175359 of volume XLII of the case file). Based on the preceding citation, the challenging prosecutors maintain that the appellate Court errs when it assures that the accusation presents formal defects that attribute to [Name01 006] a ``mere offering of the gift`` (Cf. f. 175359 of volume XLII of the case file), because it forgets that lines above, that same ruling, in the transcription of the charged facts, imputed to the defendant the ``presentation of three gifts`` (Cf. f. 175359 of volume XLII of the case file. The bolded text is from the original), which were accepted by him, so that the verb ``offer`` was never used in the drafting of the facts listed from 199 to 211 (Cf. f. 175359 of volume XLI of the case file). They demand that the Ad quem constructs a ``false problem`` to acquit the defendant [Name01 006], because it assumes that the accusation imputed ``offered gifts`` (Cf. f. 175360 of volume XLI of the case file. The bolded text belongs to the original), when the truth is that the proven crime of illicit enrichment was for ``the presentation of three gifts that were accepted by the accused [Name01 006]`` (Cf. f. 175359 of volume XLII of the case file, the boldface is from the original). They repeat that the appellate Judges, from folio 174495 front and back, confuse in the proven facts the typical requirements of the crime of illicit enrichment by offered gifts, since they introduce circumstances related to other functional criminal categories not charged to [Name01 006], which undermines the analysis of guilt conducted in the first instance ruling. In synthesis, they maintain that the Ad quem, despite having accredited the receipt of monies presented to [Name01 006], acquits him of all penalty and responsibility, which seriously injures the punitive claim of the prosecuting entity, petitioning that the annulment of the ruling be ordered, a correct interpretation of law, and that the conviction judgment 167-2011 issued to the defendant be upheld. Given the existing relationship between the second and third grounds of the seventh section of the prosecutor's appeal, both claims are heard jointly and are granted. This Chamber considers that the defects of lack of correlation between accusation and judgment and erroneous application of the former Article 346, subsection 3) of the Penal Code, as found by the Appellate Court regarding the crime of Illicit Enrichment attributed to the defendant [Name01 006], do not exist. Precisely, from the intellective reasoning contained in the questioned ruling, it is clear that the Court of Appeals, to determine the supposed defects cited above, established in what is relevant that: ``…This Chamber has carefully read the facts attributed to the defendant [Name01 006], 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 he remained in his position as an official of ICE in the Switching Department (…) The Illicit Enrichment charged is based, firstly, as the Public Prosecutor's Office could be presenting it in its accusation, on having been the subject of an offering of a gift, which is not a specific and specializing element of the charged crime, 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 defendant is described, on the various occasions in which said criminality may have taken place. That is, each time an offering of a gift is made, 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 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 given in consideration of the office of the person who is a public official, since the gift alone is already an objective requirement of the criminal category of several crimes such as improper bribery, proper bribery, or the very acceptance of gifts for an accomplished act, for example. Hence, it is not clarified, with the required precision, the charged fact and the eventual typicality of the conduct that could derive from it. In facts 203, 208, and 210 this deficiency is again noted (…). 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 Recital XII of the Judgment, on ``Description of the conduct of the accused [Name 006]``, it was stated: /``190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Directorate of the Switching Department of the I.C.E., a situation that generated illicit enrichment for him. Dicha dádiva fue pagada en tres tractos.`` This, without a doubt, transforms the charged fact, trying to accommodate the circumstance of the gifts and the absence of specializing elements for each of them, to involve a fact that surprises the defense, in the sense that it convicts for a gift in installments that [Name01 006] 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. The latter is not consistent 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, 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 fact of Illicit Enrichment, however, despite this, the imputation of a single gift offer does not allow one to know which of them it refers to, as was explained in the previous subsection, and could lead one to think of the typicality of different criminal acts where a gift is an element to be taken into consideration, as is the case of proper bribery, improper bribery, the acceptance of gifts for an accomplished act, and the very penalty of the corruptor. It is for this reason that therefore there would also be no basis to convict the defendant [Name01 006], and there would be sufficient reason to declare the nullity of the judgment, insofar as it holds the defendant as the responsible perpetrator of a crime of Illicit Enrichment, due to recalification…`` (Cf. f. 174495 back of volume XLI of the case file). From the foregoing reasoning, argued by the Appellate Court, it can be deduced that the infractions argued by the Public Prosecutor's Office are presented in two aspects, on which the prosecuting entity is fully correct. In the first place, fact 190 from which the second instance Court derives an inconclusive imputation of the crime of illicit enrichment does not present such a characteristic, since that specific section expressly describes the subjective and objective elements of the crime of Illicit Enrichment contemplated in the former Article 346 of the Penal Code, when it states that [Name01 041] and [Name01 078], as representatives of the company [Name 091], ``presented the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position…`` (Cf. f. 00015473 of volume XXXII of the case file, Fact 190, the bolded text is ours), as a public official and Deputy Head of the Directorate of the Switching Department of the Costa Rican Institute of Electricity, that is to say, it alludes to gifts that were presented to [Name01 006] when he held a public official position and to their admission by the indicted person. In this regard, note that the former Article 346 of the Penal Code stipulated: ``…Shall be punished with imprisonment from six months to two years, the public official who without incurring a more severely punished crime: (…) 3) Admitted gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position…`` (The bolded text is ours). So that, since this article contains the disjunctive conjunction ``or,`` we are faced with a word that ``denotes difference, separation, or alternative between two or more persons, things, or ideas`` (http://lema.rae.es/drae/?val=0). On the subject, since the mentioned article contains a conjunction that shows alternativity between two clearly differentiated actions, it is patent that, for the accreditation of the criminal category of illicit enrichment, contained in the former Article 346 of the Penal Code, the demonstration of the admission of the gift by the public official is sufficient, it being not indispensable for the demonstration in the description of the facts of the ``presented`` or ``offered`` actions at the same time, but rather the accreditation of only one of those conducts, that is, receiving or accepting the gifts presented to him by reason of his position. Likewise, in the accreditation of that criminal illicit act, the description in each of the sections of that factual framework of the characteristic of public official and the acceptance of the gift in consideration of that position is made unnecessary, since in the first fact of the accusation referring to [Name01 006], both conditions had already been described. The second element to consider, and which is derived from the citation of the aforementioned judgment 2012-2005, lies in the fact that the difference admitted by that jurisdictional body between the charged facts and the proven ones, in the opinion of this Chamber of Appeals, does not present an essential character, nor would it have produced any defect to the right of technical and material defense of the defendant [Name01 006], because the apparent facts constituting the sole accredited crime of Illicit Enrichment are clearly detailed in the factual account described by the prosecutorial requirement, when it established: ``…199) The accused [Name01 006], held the position of Electrical Engineer at the I.C.E. from December 1, 1998 until June 30, 2001, from which time he moved to occupy the post of deputy head of the directorate of the Switching Department of said institution. Such positions accredit him as a public official. The labor activity also implied maintaining constant communication with telecommunications suppliers, among them the company [Name 091]. 200) Between the defendant [Name01 006] and the company [Name 091] there was no type of private commercial relationship, but rather the contact between both parties derived at all times from the condition of an I.C.E. official that [Name01 006] held, as stated. 201) The defendant [Name02 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Directorate of the Switching Department of the I.C.E., a situation that generated illicit enrichment for him. 202) It was thus that the defendant [Name01 041] and the indictee [Name01 078], following the distribution dynamic of the money deposited in the current account of [Name 058]. No. [Value 012] at Cuscatlán International Bank originating from [Name 060], ordered [Name02 028] the purchase of various certificates for the delivery of the following gifts: 203) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name02 078] presented the accused [Name01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 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). 204) Said gift was accepted by the accused [Name01 006] who proceeded to endorse certificates Nos. Identificacion16 Identificacion06 Identificacion17 and delivered them at the Nombre74 agency for the purpose of acquiring in his name the Suzuki brand vehicle, Grand Vitara XL, series , chassis , engine H27A105387, 2002 model. 205) On January 10, 2002, Nombre74 issued sales report No. 99-12-54 by which the vehicle Grand Vitara XL, of the indicated qualities, was sold to the accused [Name01 006]. In this way, on January 15, 2002, money receipt No. 38999 was issued by the Nombre74 Vehículos Suzuki agency, in the name of [Name01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), for payment of the referenced vehicle. 206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was admitted by the accused [Name 006], who invested it in the BCT Valores stock market position on January 14, 2002, together with its interests for a total of $39.65 - adding from his own funds a sum in cash of eight thousand one hundred dollars ($8,100) - in a business fund in dollars managed by that financial entity. 207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) drawn in favor of [Name01 197], spouse of the accused [Name01 006]. 208) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name01 041] and [Name 078] presented the accused [Name01 006] a second gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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. 209) Said gift was accepted by the accused [Name01 006], who gave it to his wife [Name01 197]; she proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days. 210) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Name01 041] and [Name01 078] presented the accused [Name01 006] a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15 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 $100.08., which was accepted by the accused [Name01 006] and disposed of it in the following manner: a) With relation to certificate Identificacion12, he delivered it together with the interest coupon - adding cash from his funds for a total of one thousand two hundred dollars ($1,200) - to BCT Valores, with the objective of making an investment in the dollar liquidity fund, managed by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was drawn in favor of the spouse of the accused [Name01 006]. The check was deposited in account No. [Value 057] of the beneficiary [Name01 197] at Banco Popular y de Desarrollo Comunal. b) With relation to certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02 to his wife [Name01 197], the latter proceeding to endorse it and deposit it to current account [Value 035] at Banco Popular y de Desarrollo Comunal. c) With relation to certificates No. Identificacion13 and No. 2240020056299, he also delivered them - together with the respective interest coupons - to his wife, who delivered the certificates to Mrs. [Name01 199] with the objective of paying for the decoration of her dwelling house, and deposited the coupons in the account in her name at Banco Popular y de Desarrollo Comunal. 211) In total, the accused [Name02 006] illicitly enriched himself through the receipt of the gifts received from the accused [Name01 041], [Name01 028], and [Name01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20) …`` (Cf. f. 14490-14492 of volume XXX of the case file).

To the foregoing description of facts must be joined the factual basis contained in the majority vote of judgment 167-2011, in order to dismiss the defect of correlation between accusation and judgment challenged, since the section "Description of the conduct of the accused [Name 006] (Considerando Nº XII)", which contains the proven facts, ordered: "...188) The accused [Name01 006] held the position of Electrical Engineer of the I.C.E. from December 1, 1998, until June 30, 2001, at which point he went on to occupy the position of deputy chief of the direction of the Switching Department of said institution. Such positions accredit him as a public official. The work activity also involved maintaining constant communication with suppliers in the field of telecommunications, among them the company [Name 091]. / 189) Between the indicted [Name01 006] and the company [Name 091] there existed no type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of official of the I.Nombre72., which as stated was held by [Name01 006]/190) The indicted [Name01 041] and the indictee [Name02 078], as representatives of the company [Name01 091], presented to the accused [Name01 006] in consideration of his office a gift (dádiva) consisting of money, the same which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, properly as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him. Said gift was paid in three installments./191) It was Nombre02 as the indicted [Name01 041] and the indictee [Name01 078] and following the dynamic of distribution of the money deposited in the current account of [Name01 058]. No. [Value 012] at Cuscatlán International Bank originating from [Name02 060], ordered [Name02 028] the purchase of various certificates for the delivery of the following gifts:/192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a first delivery of the gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer on December 10, 2001, with an expiration 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)./ 193) Said gift was accepted by the accused [Name01 006] who delivered certificates Nos. Identificacion16 Identificacion06 Identificacion17 to the agency Nombre74 with the purpose of acquiring in his Nombre01 the vehicle make Suzuki, Grand Vitara XL, series JS3TX92V024103244, chassis , engine H27A105387, model 2002. / 194) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74 through which the Grand Vitara XL vehicle, of the indicated qualities, was sold to the accused [Name01 006]. In this manner, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the Nombre01 of [Name01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle./195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, said part of the gift was admitted by the accused [Name01 006], who invested it in the brokerage house of BCT Valores on January 14, 2002, together with its interest for a total of $39.65 -adding from his own private funds a sum of cash for eight thousand one hundred dollars ($8,100)- in a business fund in dollars administered by that financial entity./196) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) drawn in favor of [Name01 197], spouse of the accused [Name02 006]. /197) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name01 041] and [Name 078] presented to the accused [Name01 006] a second payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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./198) Said gift was accepted by the accused [Name02 006], who delivered it to his wife [Name02 197]; she proceeded to constitute the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her Nombre01 and with a term of three months and seven days./ 199) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Name01 041] and [Name01 078] presented to the accused [Name01 006] the third payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15 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 $100.08., which was accepted by the accused [Name01 006] and he disposed of it in the following manner:/ a) In relation to certificate Identificacion12, he delivered it together with the interest coupon -adding cash from his private funds for a total of one thousand two hundred dollars ($1,200)- to BCT Valores, with the objective of making an investment in the liquidity fund in dollars, administered by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was drawn in favor of the wife of the accused [Name01 006]. The check was deposited in account No. [Value 057] of the beneficiary [Name02 197] with Banco Popular y de Desarrollo Comunal. b) In relation to certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02, to his wife [Name01 197], the latter proceeding to endorse and deposit it to current account [Value 035] at Banco Popular y de Desarrollo Comunal. c) In relation to certificates No. Identificacion13 and No.2240020056299, he also delivered them -together with the respective interest coupons- to his wife, who delivered the certificates to Mrs. [Name02 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons in the account in her Nombre01 at Banco Popular y de Desarrollo Comunal. 200) In total, the accused [Name01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Name01 041], [Name01 028] and [Name01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)..." (Cf.f.00015473-00015476 of volume XXXII), it being that, once the framework accused against [Name01 006] is compared versus the factual basis of the judgment, -apart from its veracity or not, which must be assessed by the respective Court of Appeals-, no essential difference is appreciated that would have impeded the full exercise of the right to defense, both technical and material, of the justiciable [Name 006], as is denoted from the following comparative table:

| --- | --- | Accused facts by the prosecuting body, in reference to the indictee [Name 006] Proven facts contained in judgment 167-2011, in reference to the indictee [Name01 006] 199) The accused [Name01 006], held the position of Electrical Engineer of the I.C.E. from December 1, 1998, and until June 30, 2001, at which point he went on to occupy the position of deputy chief of the direction of the Switching Department of said institution. Such positions accredit him as a public official. The work activity also involved maintaining constant communication with suppliers in the field of telecommunications, among them the company [Name 091].

188) The accused [Name01 006], held the position of Electrical Engineer of the I.C.E. from December 1, 1998, and until June 30, 2001, at which point he went on to occupy the position of deputy chief of the direction of the Switching Department of said institution. Such positions accredit him as a public official. The work activity also involved maintaining constant communication with suppliers in the field of telecommunications, among them the company [Name 091].

200) Between the indicted [Name01 006] and the company [Name 091] there existed no type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of official of the I.Nombre72., which as stated was held by [Name01 006].

189) Between the indicted [Name01 006] and the company [Name 091] there existed no type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of official of the I.C.E., which as stated was held by [Name01 006].

201) The indicted [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, the same which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, properly as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment for him.

190) The indicted [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, the same which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, properly as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments.

202) It was Nombre02 as the indicted [Name01 041] and the indictee [Name01 078] and following the dynamic of distribution of the money deposited in the current account of [Name01 058]. No. [Value 012] at Cuscatlán International Bank originating from [Name02 060], ordered [Name01 028] the purchase of various certificates for the delivery of the following gifts:

191) It was Nombre02 as the indicted [Name01 041] and the indictee [Name01 078] and following the dynamic of distribution of the money deposited in the current account of [Name01 058]. No. [Value 012] at Cuscatlán International Bank originating from [Name02 060], ordered [Name01 028] the purchase of various certificates for the delivery of the following gifts:

203) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name01 078] presented to the accused [Name01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer on December 10, 2001, with an expiration 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).

192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name02 041] and [Name02 078] presented to the accused [Name02 006] a first delivery of the gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer on December 10, 2001, with an expiration 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) 204) Said gift was accepted by the accused [Name01 006] who proceeded to endorse certificates Nos. Identificacion16 Identificacion06 Identificacion17 and delivered them at the agency Nombre74 with the purpose of acquiring in his Nombre01 the vehicle make Nombre18, Grand Vitara XL, series JS3TX92V024103244, chassis , engine H27A105387, model 2002.

193) Said gift was accepted by the accused [Name01 006] who delivered certificates Nos. Identificacion16 Identificacion06 Identificacion17 to the agency Nombre74 with the purpose of acquiring in his Nombre01 the vehicle make Nombre04, Grand Vitara XL, series JS3TX92V024103244, chassis JS3tx92v024103244, engine H27A105387, model 2002.

205) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74 through which the Grand Vitara XL vehicle, of the indicated qualities, was sold to the accused [Name01 006]. In this manner, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the Nombre01 of [Name01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle.

194) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74 through which the Grand Vitara XL vehicle, of the indicated qualities, was sold to the accused [Name01 006]. In this manner, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the Nombre01 of [Name01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle.

206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, said part of the gift was admitted by the accused [Name01 006], who invested it in the brokerage house of BCT Valores on January 14, 2002, together with its interest for a total of $39.65 -adding from his own private funds a sum of cash for eight thousand one hundred dollars ($8,100)- in a business fund in dollars administered by that financial entity.

195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, said part of the gift was admitted by the accused [Name 006], who invested it in the brokerage house of BCT Valores on January 14, 2002, together with its interest for a total of $39.65 -adding from his own private funds a sum of cash for eight thousand one hundred dollars ($8,100)- in a business fund in dollars administered by that financial entity.

207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) drawn in favor of [Name01 197], spouse of the accused [Name01 006].

196) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) drawn in favor of [Name01 197], spouse of the accused [Name01 006].

208) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a second gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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.

197) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name02 041] and [Name02 078] presented to the accused [Name01 006] a second payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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.

209) Said gift was accepted by the accused [Name01 006], who delivered it to his wife [Name01 197]; she proceeded to constitute the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her Nombre01 and with a term of three months and seven days.

198) Said gift was accepted by the accused [Name01 006], who delivered it to his wife [Name01 197]; she proceeded to constitute the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her Nombre01 and with a term of three months and seven days.

210) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Name01 041] and [Name01 078] presented to the accused [Name01 006] a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15 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 $100.08., which was accepted by the accused [Name01 006] and he disposed of it in the following manner: a) In relation to certificate Identificacion12, he delivered it together with the interest coupon -adding cash from his private funds for a total of one thousand two hundred dollars ($1,200)- to BCT Valores, with the objective of making an investment in the liquidity fund in dollars, administered by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was drawn in favor of the wife of the accused [Name01 006]. The check was deposited in account No. [Value 057] of the beneficiary [Name02 197] with Banco Popular y de Desarrollo Comunal. b) In relation to certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02, to his wife [Name01 197], the latter proceeding to endorse and deposit it to current account [Value 035] at Banco Popular y de Desarrollo Comunal. c) In relation to certificates No. Identificacion13 and No.2240020056299, he also delivered them -together with the respective interest coupons- to his wife, who delivered the certificates to Mrs. [Name02 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons in the account in her Nombre01 at Banco Popular y de Desarrollo Comunal.

199) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Name01 041] and [Name01 078] presented to the accused [Name01 006] the third payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15 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 $100.08., which was accepted by the accused [Name01 006] and he disposed of it in the following manner: a) In relation to certificate Identificacion12, he delivered it together with the interest coupon -adding cash from his private funds for a total of one thousand two hundred dollars ($1,200)- to BCT Valores, with the objective of making an investment in the liquidity fund in dollars, administered by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was drawn in favor of the wife of the accused [Name01 006]. The check was deposited in account No. [Value 057] of the beneficiary [Name01 197] with Banco Popular y de Desarrollo Comunal. b) In relation to certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02, to his wife [Name01 197], the latter proceeding to endorse and deposit it to current account [Value 035] at Banco Popular y de Desarrollo Comunal. c) In relation to certificates No. Identificacion13 and No.2240020056299, he also delivered them -together with the respective interest coupons- to his wife, who delivered the certificates to Mrs. [Name01 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons in the account in her Nombre01 at Banco Popular y de Desarrollo Comunal.

211) In total, the accused [Name01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Name01 041], [Name01 028] and [Name01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)..." (Cf.f.14490-14492 of volume XXX of the expediente).

200) In total, the accused [Name01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Name01 041], [Name01 028] and [Name01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)..." (Cf.f.00015473-00015476 of volume XXXII of the expediente).

Certainly, from the preceding box, it is possible to deduce that a single circumstance departs from the literalness of the accused factual framework and it is that which results from accused fact 201 with reference to proven fact 190 and related to the manner of payment of the apparent crime of Illicit Enrichment attributed to the indictee [Name 006]. Thus, if observed carefully, when comparing facts 201 with respect to 190, there exists no important variation in the description of the criminal type of Illicit Enrichment imputed from the first moment to [Name01 006], since in both factual frameworks the manner in which [Name01 041] and [Name01 078], as representatives of [Name01 091], presented for him a gift consisting of bearer investment certificates, in consideration of his position as a public official and Deputy Chief of the Direction of the Switching Department of the Instituto Costarricense de Electricidad, is described, determining as a non-substantial divergence, the manner in which the gift was delivered to [Name01 006], that is, that it "...was paid in three installments..." (Cf.f.00015474 of volume XXXII of the expediente). In this regard, note that, once the documentary and testimonial evidence was presented in debate, the Trial Court determined, based on the description of the accused facts, with clear favor to the legal situation of the accused [Name01 006], that it was a case of the alleged commission of a single crime of Illicit Enrichment and not of three as the prosecuting body had initially contemplated, since it was a determined amount to pay and receive, made in three installments, clearly described in the prosecutorial accusation: the first, was imputed as carried out in the period between December 10, 2001, and before January 10, 2002, with the delivery of the bearer investment certificates, numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 from Banco Cuscatlán de Costa Rica, each for ten thousand dollars, for a total of fifty thousand dollars ($50,000) (Fact 203 of the prosecutorial accusation); the second, described between July 2 and August 5 of two thousand two, in which [Name01 041] and [Name02 078] presented to the accused [Name01 006] the bearer investment certificates from Banco Cuscatlán de Costa Rica, numbers Identificacion09 Identificacion10 and Identificacion11 for ten thousand dollars ($10,000), five thousand dollars ($5,000) and five thousand dollars ($5,000), respectively, for a total of twenty thousand dollars and their corresponding interest coupons for the sum of $53.17 (Fact 208 of the prosecutorial accusation), and the third, between December 17 of two thousand two and January 21 of two thousand three, in which both corruptors delivered the bearer investment certificates, numbers Identificacion12 Identificacion13 Identificacion14 and Identificacion15 from Banco Cuscatlán de Costa Rica, each for ten thousand dollars ($10,000) and their respective interest coupons for $100.08 (Fact 210, of the prosecutorial accusation), for a total of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20). In such a way that, the modification made by the Court of first instance to the accused factual framework was not significant nor did it entail a variation of essential elements tending to incriminate the attributed criminal conduct, but rather that it occurs, exclusively, to detail the apparent installments in which the alleged gift of one hundred ten thousand three hundred thirty-six dollars and twenty cents was paid to [Name01 006], so that, contrary to what was determined by the Court of Appeals, it was also neither unexpected nor did it entail an infringement of the right to defense (See in the same sense Third Chamber of the Supreme Court of Justice, votes 2013-000578, of ten hours and six minutes, of May twenty-fourth, two thousand thirteen, with integration of the Judges Doris Arias, Sandra Zúñiga, Rosibel López, Jorge Enrique Desanti and Ronald Cortés; 2013-00921, at eleven hours thirty-five minutes, of July twelfth, two thousand thirteen, with integration of the Judges José Manuel Arroyo, Magda Pereira, Jorge Enrique Desanti, Sandra Zúñiga and Rafael Sanabria; 2006-00503, of nine hours, of June second, two thousand six, with integration of the Judges José Manuel Arroyo, Jesús Ramírez, Alfonso Chaves, Rodrigo Castro and Magda Pereira; 2005-00574, of eight hours fifty-five minutes, of June tenth, two thousand five, integration of the Judges Alfonso Chaves, Jesús Ramírez, Magda Pereira, María Elena Gómez and Jorge Arce), insofar as, that conduct was described from Nombre11 in facts 203, 208 and 210 of the prosecutorial accusation, the same which the indicted and his defense formally knew from the holding of the preliminary hearing, in the period from September first to October third, two thousand eight (Cf.f.10423 of volume XXIII of the expediente). See that the description of proven facts benefited the indicted [Name01 006], since the accusation initially presented by the Public Ministry attributed to him the commission of three crimes of Illicit Enrichment, while the Trial Court, making use of the powers contemplated in Article 365 of the Criminal Procedure Code, reclassified the conduct to a single crime of Illicit Enrichment, carried out in three installments. In full connection with the allegations raised, it must be sustained that the principle of correlation between accusation and judgment does not safeguard, as the Court of Appeals seems to understand it, "...an absolute identity between the factual account of the accusatory piece and the facts accredited in judgment as the appellant seems to understand it (...) The indicated principle is transgressed when, 'the Judges substantially modify the core of the prosecutorial requisition, to the point of generating surprise and defenselessness for the parties' (see from this Chamber, among others, votes No. 137-F, of 9:10 hours, of April 24, 1992, No. 95-F, of 9:35 hours, of March 12, 1993, No. 366-F, of 9:05 hours, of June 30, 1995 and No. 501, of 10:40 hours of May 25, 2001)." (Third Chamber, No. 198 of 9:30 hours of March 18, 2005)..." (Third Chamber of the Supreme Court of Justice, vote 2012-00544, of nine hours forty-eight minutes, of March twenty-second, two thousand twelve, with integration of Judges Arroyo, Nombre26, Pereira, Chinchilla and Arias), in such a way that, neither does the mentioned principle prohibit reclassifications in debate, just as the Court of Appeals tacitly seems to understand it, but rather those may arise insofar as they do not have to modify essential elements of the attributed framework or represent a detriment to the right to defense (See in the same sense, (Third Chamber of the Supreme Court of Justice, vote 2012-001773, of fifteen hours and fifty-eight minutes, of December fourth, two thousand twelve, with integration of Judges Jesús Ramírez, Madga Pereira, Carlos Chinchilla, Doris Arias and María Elena Gómez). By virtue of the foregoing, the second and third grounds of the seventh section of the Cassation Appeal of the Public Ministry are declared with merit, for which the judgment is annulled insofar as it declared the acquittal of [Name01 006], for lack of correlation between accusation and judgment and for the erroneous application of the former article 346 subsection 3) of the Criminal Code. The case is remanded, so that with a new integration, it proceeds according to the corresponding law...".

As observed, the objections of the defense counsel for [Nombre01 006] were clarified by the Criminal Cassation Chamber (Sala Tercera) when it heard the appeal filed by the Public Prosecutor's Office (Ministerio Público) against the resolution issued by this office (with a different panel), in which, in turn, the claims made by attorney Flores Fallas at this procedural stage (appeal of the judgment) had been granted. The cassation court, in the final instance, concluded that the accusation was not deficient regarding the description of the elements of the criminal offense (tipo penal) of illicit enrichment (enriquecimiento ilícito); that the change made by the trial court (tribunal de juicio), namely, considering it proven that the economic remuneration was paid in three installments, not only did not harm the defense rights of [Nombre01 006] but —on the contrary— favored him, since he was convicted of a single crime of illicit enrichment (enriquecimiento ilícito); and finally, that the application of the substantive norm (Article 346, subsection 3, of the Criminal Code) had been correct. We are speaking of decisions that this Chamber must respect when carrying out the ordered remand (reenvío) and which, in any case, we consider correct, since indeed, from a comprehensive reading of the accusation, it is extracted that [Nombre01 006] admitted the three aforementioned benefits (dádivas) on the occasion of and during the performance of his position, elements that, precisely, constitute the criminal offense (tipo penal) of illicit enrichment (enriquecimiento ilícito). Note that in fact number 201, a generic description of the conduct attributed to [Nombre01 006] was contemplated. Specifically, it is stated that a benefit (dádiva) was presented to him in consideration of his public position as deputy chief of the ICE Switching Department Directorate, and that he admitted it while remaining in the exercise of the same (f. 14,491 front, volume XXX). This Court of Appeals (tribunal de apelación) affirms that it is a generic description because at this point in the accusation, no mention is made of the amounts admitted by the defendant, with that aspect not being addressed until later, specifically in facts numbers 203, 208, and 210. It suffices to read the already-cited facts in a comprehensive manner to conclude that number 201 also forms part of them, complementing them. For this very reason, the lower court (a quo) could well have concluded that three independent crimes of illicit enrichment (enriquecimiento ilícito) were attributed to [Nombre01 006], and not just one, as it finally concluded, without the Public Prosecutor's Office (Ministerio Público) appealing the point. Consequently, the modification made by the trial court on the merits (tribunal de mérito), pointing out that this accused admitted a single benefit (dádiva) —and therefore committed a single crime— was indeed more favorable to him. Moreover, it is important to reiterate that illicit enrichment (enriquecimiento ilícito) is a generic or residual criminal offense (tipo penal) compared to more complex figures. Unlike what happens with other criminal offenses (tipos penales), where a specific purpose is provided as a subjective element additional to intent (dolo) —a purpose that guides the public official when receiving the benefit (dádiva) or the promise thereof, and which is the same one that directs the action of the person who, in a convergent manner, presents or promises the remuneration (e.g., acceptance of benefits for a past act (aceptación de dádivas por un acto cumplido), in relation to the penalty for the corrupter)—, in the criminal offense (tipo penal) of illicit enrichment (enriquecimiento ilícito), the legislator contemplated the simple admission of economic remunerations that were presented or offered to the public official in consideration of his office and during the exercise of the position that motivated that presentation or offering, without it being necessary to prove, because the criminal offense (tipo penal) does not require it, that additional purpose that complements the intent (dolo). By way of example, to sanction illicit enrichment (enriquecimiento ilícito), it is not necessary to prove that the benefit (dádiva) was received as remuneration for an act performed by the public official and without any prior promise, a purpose that is indeed provided as a specializing element in the criminal offense (tipo penal) of acceptance of benefits for a past act (aceptación de dádivas por un acto cumplido). Therefore, the defense counsel is not correct in arguing that for this crime to be configured, it is essential to have proven or categorically ruled out the subjective elements he lists, which are characteristic of criminal offenses (tipos penales) that have a genus-to-species relationship with illicit enrichment (enriquecimiento ilícito), where the latter is the generic or residual norm; elements which, moreover, it must be said, were not attributed in relation to [Nombre01 006]. For all the foregoing, the objections are declared without merit.

IX.- First ground for cassation on procedural grounds (casación por la forma). Erroneous application of the statute of limitations (prescripción) criteria, given that a correct reading of the criminal statute of limitations (prescripción penal) rules allows the conclusion that the acts charged against [Nombre01 006] are "prescribed" (sic, f. 17,107, volume XXXVI). For the public defender, the statute of limitations (prescripción) rules set forth in Articles 31, subsection a), 33, subsection a), 376, 363, subsection b), and 369, subsection d), all of the Criminal Procedure Code (Código Procesal Penal), and 346, subsection 3), of the Criminal Code have been violated. First, he points out that the classification given to the facts was reduced to the crime of illicit enrichment (enriquecimiento ilícito). Now, as of the date of the charged facts (December 10, 2001), Article 346, subsection 3), stated: "Shall be punished with imprisonment from six months to two years, the public official who, without incurring a more severely punishable crime: 3) Admits benefits (dádivas) that were presented or offered to him in consideration of his office, while he remains in the exercise of the position." Co-defendant [Nombre01 006] is attributed with 3 crimes of illicit enrichment (enriquecimiento ilícito) in material concurrence (concurso material), as provided in numeral 346, subsection 3), of the Criminal Code, punishable with a prison sentence of 6 months to 2 years, whose statute of limitations (prescripción) period, pursuant to Article 31 of the Criminal Procedure Code (Código Procesal Penal), would be 3 years, so reduced by half, it would result in 18 months from any of the grounds for interruption of the statute of limitations (prescripción). Specifically, Article 33 of the Criminal Procedure Code (C.P.P.) establishes that the statute of limitations (prescripción) periods shall be reduced by half in several cases, one of which is the appearance of the accused to give a statement in response to charges (declaración indagatoria). In the case of [Nombre01 006], said act took place at 2:05 p.m. on March 7, 2005. Therefore, a statute of limitations (prescripción) period of 18 months must be calculated from that moment. Now, the next interrupting act, which was the scheduling of the preliminary hearing (audiencia preliminar), took place on September 10, 2007, leading to the conclusion that by then, the criminal action had already prescribed (it did so on September 7, 2006). However, the trial court (tribunal de juicio) considered that the declaration of complex proceedings (tramitación compleja) made on March 3, 2006, produced a retroactive effect, affecting the declaration as an accused (declaración como imputado) that was carried out following the statute of limitations (prescripción) rules for ordinary proceedings. The appellant argues that he is not unaware that complex proceedings (tramitación compleja) affect the statute of limitations (prescripción); however, this mechanism cannot have retroactive effects. He adds that although the court denies such retroactivity, the truth is that its interpretation does exactly that, since the law does not provide that the declaration of complex proceedings (tramitación compleja) affects the grounds for interruption already fulfilled under ordinary rules. Furthermore, what was resolved violates the principles of legality and legal certainty. After citing Article 376 of the Criminal Procedure Code (Código Procesal Penal) and some reasoning from the lower court's judgment, the appellant considers that the argument that the defendants were aware that the reduction could be rendered ineffective if the process became one of complex proceedings (tramitación compleja), besides being an irrelevant fallacy, does exactly what the court itself recognized, namely, rendering ineffective the reduction of the statute of limitations (prescripción) period by half with the defendants' statements. In support of his position, he refers to the opinion provided by [Nombre75], who considers that the period reduced by half, completed in the ordinary phase of the process, before the declaration of complexity, must be applied as is, without giving retroactive effect to the aforementioned declaration ([Nombre75], Procedure for Complex Proceedings Matters, in: Costa Rican Criminal Procedural Law, San José, Costa Rica, Costa Rican Criminal Sciences Association, Volume II, 1st edition, 2007, pp. 923 to 924). As a grievance, the challenger states that the decision violates the principles of legality and certainty, by ignoring the statute of limitations (prescripción) rules set forth in the Criminal Procedure Code (Código Procesal Penal), the very rules that serve to limit the State's ius puniendi. Finally, he points out that the error lies in not considering the criminal action prescribed despite it being so, for the reasons stated.

X.- The claim is declared without merit. The issue of the statute of limitations (prescripción) of the criminal action was definitively settled by the Criminal Cassation Chamber (Sala Tercera), concluding that in the specific case, it had not occurred. Specifically, it stated: "The claim is granted. In accordance with the arguments of the prosecuting body, which this Cassation Chamber strictly addresses to resolve, the first subsection alleged by the Public Prosecutor's Office (Ministerio Público) in this second ground is inaccurate, when it states that the Appeals Court (Tribunal de alzada) tacitly conceived the statute of limitations (prescripción) as a fundamental right of the defendants, since that jurisdictional body instead assumed, from the conception set forth in ruling 856-2001, of three eighteen p.m., of January thirty-first, two thousand one, of the Constitutional Chamber (Sala Constitucional), that the mechanism of the statute of limitations (prescripción) is '...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' (See f.174446 of volume XLII of the case file), a criterion that this Cassation Chamber fully shares, in strict adherence to the erga omnes jurisprudence of the Constitutional Chamber (Sala Constitucional), which, through rulings 4397-99, of sixteen hours six minutes, of June eighth, nineteen ninety-nine; 11582-01, of eight hours fifty-one minutes, of November ninth, two thousand one; 3498-2002, of fourteen hours and forty-six minutes, of April seventeenth, two thousand two; 2008-002119, of fourteen hours and fifty-one minutes, of February thirteenth, two thousand eight, among others, has held, regarding the nature of the statute of limitations (prescripción) of the criminal action, that it is nothing more than: '... the cessation of the punitive power of the State caused by the passage of a specific period established by law. The State, in these cases, declines the exercise of its punitive power and the right to apply a specific penalty, or to execute a penalty already imposed in a specific case. It arises mainly out of respect for the principle of legal certainty of individuals. Faced with the State's power-duty to apply the law and prosecute crime, the right to resist that power also arises, and that is why the legislator establishes certain rules to limit it and protect the citizen. The right of defense and its derivatives, the right to know what to expect —the basis of legal certainty— are just some of those rules that seek to balance the interests at stake —those of the citizen and the State—, all within the context of a democratic system of law. II. The statute of limitations (prescripción) is, therefore, not a punishment, nor a benefit —as the appellant seems to conceive it— but a procedural instrument that arises from the need to guarantee the citizen that there will be no arbitrariness in the prosecution of crime, because against him operates the full force of the objective parameters established in the law, and no others (…) III. The legislator, when regulating the statute of limitations (prescripción) for crimes in our country, by criminal policy, chose certain objective parameters such as the type of penalty, the upper limit of the sanction, or maximum and minimum caps in relation to the upper limit of the sanction, all with the aim of ensuring, according to the specific characteristics of each crime, a normal development of the prosecution of the criminal action and the process should it be exercised. The legislator considered that some cases, due to their nature, take more time for their reporting, investigation, and trial than others, such as those for injuries or other minor offenses that have a statute of limitations (prescripción) limit of two years. The formula used by the legislator, in the judgment of this Chamber, is not arbitrary; it is just one among many that could have been used to set the time —according to each crime— deemed necessary for reporting, investigation, and punishment. It could have opted for fixed maximum and minimum caps for each type of crime, or not taken the type of penalty into account, but it opted for a regulation that, by using several factors (type of penalty, type of crime, upper limit, etc.), could serve as a parameter to reconcile the interests of the State in the prosecution of crime and the rights of the citizen against its punitive power. The legislator is not obliged to opt for a single formula that applies to all crimes equally, because, as explained above, what this mechanism aims to do is reasonably regulate the prudent time that the legislator considers appropriate for the exercise of criminal action for certain types of crimes. The fact that for serious crimes it establishes a maximum statute of limitations (prescripción) period less than the upper limit of the penalty, while not doing so for lesser crimes where it allows a statute of limitations (prescripción) period greater than the upper limit of the penalty, does not imply a violation of the Constitution, and responds to the initial need to locate the evidence, refine it, and select that which relates to the probative subject matter; to facilitate the preparation of the defense and the eventual holding of a trial (debate), circumstances that are overcome within a period that the legislator estimated at two years, which is why, once this period has elapsed, this parameter loses importance, and others, such as the amount of penalty to be imposed, are applied to determine the statute of limitations (prescripción) of the criminal action...' (Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia), ruling 6472-96, of fifteen hours forty-two minutes, of November twenty-seventh, nineteen ninety-six. The underlining is ours. In the same vein, see rulings 01797-97, of fifteen hours twenty-one minutes, of April second, nineteen ninety-seven; 2008-002119, of fourteen hours and fifty-one minutes, of February thirteenth, two thousand eight; 2008-002120, of fourteen hours and fifty-two minutes, of February thirteenth, two thousand eight, all from the Constitutional Chamber (Sala Constitucional)). From the foregoing perspective, as the figure of the statute of limitations (prescripción) of the criminal action is considered a purely procedural mechanism that results in the cessation of the State's ius puniendi, occurring as a consequence of the passage of time, it is necessary to clarify that, within this notion, at least three fundamental elements that constitutional jurisprudence has developed must be studied: First, that the regulation of the statute of limitations (prescripción) of the criminal action is a matter of criminal policy adopted by the State through the competent body, i.e., the Legislative Assembly (Asamblea Legislativa), so that the latter has the power to establish the parameters for its regulation. Second, that there is no constitutional right to the statute of limitations (prescripción), but rather the right to legal certainty, legality, effective judicial protection, and equality, principles that are not harmed by the State as long as the periods established for the reporting, investigation, and trial of crimes set by the legislator are reasonable and are defined and limited by law. Third, that the statute of limitations (prescripción) is a legal instrument created to decline the exercise of the State's punitive power, which acts as a procedural sanction for the inactivity of the procedural parties in initiated or uninitiated processes.' (judgment no. 4397-99 of sixteen hours six minutes, of June eighth, nineteen ninety-nine)..." (Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia), ruling 3498-2002, of fourteen hours and forty-six minutes, of April seventeenth, two thousand two. The underlining belongs to the original). Based on such considerations, it is evident that the theoretical conceptualization employed in the specific case by the Ad quem court regarding the mechanism of the statute of limitations (prescripción) of the criminal action is in accordance with law, since from the transcribed citation, it is clear that it is conceived as the cessation of State power and not as a right of the defendant. However, from the aforementioned caveat, this Cassation Chamber (Cámara de Casación) also notes that judgment 2012-2550 contains a very significant error by declaring the statute of limitations (prescripción) of the criminal cases against defendants [Nombre01 001], [Nombre 006], [Nombre 028], [Nombre 018], [Nombre02 022], [Nombre01 041], and [Nombre01 033] and interpreting and applying rule 376 of the Criminal Procedure Code (Código Procesal Penal) regarding the declaration of complex proceedings (tramitación compleja), so on that question, the ground must be granted, in attention to the reasons set forth below. The procedure for complex proceedings (tramitación compleja) has been understood by the Constitutional Chamber (Sala Constitucional) as an exceptional process included in our legislation through Article 376 of the Criminal Procedure Code (Código Procesal Penal), which '...raises an evident conflict between two tendencies or interests that have been present throughout its history. On the one hand, the concern to establish a system of guarantees against State power that protects the freedom and dignity of the individual, and on the other, the achievement of the greatest possible efficiency in the application of criminal coercion. A model of criminal proceedings in a democratic rule-of-law State must respond to the dual problem of efficiency and guarantee, seeking a balance between both interests. The procedure for complex proceedings (tramitación compleja) matters is designed as an exceptional procedure for qualified cases, where there genuinely exists a clear and evident difficulty in processing. It aims to avoid the dysfunction that would occur if ordinary time limits were applied to cases whose complexity demands different treatment, while still establishing a maximum period that limits the exercise of punitive power. Its exceptional nature lies in the fact that not only are the time limits of the ordinary procedure extended, but also the time limits for pretrial detention (prisión preventiva), which is obviously detrimental to the interests of the defendant. Said proceedings must be authorized in a duly reasoned manner by the court, either ex officio or at the request of the Public Prosecutor's Office (Ministerio Público), and may be ordered when it is complex due to the multiplicity of facts, the high number of defendants or victims, or when it involves organized crime. The purpose of the authorization is to have longer time limits than those of the ordinary procedure for pretrial detention (prisión preventiva), investigation, resolution of the matter, and the filing and resolution of appeals, in view of the particularly complex nature and characteristics of the case. The exceptional nature of this type of process arises by virtue of the demands of the principle of prompt and complete justice, provided in Article 41 of the Political Constitution, according to which, every person must have access to prompt justice to assert their rights, as well as from the defendant's right to be tried within a reasonable time, established in Articles 25 of the American Declaration of the Rights and Duties of Man, 9.3 of the International Covenant on Civil and Political Rights, 7.5 and 8.1 of the American Convention on Human Rights...' (Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia), ruling 2006-01029, of fourteen hours and thirty-four minutes, of February first, two thousand six. The underlining is ours). Thus, it is a special criminal process ordered by a reasoned resolution, in which, without violating the principle of equality of the various procedural parties, due to the complexity of the case —whether by reason of the multiplicity of facts, number of defendants or victims, or because it involves organized crime— various time limits are extended for the purpose of carrying out the investigation and procedures adequately, the same which, otherwise, under conventional ordinary time limits, could not be carried out due to the difficulty in processing the case, despite the social importance it might hold (See in the same vein, Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia), ruling 2006-01029, of fourteen hours and thirty-four minutes, of February first, two thousand six). Thus, Article 376 of the Criminal Procedure Code (Código Procesal Penal) regulates the general rules or basic assumptions governing this procedure, by establishing that: '...When the proceedings are complex due to the multiplicity of facts, the high number of defendants or victims, or when it involves cases related to the investigation of any form of organized crime, the court, ex officio or at the request of the Public Prosecutor's Office (Ministerio Público), may authorize, by reasoned resolution, the application of the special rules provided in this Title. In the trial (juicio) stage, the decision may only be adopted at the time the trial (debate) is called. When the application of the complex procedure is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations (prescripción) period by half, provided in Article 33 of this Code, shall not apply...' (As amended by Law No. 8146, of October 30, 2001, published in La Gaceta No. 227, of November 26, 2001. The underlining is ours), it being possible to expressly derive from the aforementioned rule that our legislator, through this regulation, provided special treatment, in view of the particularities of the case, which varies according to the stages in which it was ordered. Thus, when the application of the procedure is ordered during the preparatory or intermediate phases, the statute of limitations (prescripción) period continues to run, only that it is no longer reduced, but rather complete. It is not a cause for interruption of the statute of limitations (prescripción) of the criminal action, because the period that had elapsed is maintained, only that it would now run without any reduction. On this matter, the Constitutional Chamber (Sala Constitucional), when resolving an action filed by an individual alleging the violation of the right to be tried within a reasonable time, based on the alleged unconstitutionality of Articles 376, 377, 378, and 379 of the Criminal Procedure Code (Código Procesal Penal) relating to the complex proceedings (tramitación compleja) procedure, established: '... Moreover, the fact that Article 376 in fine states that when the application of the complex procedure is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations (prescripción) period by half provided in Article 33 of the Criminal Procedure Code (Código Procesal Penal) shall not apply, does not violate the right to be tried within a reasonable time. As the plaintiff himself well states, the statute of limitations (prescripción) of the criminal action and the reasonable duration of the process are not the same thing and begin to be calculated at different times; the statute of limitations (prescripción) from the commission of the act, and the duration of the process from when the accusation is individualized against a particular subject. The statute of limitations (prescripción) is the cessation of the State's punitive power caused by the passage of a specific period established by law and serves reasons of legal certainty. The non-reduction of the statute of limitations (prescripción) period by half in complex proceedings (tramitación compleja) crimes is reasonable, in that, in these cases, the difficulty of the proceedings may impede the repression of such criminal activities, the prosecution of which is in the public interest. The statute of limitations (prescripción) period does not coincide with the period to be tried, and the particular circumstances of the case must be assessed in this latter case, such as complexity, the conduct of the parties, and the authorities (sic)...' (Constitutional Chamber of the Supreme Court of Justice (Sala Constitucional de la Corte Suprema de Justicia), ruling 2006-01029, of fourteen hours and thirty-four minutes, of February first, two thousand six. The underlining is ours). Concerning the constitutionality of cited Article 376, it must be clarified that the article itself makes an important distinction between the different stages of the process and the effects that the declaration of complex proceedings (tramitación compleja) produces on them, by expressly preventing the reduction of the statute of limitations (prescripción) periods by half for the investigation and intermediate stages, this action responding to the fact that it is in these early stages where more time is needed for the investigation that these complex crimes require, and with the understanding that there is an express prohibitive regulation contemplated for the trial (juicio) phase. With respect to the reduction of the statute of limitations period in the early stages of the process, as part of the questions that occupy this Chamber, it must be understood that this declaration of complexity converges with some of the interrupting acts contained in Article 33 of the Criminal Procedure Code (Código Procesal Penal), such as the statement in response to charges (declaración indagatoria) or the call to the preliminary hearing (audiencia preliminar), as the case may be, which in turn implies that, as they constitute acts characteristic of the initial and intermediate stages, they were considered by the legislator when giving effect to cited numeral 376, so that, even if they had already occurred as interrupters of the statute of limitations (prescripción), the declaration of complex proceedings (trámite complejo) by itself, and once final, has a direct impact on the reduction of the statute of limitations period by half provided for in cited rule 33, with the full period then running. This is so much the case that, in the case of pretrial detention (prisión preventiva), once complex proceedings (tramitación compleja) are ordered, the time limits are extended to eighteen months, having an immediate effect of extending the pretrial detention (prisión preventiva) time limits. On this matter, this Criminal Cassation Chamber (Sala Tercera), with the panel of Magistrates Doris Arias, Rafael Ángel Sanabria, Ronald Cortés, Rosibel López, and Sandra Zúñiga, in ruling 2013-01758, of ten hours and forty-five minutes, of December third, two thousand thirteen, regarding the declaration of complexity at the trial (debate) stage, revisited the topic of the diverse effects contemplated in rule 376 of the Criminal Procedure Code (Código Procesal Penal), based on the procedural moment in which that declaration occurs, stating, as relevant, that: '...The trial court (tribunal de juicio) declared the matter as complex proceedings (tramitación compleja) in the resolution that called the parties to trial (debate). The foregoing is important because a distinction must be made regarding the application of time limits in cases declared as complex proceedings (tramitación compleja), depending on the procedural moment in which such a declaration is made. On this particular aspect, it is important to note that Article 376 of the Criminal Procedure Code (Código Procesal Penal) establishes the possibility for the Court, ex officio, or at the request of the Public Prosecutor's Office (Ministerio Público), to authorize, by reasoned resolution, the application of the procedure for complex proceedings (tramitación compleja) matters, when the case is difficult due to the multiplicity of facts, the high number of defendants, or any form of organized crime, with a new paragraph being added to the cited rule, through legal reform of October 30, 2001, published in La Gaceta number 27 of November 26 of the following year, where it was indicated that when said special procedure is ordered during the preparatory or intermediate phases, it directly affects the processing time limit for the case, specifically the peremptory statute of limitations (prescripción) period, in the sense that the reduction of the statute of limitations (prescripción) period by half, provided for in Article 33 idem (sic), shall not apply. However, when the authorization to apply the aforementioned procedure is granted in the trial (juicio) stage, the cited exception is not applicable, so in these cases, the governing statute of limitations (prescripción) period in the specific case is the one established by the ordinary procedure, without affecting the interests of the defendant as it is applied reduced by half...' (The underlining is ours). In addition to the foregoing, it is also evident that, in accordance with Articles 148 and 444 of the Criminal Procedure Code (Código Procesal Penal), the declaration of complexity in the preparatory and intermediate stages shall produce the legal effects mentioned above, as a general rule, from the moment the resolution becomes final. This is important, because it is from that date that the effects of the complex proceedings (trámite complejo) begin to be counted, and especially, for determining the statute of limitations (prescripción) period, given that the rule is that it is not reduced, unless the statute of limitations period reduced by half had already elapsed before the declaration. Once the effects of the complex proceedings (tramitación compleja) process are clear, it is necessary to examine the specific case to determine the precise effects that the declaration of complexity produced on the processing of the case file, especially regarding the calculation of the statute of limitations (prescripción) periods. Thus, if one looks carefully, the request for complex proceedings (tramitación compleja) made by the Public Prosecutor's Office (Ministerio Público) was filed before the Criminal Court of the Criminal Jurisdiction of the Treasury and Public Function (Juzgado Penal de la Jurisdicción Penal de Hacienda y de la Función Pública) on February twenty-third, two thousand six, when the case file was still in the investigation stage, since as of that date, the accusation and request for trial (solicitud de apertura a juicio) had not been prepared (See f.7432-7495 of volume XVII of the case file).

Indeed, the proceeding was resolved by the Criminal Court of the Second Judicial Circuit of San José, by resolution issued at three o'clock in the afternoon on March three, two thousand six (Cf. f.7506-7566 of volume XVII), becoming final on June twenty-third, two thousand six, the date on which the appeals filed by the parties were dismissed by the Criminal Tax Court (Cf. f.7604-7610, 7615-7619 of volume XVII of the record). Regarding what was resolved by the aforementioned Criminal Court, it is evident that it weighed the scope of the complex proceeding procedure, since the ruling analyzed, on one hand, the enormous quantity of criminal acts investigated up to that procedural moment (Cf. f.7560 of volume XVII of the record) and on the other, the multiplicity of subjects investigated—thirteen in total—as well as the fact that it was a matter of organized crime, which, due to the volume of evidence, entailed “…complications in the investigative work, the recognition of this singularity in the Costa Rican criminal legal system, which, it is worth noting, is far from being prepared to confront criminal scenarios of dimensions such as those in the case in question, is the institute of Complex Proceeding, which seeks to mitigate that imbalance in relation to ordinary processes and prevent large-scale criminal phenomena, such as the present one, from culminating in impunity; hence, in the present case, the provision of this procedural institute becomes necessary in order to continue and conclude it successfully…” (Cf. f.7564 of volume XVII of the record. The emphasis is ours), so that, from that legal and factual assessment, that same jurisdictional body outlined in the “Por tanto” of that resolution, the scope of the declaration of complex proceeding on the reduction of the statute of limitations period by half, by determining that: “...For the reasons set forth above, and being appropriate in accordance with the provisions of article 376 and following of the Code of Criminal Procedure, THE COMPLEX PROCEEDING PROCEDURE IS HEREBY ORDERED in the present case. A period of one year is established to conclude the preparatory investigation. The reduction of the statute of limitations period by half, provided for in article 33 ibidem, shall not apply in the present matter (pursuant to what is established by Law 8164 of October 30, 2001, published in La Gaceta Number 227 of November 26, two thousand one), nor shall the other procedural consequences established in article 378 ibidem... " (Cf. f.7565-7566 of volume XVII. The emphasis is ours), that ruling later being clarified at the request of the prosecuting entity, insofar as the same Judge of the preparatory stage pointed out, regarding the scope of article 378 of the Code of Criminal Procedure, that: "...The representatives of the Public Prosecutor's Office are correct, and in order to avoid confusion, in accordance with article 147 of the Code of Criminal Procedure, the resolution of this Office of three o'clock in the afternoon on March three, two thousand six, is clarified, by which 'AT THE REQUEST OF THE PUBLIC PROSECUTOR'S OFFICE, THE COMPLEX PROCEEDING PROCEDURE IS ORDERED', visible on folios 5309-5369, which does not imply a modification of what was resolved, so that in the last paragraph and in the 'POR TANTO' thereof, it should be correctly read that in view of having ordered the Complex Proceeding Procedure in the present matter, the effects provided for in article 378 of the Code of Criminal Procedure shall apply; therefore, it is also clarified that when the cited resolution indicates that a one-year period is established to conclude the investigation, it is referring to the rule under comment, the foregoing, of course, in the event of proceeding in due time in accordance with the provisions of article 171 ibidem..." (Cf. f.7589-7590 of volume XVII of the record. The emphasis is ours). In view of the two preceding textual quotes, it is evident that since the investigation stage, the defendants and their technical defense counsel knew the scope of the declaration of complex proceeding in the case at hand, its effects having been extensively developed by the Judge of the preparatory stage in the resolution in question, which became final through ruling 403-06, of one thirty o'clock in the afternoon, on June twenty-third, two thousand six, issued by the Criminal Trial Court, acting as Court of Appeals, which declared without merit the appeals filed by the technical defense counsel of the accused [Nombre01 033], [Nombre01 046] (rest in peace), and [Nombre01 018] (Cf. f.7703-7707 of volume XVII of the record). From this perspective, it is clear that both the defendants and their technical defense counsel were aware, since the issuance of the resolution of three o'clock in the afternoon on March three, two thousand six, of the effects of the complex proceeding; nevertheless, the appeals were aimed at specifically questioning the declaration itself and not precisely its effects. In short, although in the case at hand, the first act interrupting the statute of limitations operated in accordance with article 33 subsection a) of the Code of Criminal Procedure, namely, the reduction of the statute of limitations period by half at the time of taking the investigative statement from the majority of the accused, in the year two thousand four, because the case was being processed as an ordinary process, the truth is that once the case was declared complex, given that the criminal action had not been extinguished for that reason, the statute of limitations period continues to run, without reduction, in accordance with the provisions of the cited article 376 in fine. As things stand, it is clear that the validity of the reducing effect of the statute of limitations period as a result of the ordinary processing of the record was subject to the case continuing to be processed as ordinary; conversely, when the complex proceeding was ordered and became final, in the early stages of the process, the condition reducing the statute of limitations periods varied, in accordance with the cited numeral 376, given that the only exception to that reasoning would have arisen in the event that the fatal statute of limitations period had expired before that declaration, since in that scenario, the extinction of the criminal action due to the statute of limitations would have occurred, considering that circumstance a consolidated legal situation, to which the effects of the aforementioned article 376 could not have been applied. In this manner, the interpretation of eliminating the reducing effect on the statute of limitations period due to the investigative statement having occurred, as contemplated in article 33 subsection a) of the Code of Criminal Procedure, once the declaration of complex proceeding becomes final, in no way violates the principles of non-retroactivity of the law, nor can it be considered an infringement of the principle of legal certainty, since the effectiveness of the norm, by virtue of numeral 129 of the Political Constitution, arises from the entry into force of the reform that added the last paragraph of article 376 of the Code of Criminal Procedure, through Law 8146, of October thirtieth, two thousand one, published in La Gaceta No. 227, of November twenty-sixth, two thousand one, and both the factual framework accused by the prosecuting entity and the investigative statements of the defendants [Nombre01 022], [Nombre 001], [Nombre01 041], [Nombre01 028], and [Nombre01 033] occurred at the end of two thousand four and the beginning of two thousand five, that is, when said law was undoubtedly in force. Furthermore, the final declaration of complex proceeding, dated June twenty-third, two thousand six, was issued when no consolidated legal situation existed, nor had any of the causes accused against the various defendants expired by the statute of limitations, as can be seen from the following table:

As can be observed, for none of the accused, namely, [Nombre01 022], [Nombre02 001], [Nombre01 041], [Nombre01 028], and [Nombre01 033], would the cause have expired by the statute of limitations at the time the declaration of complex proceeding was made, for which reason one could not speak of a consolidated legal situation, since between the investigative statement made by each of them, on different dates in October of two thousand four, and the final declaration of complex proceeding, the period reduced by half contemplated in article 33 of the Code of Criminal Procedure had not elapsed, that is, thirty months, for the crimes of improper bribery in the modality of aggravated corruption; penalty of corruptor for aggravated corruption in the modality of improper bribery and instigation to the crime of aggravated corruption in the modality of improper bribery, and eighteen months for the crimes of illicit enrichment. On this point, it is clear that the declaration of complex proceeding, final since June twenty-third, two thousand six, in accordance with article 33 of the Code of Criminal Procedure, had the immediate effect of counting the period from the investigative statement, but without the reduction contained in the aforementioned article 33 above, but rather under the rules of article 376 of the Code of Criminal Procedure, separate mention having to be made of the legal situation of the accused [Nombre01 018] and [Nombre01 006], insofar as they were subjected to an investigative statement once Law 8422 was in force and, therefore, due to the principle of non-retroactivity of criminal procedural norms, its application from its entry into force on October 29, two thousand four, was appropriate. Certainly, as was studied in judgment 2014-01392, of nine thirty o'clock in the morning, on August fourteenth, two thousand fourteen, from this Third Chamber, in which contradictory precedents issued by this jurisdictional body and those issued both by the former Criminal Cassation Court and by the Court of Appeals, both of the Second Judicial Circuit of San José, are unified, regarding the issue of the non-retroactive application of current procedural norms, its normative foundation resides, firstly in “…numeral 34 of the Political Constitution, which literally states that: 'No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.' In that sense, only substantive laws have retroactive effects for the benefit of the accused, as established in article 12 of the Penal Code, which points out the following: 'Law subsequent to the commission of a punishable act. If after the commission of a punishable act a new law is enacted, it shall be governed by the one most favorable to the accused, in the particular case being judged.' Conversely, our procedural legislation does not establish express provisions on the temporal application of adjective laws. However, in the case of procedural laws, the one that is in force applies, not the one most favorable to the accused. As has been defined both in jurisprudence and doctrine, which are also sources of Law, because procedural norms respond to criminal policy issues and not to a right of the defendant. Likewise, because during the elapsed time, legal situations become consolidated, such as the running of the criminal action in the present case, according to the acts that interrupt and suspend it, in accordance with the procedural laws in force, that is, the principle of legal certainty is safeguarded, and, of course, it will also depend on the illegality being investigated…” (Third Chamber of the Supreme Court of Justice, ruling 2014-01392, of nine thirty o'clock in the morning, on August fourteenth, two thousand fourteen). As well as the constitutional jurisprudence issued in this regard, especially ruling 0351-91, of sixteen o'clock, on February twelfth, nineteen ninety-one, cited in the aforementioned resolution 2014-01392, which, concerning the matter, states: “...it must be added in relation to article 34 of the Fundamental Charter, the following: In the case of a new procedural law, the acts already performed, the consolidated legal situations, as well as the effects that both generate during the validity of the previous law, cannot be affected by a subsequent law…” (The emphasis is ours). Likewise, in accordance with ruling 4397-99, of sixteen hours six minutes, on June eighth, nineteen ninety-nine, also from the Constitutional Chamber: “…public law laws that regulate formal and non-substantive aspects are of immediate application to all processes, including those that are ongoing (…) It must be understood, however, that in the case of a new procedural law, the acts already performed, the consolidated legal situations, and the effects that both generate during the validity of the previous law, cannot be affected by a subsequent law (…) in procedural matters, the applicable norm normally (…) is the one in force at the time the respective act is carried out…”. And finally, it also resolved a discretionary judicial consultation of constitutionality, formulated by the Third Chamber, regarding the retroactive application or not of the provisions relating to the statute of limitations contained in the criminal procedural law, an opportunity in which it was argued: “…laws govern only for the future, this being the only way to conceive them as rules or norms of human conduct or behavior, and as an instrument to standardize or equalize the treatment provided by authorities. Thus, in principle, norms cannot govern past acts if they were not in force at the time of the event, given that the actor could not have adapted their conduct to them. However, a past behavior may eventually be assessed with a rule sanctioned later, a judgment that is subject to a regulated power, meaning that the retroactive application of a norm only proceeds by express mandate of the law, and when this does not infringe the constitutional precept established in its article 34; that is, the retroactive application of the law only proceeds when it does not affect any person, acquired patrimonial rights, or consolidated legal situations, and, on the contrary, it benefits the interested party with that retroactive application (…) 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 performed under its formal validity, prior to its repeal, so that each act is assessed according to the law in force at the time of its performance (…) In order to resolve the consultation formulated by the Third Chamber regarding the application of the principle of the most favorable criminal norm to the rules on the statute of limitations of the criminal action, what it consists of must first be defined, and how national legislation regulates it. Several elements must be noted regarding the statute of limitations of the criminal action—already previously indicated in constitutional jurisprudence—that help to form an idea regarding this legal institute. First, that the regulation of the statute of limitations of the criminal action is a matter of criminal policy adopted by the State through the competent body for this, that is, the Legislative Assembly, so that it has the power to establish the parameters for its regulation. Second, that there is no constitutional right to the statute of limitations, but rather the right to legal certainty, to legality, to effective judicial protection, and to equality, principles that are not harmed by the State as long as the periods established for the reporting, investigation, and prosecution of crimes established by the legislator are reasonable and are defined and limited by law. Third, that the statute of limitations is a legal instrument created for the purpose of declining the exercise of the State's punitive power, which acts as a procedural sanction for the inactivity of the procedural subjects in processes initiated or not (…) the rules on the statute of limitations of the criminal action are of an eminently procedural nature for two important reasons; firstly, because its regulation is located in the Code of Criminal Procedure, a codification that has an eminently instrumental character regarding the application of substantive law, as indicated previously; and secondly, because by itself, the statute of limitations implies a limit on the State's punitive power, which is applied as a (procedural) sanction as a consequence of procedural inactivity within a determined period, as was analyzed, having the consequence of entailing an extinction of the criminal action, which is an institute also of a procedural nature, located in the Code of Criminal Procedure (…) Regarding the principle of the application of the most favorable norm, it is important to reiterate that it is an integral element of due process, and that therefore it has constitutional rank, as this Constitutional Court has repeatedly indicated (among others, see judgment number 0821-98, of sixteen hours fifty-one minutes, on February tenth, nineteen ninety-eight). However, it must be clarified that this principle is of exclusive application to substantive law, and referred only to the defendant, as regulated in international human rights treaties, specifically in article 15.1 of the International Covenant on Civil and Political Rights (…) First: If the principle of the most favorable criminal norm is of exclusive application to substantive law, consequently, it cannot be applied to the rules on the statute of limitations of the criminal action. In this way, the appropriate course is to apply the rules on the statute of limitations based on the procedural system under which it is governed, according to the provisions in Transitorios I. and II. of the Code of Criminal Procedure, provisions that are also of a procedural nature par excellence. Second: Each procedural regime must remain unscathed and indivisible, because the legislator's policy when establishing a legal vision of human acts seeks the uniformity, coherence, and systematicity of the institute, to achieve the aims proposed by the ordinary legislator…” (Constitutional Chamber of the Supreme Court of Justice, ruling 4397-99, of sixteen hours six minutes, on June eighth, nineteen ninety-nine, also from the Constitutional Chamber. The emphasis is ours). Now then, in the specific case, it must be noted that the accused [Nombre01 018] and [Nombre01 006], having been subjected to an investigative statement on November thirtieth, two thousand four for the former (Cf. f. 1166 of volume III of the record) and March seventh, two thousand five for the latter (Cf. f.1984 of volume IV of the record), the three-year statute of limitations period, according to article 62 of Law 8422, was not reduced by half, but rather was counted in full until the next interrupting act, as it involved the entry into force of a procedural law, which constitutes one more reason not to consider the statute of limitations period to have elapsed. Ultimately, given the non-application of numeral 376 of the Code of Criminal Procedure to the defendants [Nombre01 001], [Nombre 028], [Nombre 022], [Nombre 041], and [Nombre 033], as well as the erroneous application of article 62 to the co-defendants [Nombre 006] and [Nombre02 018], the objection of the Public Prosecutor's Office is upheld and the acquittal judgment due to expiration of the statute of limitations for the criminal action 2012-2550, issued in the proceedings by the Court of Appeal of the Criminal Sentence, is annulled, ordering the remand for a new processing as corresponding in law, this Chamber clearly establishing that, in this case, the criminal action is not time-barred.” (The highlights are from the original). It follows from the foregoing that the Third Chamber, on the occasion of the appeal formulated by the Public Prosecutor's Office, decided on the matter submitted for examination by the defense counsel of [Nombre01 006], concluding that the criminal action had not expired by the statute of limitations, because: 1) The declaration of complex proceeding suppressed the reducing effects on the statute of limitations period associated with the procedural acts that interrupted its calculation during the ordinary procedure. 2) The procedural acts that interrupt the statute of limitations period and that have been carried out after the entry into force of article 62 of Law No. 8422, law against corruption and illicit enrichment in public office, are not accompanied by the reduction of the period by half. Similarly, as is evident from the last lines of the transcribed recital, the cassation body ordered that the mandated remand must proceed from that premise (understood as, that the criminal action is not time-barred). We are speaking of a decision that limits our competence, not only because it was adopted for the specific case, but because in proper appellate technique, it is the reviewing body that establishes the scope of the remand it orders. Therefore, given that the claim formulated by Lic. Flores Fallas was definitively resolved in cassation, it must be declared without merit. Notwithstanding the foregoing, this Chamber permits itself to indicate that indeed, in the case of the defendant [Nombre01 006], the criminal action is not time-barred, since regardless of the interpretation that may be made of the last paragraph of article 376 of the C.P.P., the truth is that this defendant was subjected to an investigative statement when article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, was in force, which provides: “Statute of limitations for criminal liability. The criminal action regarding crimes against the duties of public office and those provided for in this Law, shall expire by the statute of limitations in the manner established by applicable legislation; however, the following rules shall apply: a) Once the statute of limitations has been interrupted, the periods established in article 31 of the Code of Criminal Procedure shall begin to run again for a new period, without any reduction. b) In addition to the grounds provided for in article 33 of the Code of Criminal Procedure, the 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 that are related to the corresponding crime, whether the ruling is issued in a judicial or administrative proceeding.” (The highlight is not from the original). As has been explained in previous sections, it is extracted from subsection a) of the norm that, in the case of crimes against the duties of public office and those provided for in Law No. 8422, upon the occurrence of any of the acts indicated by the Code of Criminal Procedure as interrupting the calculation of the statute of limitations period, the count begins to run again in full, which constitutes an exception to article 33 of the aforementioned Code. This is an article applicable to the procedural acts performed as of its entry into force, whether they take place within a new procedure or one that was already underway, the foregoing insofar as the rules on the statute of limitations, according to the Constitutional Chamber, are of an instrumental nature (in a similar sense, cf. resolution numbers 5305-1996; 4397-99 and 351-1991, all from the Constitutional Chamber). That said, note that the trial court convicted [Nombre01 006] for a crime of illicit enrichment, provided for and sanctioned in article 346 subsection 3) of the Penal Code with a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years (art. 31 subsection a) C.P.P.). Now, this defendant appeared to render an investigative statement on March 7, 2005 (f. 1984 to 1986 front, volume VI), a date on which the calculation of the period was interrupted, which, by virtue of the article 62 in force at that time, began to run again and for the same three-year period, without any reduction, until March 7, 2008, a date by which another interrupting act had already occurred, namely, the resolution that called for a preliminary hearing—September 10, 2007, f. 8,452 front, volume XX—. From that day, the period ran again without any reduction, until September 10, 2010, a date by which it had been interrupted again, by means of the scheduling of the debate. After this, the issuance of the judgment by the trial court (No. 167-2011 of April 27, 2011) occurred and subsequently, the issuance of the judgment of this court, with a different composition (No. 2012-2550 of December 21, 2012) and the cassation judgment (No. 2014-1847, of 11:20 hours on November 21, 2014), procedural acts that, in accordance with article 33 of the Code of Criminal Procedure, also interrupt the calculation of the statute of limitations period. In summary, we agree with the Third Chamber in that it concluded that in the case of [Nombre01 006], the criminal action has not expired by the statute of limitations, since the period for this to happen has not elapsed without a new ground for interruption having previously operated. For all the foregoing reasons, the ground is rejected.

XI.- Given the existing relationship, this Chamber will jointly resolve the fourth ground for form and point 2) of the fifth ground for form. Fourth ground for form. Injury to the rules of in dubio pro reo, because the court, in addition to substantially modifying the accused facts, reached a conclusion of certainty that is neutralized by the reasoning of the dissenting vote itself. Lic. Flores Fallas reiterates that the principle of correlation between accusation and sentence was violated, contravening what is stated in articles 9, 363 subsection b) and 369 subsection d), both of the Code of Criminal Procedure, an aspect that is sanctioned with nullity. For the appellant, the problem with the sentence lies in the reconstruction of the accused facts that the trial court carries out to attribute to the defendant a single act of illicit enrichment with a payment of a gift in three installments. He claims that it is impossible to know which of the three gifts presented to [Nombre01 006] was in consideration of his office, and to overcome that obstacle, the majority vote recharacterized the facts attributed to [Nombre01 006] as a single crime with three deliveries of a gift, without assessing that the conduct attributed to him, of acceptance of a presented gift, makes the foregoing unviable, since each acceptance of a gift constitutes an independent conduct and must describe all the elements of the criminal type, which the accusation does not do. Likewise, even if all the requirements of typicality could be considered fulfilled in the case of one of the acceptances of a gift presented to [Nombre01 006], it is unknown which of the three should be related to fact number 201. It is further added that if it were possible to link this fact with one of the three descriptions of acceptance of a presented gift, it would result that the other two acceptances that were described would be atypical and the defendant would have to be acquitted for their commission. Along these lines of reasoning, the appellant points out that the surviving conduct, if it indeed maintains the requirements of typicality, cannot be proven. The evidence demonstrates that [Nombre01 006] accepted a gift that was presented to him and, therefore, it was not the materialization or delivery of a gift that had been offered and accepted previously.

That said, it is also not possible to rule out that the gift may have been offered for reasons other than those provided for in numeral 346, subsection 3) of the Penal Code, such as, for example, for [Nombre01 006] to perform an act proper to his functions, or to omit performing it, to delay it, or to perform one contrary to his functions, or that it was a gift for having performed or omitted an act in his capacity as a public official. It could also be that the gift was given because [Nombre01 006], in abuse of his position, forced or induced [Nombre01 041] or [Nombre01 078] to give or promise it. The foregoing hypotheses lead us to different possibilities and criminal charges, in which the active subject may end up receiving economic advantages. Attorney Flores Fallas insists that by varying the factual framework and reclassifying the facts, the court is not applying Article 9 of the C.P.P., but rather trying to overcome the problem of the accusation that describes three independent facts that do not contain the essential elements of the criminal offense of illicit enrichment (enriquecimiento ilícito). For this reason, the in dubio pro reo principle was also violated. At this point, it is important to add that in the presentation of the fourth ground, the appeal is inconclusive, as a folio seems to be missing (see the last lines of the front of folio 17,126, volume XXXVI). For that reason, and given that the challenge raised by attorney Nazira Merayo Arias is a reiteration of the one elaborated by attorney Flores Fallas, this court has allowed itself to complete the description using what was stated by attorney Merayo Arias on the front of folios 172,320 and 172,321. In these folios, it is insisted that the accusation did not describe the elements of the criminal offense and that, therefore, the trial court modified the imputed facts, affirming that it was a single gift in three installments (tres tractos) and not three independent crimes. Likewise, the defense reiterates that in the face of doubt, what the a quo should have done was not to correct the accusation, but to acquit its defendant. Fifth ground regarding form. Injury to the substantiation of the judgment, for violating the principle of derivation. The judgment incurs the defect of lack of substantiation, violating what is prescribed in Articles 142, 363 subsection b), and 369 subsection d) of the C.P.P. According to the defense, the defect appears in several points, with number 2) being the one addressed here. 2) Gift paid in three installments (tres tractos) given that the accusation never described this behavior, but rather three independent crimes without elements of the charged criminal offense. In this section, the appellant alludes to Considerando XII, titled “Description of the conduct of the accused [Nombre 006],” where the court stated: “190) The defendant (encartado) [Nombre01 041] and the indictee (indiciado) [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre02 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre02 006] while he remained in the exercise of his public office, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him. Said gift was paid in three installments.” It accuses what was previously raised in its appeal, specifically, that the trial court deemed a circumstance not described in the accusation to be proven, namely, that the gift was paid in installments. According to what the court explained, by virtue of the most favorable application and interpretation of the law to the defendant (Article 9 of the Criminal Procedure Code), the three independent crimes of illicit enrichment (enriquecimiento ilícito) had to be reclassified into a single one. However, this explanation by the court, in addition to being insufficient, harmed [Nombre01 006]. The court did not assess the issue of concurrence of offenses, nor the fact that the accusation had opted for the formula of “acceptance of a presented gift,” which means that by the presentation of each gift and its correlative acceptance, an independent typical conduct occurred. As facts 203, 208, and 210 of the accusation are described, a real concurrence would be configured and therefore, the description of each fact must meet all the requirements of the offense, a requirement that the court tried to evade with the modification it made, giving the accusation a twist that affected the right to defense, because this procedural party, in its conclusions, presented the issue as a problem of atypicality, with the court surprisingly changing the facts in the face of what it considered a “gap.” It reiterates that the Public Ministry did not describe that the presentation of gifts was “in consideration of the office,” so each accused fact, independently, did not contemplate the essential objective elements, given that furthermore, the gift, in the way it is described in facts 203, 208, and 210, is an element common to several criminal offenses, such as bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for a completed act, the penalty for the corrupter, and illicit enrichment (enriquecimiento ilícito). Upon confirming the absence of the description of essential elements of the criminal offense in Article 346, subsection 3) of the Penal Code and given that they are independent facts, it should have been concluded that the three accused behaviors were atypical.

XII.- The defense is not correct. Regarding the arguments related to the lack of correlation between accusation and judgment, and the inclusion in the facts accused by the requesting body of the typical elements of the crime of illicit enrichment (enriquecimiento ilícito), the appellant must abide by what is indicated in Considerando VIII.- of this resolution. As was explained then, those issues were heard and resolved by the Third Chamber, rejecting the arguments that attorney Wilson Flores raised in that direction. Regarding the motive or purpose for which the gifts were presented to [Nombre01 006], namely, whether they were, for example, in exchange for him performing an act proper to his functions or one contrary to his duties, or for not doing or delaying an act proper to his functions, or if it was as retribution for a completed act without prior promise, it is sufficient to reiterate that those purposes do not form part of the applied criminal offense, whereby it is irrelevant that this purpose could not be demonstrated or categorically ruled out. In fact, if this possibility had been glimpsed, it is probable that [Nombre01 006] would not have been charged with a residual crime but with any other that specifically and precisely regulated the matter. By way of example, in bribery (cohecho propio), the public official who admits the gift or its promise knows that it is intended for him to do an act contrary to his duties, or to not do or delay an act proper to his functions. Regardless of whether those acts are performed, what is important is that the official's action is tainted by this purpose, as is the conduct of the person who delivers or promises the patrimonial advantage. The same occurs in other criminal offenses, for example, acceptance of gifts for a completed act, or aggravated corruption. These are special criminal offenses compared to illicit enrichment (enriquecimiento ilícito), where the configuration of one of the former may suppose or comprise the realization of the latter, but not the reverse. In the case of Article 346 subsection 3) of the Penal Code, it is sufficient that the public official admits the gift that was presented or offered to him in consideration of his office while he remains in the exercise of the position, which has been deemed proven here, since as extracted from the statement of proven facts, [Nombre01 006], in his condition as Deputy Chief of the Switching Department Directorate of the ICE and while he remained in the position, accepted money coming from [Nombre01 060] that was transferred to him through [Nombre01 058]. It is reiterated that the search for other additional purposes is not a subjective element additional to the intent contemplated in this criminal offense, whereby it is irrelevant that there is no proof thereof. Based on the foregoing, the ground is dismissed.

XIII.- Fifth ground regarding form. Injury to the substantiation of the judgment, for violating the principle of derivation. The judgment incurs the defect of lack of substantiation, violating what is prescribed in Articles 142, 363 subsection b), and 369 subsection d) C.P.P. According to the defender, the defect appears in several points, which, for the sake of expository order, this chamber proceeds to resolve separately. 1) Condemnation for personal costs (payment of professional fees corresponding to the Public Defense) imposed on [Nombre01 006], without evidentiary basis regarding his solvency. On the issue of costs, the judgment stated: “Given the proven economic solvency of the convicted persons [Nombre01 022], [Nombre01 001], [Nombre01 046], and [Nombre02 006], who opted for the legal advice of lawyers from the Public Defense of the Judiciary, in accordance with Articles 152 of the Organic Law of the Judiciary and 265 of the Criminal Procedure Code, each must pay the fees of the professionals who have assisted them during this process. Item set at the sum of TEN MILLION COLONES which covers their professional performance from their appearance until the issuance of this ruling, not the eventual appeals and other procedures that after its issuance are required. Said sum must be paid by each of the accused in favor of the Judiciary within the fifteen days following the finality of the ruling, with the consequent seizure and auction of their assets in the event of non-compliance with this obligation.” In this regard, the defender argues that the trial court did not explain how it reached the conclusion of the effective economic solvency of [Nombre01 006], which, although it does not affect the personal freedom of the accused, does affect his patrimony.

XIV.- The claim is admissible: From folio 16,342 to the front of folio 16,343 of volume XXXIV, the trial court addressed the issue of costs, stating: “C) Personal costs: unanimously, the costs of the process regarding the exercise of criminal action are borne by the defendants. Given the proven economic solvency of the convicted persons [Nombre01 022], [Nombre01 001], [Nombre01 046], and [Nombre02 006], who opted for the legal advice of lawyers from the Public Defense of the Judiciary, in accordance with Articles 152 of the Organic Law of the Judiciary and 265 of the Criminal Procedure Code, each must pay the fees of the professionals who have assisted them during this process. Item set at the sum of TEN MILLION COLONES which covers their professional performance from their appearance until the issuance of this ruling, not the eventual appeals and other procedures that after its issuance are required. Said sum must be paid by each of the accused in favor of the Judiciary within the fifteen days following the finality of the ruling, with the consequent seizure and auction of their assets in the event of non-compliance with this obligation. The co-accused [Nombre01 001], [Nombre01 022], [Nombre01 046], and [Nombre01 006], have intervened in this process with legal counsel provided by the State through the Public Defense. In relation to the costs of the process, numeral 265 of the Criminal Procedure Code provides the following: “In every process, the State shall cover the expenses related to the accused and the other parties who enjoy the benefit of litigating without being charged for them. When the accused has economic solvency, he shall pay the Judiciary for the services of the public defender or any other he has received. For this, the procedure established in the Organic Law of the Judiciary, regarding the public defender, shall be followed. The payment for the official translator or interpreter is exempted from this duty.” In this process, it has been proven that the three cited accused are persons with economic solvency: they have held important, highly remunerated public positions, they have managed companies and bank accounts with high sums of money, they have had valuable movable and immovable property registered in their name, made multiple trips abroad, as is the case of [Nombre01 022] and [Nombre01 046]. In the case of [Nombre01 001], it has been demonstrated that he donated valuable property such as a vehicle and cell phone to his sister [Nombre01 075], that he transferred vehicles registered in his name for millionaire sums, and that he acquired valuable property such as a boat, livestock, agricultural equipment, a hotel, etc. Given the things and the reasons stated, the co-accused [Nombre01 001], [Nombre01 022], and [Nombre01 046] must be ordered to cover the State for the public defender services provided to them, with the Court estimating that for such item they must cover the sum of TEN MILLION COLONES EACH which covers the professional performance of each of their defenders from appearance until the issuance of the ruling. In accordance with numeral 152 of the Organic Law of the Judiciary, the setting of fees for the participation of the public defense is established by the judge in accordance with the obligation of the accused to pay the Judiciary for the services of the public defender. For the determination of the set sum, the Court has taken into consideration that Defender Wilson Flores, defender of [Nombre01 006], was appointed on August 8, 2006, according to the record on folio 6449 of volume XV of the investigation file; attorney Yamura Valenciano, public defender of [Nombre01 001] and [Nombre01 022], was appointed on February 27, 2008, as stated on folio 9163 of volume XXI of the investigation file; and that attorney Hugo Santamaría, defender of [Nombre01 046], was designated as such starting July 2, 2008, as stated on folio 9255 of volume XXI of the investigation file. In addition to the above, it has also been taken into consideration that the trial stage alone, which required uninterrupted intervention by the public defense, lasted more than a year and that for the year 2010, the base salary of a public defender was 821,000.00 and 854,200.00 colones in the first and second semester respectively, to which must be added a series of items such as annuities, prohibition, and others, which at minimum double the base salary, so that the set sum of ten million corresponds to the salary of one semester of a public defender, but which is considered reasonable to be covered by the cited accused in favor of the Judiciary. Said amounts must be paid within the fifteen days following the finality of the ruling, with the consequent seizure of assets and auction in the event of non-compliance with said obligation (Article 153 of the Organic Law of the Judiciary).” (The highlighting is not from the original). From the transcribed text and, particularly, from the highlighted lines, it is extracted that the a quo ordered four accused to pay costs (professional services provided by the public defense), namely, [Nombre01 022], [Nombre01 046], [Nombre01 001], and [Nombre01 006]. However, to conclude that these were persons of economic solvency, it analyzed only the situation of the first three, leaving what was provided regarding [Nombre01 006] without any substantiation. Thus, it affirmed that the three accused have economic resources as they occupied important, highly remunerated public positions, managed companies and bank accounts with elevated sums of money, and registered valuable property in their name. Regarding [Nombre01 022] and [Nombre01 046], it alluded to their multiple trips abroad, and regarding [Nombre01 001], it mentioned the transfers of property he made to his sister. So clear is it that the situation of [Nombre01 006] was not considered in this analysis that further down, the a quo excluded his name, citing only that of the other three accused. It stated: “… the co-accused [Nombre01 001], [Nombre01 022], and [Nombre01 046] must be ordered to cover the State for the public defender services provided to them…”. Therefore, the defender is correct in pointing out that the trial court did not carefully assess the case of his client, a person in relation to whom it cannot be asserted, or at least not without proper substantiation, that he has the characteristics attributed to the other accused. By way of example, see that according to the same judgment, it speaks of an accused who was an electrical engineer at the ICE and later, at the time of the events, Deputy Chief of the Switching Department Directorate of that same institution, with a salary of approximately 400,000 colones per month (cf. declaration of [Nombre02 153], hierarchical superior of [Nombre 006], f. 14,809 front, volume XXX and f. 16,259 front, volume XXXIV, where the trial court alluded to this point). Likewise, in the appealed judgment, this defendant is not attributed with the management of companies and bank accounts with “elevated sums of money,” repeated trips abroad, or the registration of valuable property, logically, beyond those related to the criminal activity that is being subjected to judgment. In summary, given that the condemnation for costs imposed on [Nombre01 006] lacks substantiation, the ground is declared with merit, the judgment is annulled regarding this extreme, and a retrial before the trial court is ordered so that, with a new composition, it proceeds to resolve what is appropriate.

XV.- Fifth ground regarding form. Point identified with number 3). In this section, the defense claims that bearer certificates were presented to the accused, however, the majority were used by [Nombre01 197] and [Nombre01 199]. After alluding to proven facts numbers 197, 198, and 199, the appellant affirms that the accused [Nombre01 006] was attributed with having received the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11, however, according to the documentary evidence, specifically the seizure of banking information, the person who received said certificates is Mrs. [Nombre01 197], who proceeded to constitute the time savings certificate No. 16102460220109801. The trial court itself, in the section called “B.2. Delivery of second gift. Analysis of facts 208 and 209,” only describes the participation of [Nombre01 197]. Given this, the defender questions how, if Mrs. [Nombre01 197] abstained from declaring, one can reach the conclusion that the certificates were presented to Mr. [Nombre01 006]. From this point, the challenger transcribes several extracts from the ruling, related to the analysis of those facts 208 and 209 and in which the a quo concluded that it was [Nombre01 197] who endorsed the certificates. If this is so, that is, if a person other than [Nombre01 006] is pointed out, it is only by violating the principle of derivation that this accused can be attributed with having received those bearer certificates. Regarding the third gift received by [Nombre 006], attorney Flores Fallas states that the same situation occurs. In the first place, the challenger proceeds to transcribe what was stated by the trial court in its majority vote, in the section called “B.3 DELIVERY OF THIRD GIFT. ANALYSIS OF FACTS 210” (cf. folios 16,269 to 16,273 of the judgment, volume XXXVI), to then affirm that in that analysis, “…it is striking that the bearer certificates presented and used by [Nombre01 199], [Nombre01 197], are attributed to [Nombre01 006] in the proven facts, but again, how does the court reach that conclusion, if the trial court itself attributes those certificates to third parties who are not [Nombre01 006]. To finalize, the court has no certainty of the signature they relate to [Nombre01 006], by stating: “certificate (Identificacion1 and its interest coupon presents on the reverse side the apparent endorsement of [[Nombre0 006]”, this because no comparison of the handwriting sample was ever carried out with the signature of [[Nombre0 006]…” (f. 17,144 front, the transcription is literal). Attorney Flores Fallas understands that if the bearer certificates are presented and used by [[Nombre0 199] and [[Nombre0 197], it is—in his view—unknown how the trial court managed to attribute them to [[Nombre0 006], given that, furthermore, since no expert study was performed, there is no certainty that the signature appearing on the endorsement of certificate Identificacion1 is that of this accused.

XVI.- The argument is rejected. That the destination of some bearer certificates was arranged by [Nombre01 199] and [Nombre01 197], or that an expert study was not performed on the signature appearing on the endorsement of certificate Identificacion12, are not circumstances that cast doubt on the conclusion of the trial court, in the sense that [Nombre01 006] accepted an advantage of economic content coming from [Nombre01 060], which was presented to him in consideration of his office. In that sense, note that [Nombre01 197] is not a person unrelated to the accused. Quite the opposite, she is his wife. [Nombre01 199], for her part, was hired to decorate a home for the couple and, according to her declaration, she received two bearer investment certificates from [Nombre01 197] as payment for her work. Finally, even though an expert did not examine the signature contained in the endorsement of certificate Identificacion12, the conclusion of the trial court, in the sense that it is that of the accused, does not violate the rules of sound criticism, since it is extracted from the multiple evidentiary elements (of an indiciary nature) weighed integrally and harmonically in the judgment. In order to delve deeper into the previously stated arguments, the indications considered by the a quo from folio 16,263 front onward will be examined. Regarding the first five investment certificates accepted by [Nombre01 006], for $10,000 each, for a total of fifty thousand dollars ($50,000), plus their interest coupons totaling one hundred eighty-two dollars and ninety-five cents ($182.95), of which three were used to buy at the dealership Nombre74 the Suzuki brand vehicle, Grand Vitara XL, series , chassis , engine H27A105387, model 2002, and the other two to be invested in the brokerage firm of BCT Valores, an investment that was later liquidated with a check in favor of [Nombre01 197] (proven facts 192 to 196), the appealed ruling weighed the expert reports prepared from the documentation provided by Vetrasa, which accounts for the use, by the accused [Nombre01 006], of investment certificates numbers Identificacion16 Identificacion06 Identificacion17 coming from [Nombre01 058] and whose funds come from [Nombre01 060], to buy at said dealership the brand vehicle Nombre04, Grand Vitara XLK, license plate number [Valor 010]. In addition to these reports, abundant documentation accounting for this transaction was analyzed, e.g., documents where Nombre74 recorded having received from [Nombre01 006] the aforementioned certificates, as well as their respective interest coupons, the vehicle purchase invoice, and the public deed where the transfer of the vehicle to the accused was made, a vehicle that was finally registered in his name (f. 16,263 and 16,264 front). In relation to the other two investment certificates (Nos. Identificacion07 and Identificacion08 also for $10,000 each), several expert reports were examined from which it is extracted that they were invested by [Nombre01 006] in account No. 2489 with BCT Valores Puesto de Bolsa S.A., together with their interest coupons ($36.59) and a cash contribution of $8,100.00, an investment that was liquidated on August 19, 2002, with check No. 3506-6 for $29,099.06, drawn in favor of [Nombre01 197], his wife, with the apparent endorsement of the beneficiary being recorded on the reverse side (f. 16,264 front and 16,265 front). Likewise, abundant documentary evidence that allows [Nombre01 006] to be related to the facts was examined in depth. This involves, for example, the original investment certificates and their interest coupons, where one can read, on the reverse side, the name of [Nombre01 006] and his identification number (evidence CED01), as well as other documents delivered by the brokerage firm (evidence No. 349), where there is an official communication from BCT stating that said entity received from [Nombre02 006], on January 11, 2002, deposit certificates No. Identificacion07 and No. Identificacion08 for $10,000.00 each, and their respective coupons for $36.59; and an additional $8,100.00 was received for a total of $28,173.18 which were invested in the business fund in dollars managed by BCT. Also, that the investment was liquidated on August 19, 2002, for a total of $29,099.06 and check No. 3505 was drawn in the name of [Nombre01 197]. A copy of the receipt for $28,173.18 in the name of [Nombre01 006] was also attached to the respective report (f. 16,265 front of the judgment). The same occurs with the second transfer of funds to this accused. As was taken as proven, [Nombre01 006] admitted three bearer investment certificates for 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, which he then delivered to his wife, who proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days (proven facts 197 and 198). Regarding this transfer, the trial court conscientiously studied all the evidence that allows the transit of money from [Nombre01 060] to the hands of the accused to be reconstructed, as well as the destination he gave to such funds (f. 16,265 to 16,269 front). Even though the three investment certificates involved were endorsed in favor of Banco Popular with the identification number of [Nombre01 197], and it was she who proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98), this does not prevent establishing with certainty that the certificates in question were accepted by [Nombre01 006]. The foregoing because, as the appealed judgment correctly indicates, [Nombre01 197] is the wife of this accused; because [Nombre01 006] received funds from [Nombre01 060] on several occasions, and previously had placed monies in the name of [Nombre01 197] and, above all, because he, and not his wife, worked at the ICE and had contact with the company [Nombre01 091]. Regarding the third delivery, we have the same situation. From folio 16,269 onward, the a quo gave the reasons why it considers a proven fact that the accused received the last investment certificates indicated there (namely, Nos. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15 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 $100.08 (proven fact number 199). In the case of this transfer of funds, the public defender centers his disagreement on certificate number Identificacion12 indicating that it was not proven through an expert examination that the signature on the endorsement is that of his client. In this way, he opted to set aside a whole series of probative elements that were thoroughly weighed by the a quo in an integral manner, which, even without the evidence he misses, allow the foregoing to be affirmed. In addition to the original investment certificate and its interest coupons, which on the reverse show an endorsement where the name of [Nombre01 006] and his identification number can be clearly read (evidence CED02.5), the trial court also considered expert report No. 068-DEF and evidence No. 611, from which it is extracted that [Nombre01 006] was the one who delivered said certificate to the Brokerage Firm of BCT Valores S. A., with interest coupons for $24.89 and cash for $1,200.00 for an investment that was liquidated on May 29, 2003, with check No. 371-9 for $11,353.86 drawn in the name of [Nombre01 197], which in turn, was deposited in account No. [Valor 057] of the beneficiary at Banco Popular. This was also confirmed with the banking evidence supplied by BCT Valores Puesto de Bolsa S.A. (No. 349), where it is recorded that cash of $1,200.00, investment certificate No. Identificacion12, and interest coupons for $24.89 were received from [Nombre01 006], sums that were invested in the dollar liquidity fund, also recording that the cited investment was canceled on May 29, 2003, drawing check No. 371 in favor of [Nombre01 197], for $11,353.86. In addition to this, there is a copy of the check and on its reverse side one can clearly read the name [Nombre01 197] and the identification number of [Nombre 197], an account number ( [Valor 036] ), and the cashier's stamp of Banco Popular dated May 29, 2003. Said account turned out to be a checking account that belongs to [Nombre01 197] and that was opened at Banco Popular. These are compelling and categorical indications, which converge in an unequivocal conclusion: [Nombre01 006] received the bearer investment certificates originating from [Nombre01 058].

and fed by [Nombre01 060], a conclusion that is not modified one iota just because there is no graphoscopic study regarding the signatures of the endorsements on one of those certificates. We reiterate, this was issued under the same conditions as the others, they all have the same origin and it was [Nombre01 006] and not his wife who worked at ICE and had contact, by virtue of his job, with the heads of [Nombre01 091]. In addition to this, the leading role of Mrs. [Nombre01 197] and the absence of the aforementioned expert examination regarding the endorsement also does not introduce any doubt as to what happened, since the investment certificate number Identificacion12, like all the others received on this occasion, were delivered directly to [Nombre01 197] or entered her estate in other ways. As already stated, [Nombre01 006] delivered the certificate Identificacion12 together with the interest coupon [adding cash from his own funds for a total of one thousand two hundred dollars ($1,200)] to BCT Valores, with the objective of making an investment in the dollar liquidity fund, managed by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, by check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was issued in favor of the defendant [Nombre01 006]'s wife and was deposited into account No. [Valor 057] of the beneficiary [Nombre01 197] at Banco Popular y de Desarrollo Comunal. Certificate No. Identificacion14 he delivered together with the interest coupon for $25.02 to his wife [Nombre01 197], who proceeded to endorse and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. Finally, certificates No. Identificacion13 and No. 2240020056299, [Nombre01 006] also delivered—together with the respective interest coupons—to his wife, who gave them to Mrs. [Nombre01 199] with the objective of paying for the decoration of the couple's residence and the coupons were deposited into her account at Banco Popular y de Desarrollo Comunal (proven fact number 199). In summary, although we are talking about transactions in which [Nombre 006] does not formally appear, it is evident that they are advantages of economic content accepted by him, not by his wife. We reiterate, it was [Nombre01 006] who had a relationship with ICE and with [Nombre01 091], not [Nombre01 197], and furthermore, at least with respect to these facts, it is not novel that the illicit funds ended up in the bank accounts of the defendant's wife, or at her disposal. Finally, regarding the investment certificates that [Nombre01 199] endorsed and deposited into her account, in addition to abundant documentation, there was the testimony of this person, who categorically indicated that she received them from [Nombre01 197], as payment for the decoration services of a residence that the couple (meaning, [Nombre01 006] and [Nombre01 197]) built in Turrialba. In summary, it is evident that the judgment is extensively reasoned. Not only because it covers all evidence, but because it derives from it, in accordance with the rules of sound human understanding, that [Nombre01 006] accepted the gift delivered to him by [Nombre01 041] and the same [Nombre02 028], compensation that was deemed proven and which the Third Chamber classified as a single gift in three installments. This court, which departs from the discussion of whether it was one gift in three installments, or three gifts presented and accepted, since this matter was settled and defined in cassation, meaning there is no competence to address it, harbors no doubt about the convicted person's receipt of said funds. It was not only proven that the investment certificates were generated with money coming from [Nombre01 060] that entered the account of [Nombre01 058]., but also that they came into the hands of [Nombre01 006] and he proceeded to dispose of them. In some cases, directly, e.g., when buying a vehicle, or when investing in BCT Valores Puesto de Bolsa S.A., in others, through his wife, who was the one who disposed of the assets, either by depositing them in her accounts, or by paying for other services contracted by the couple to third parties (thus, to [Nombre01 199]). But in any case, the defense's theory that third parties are the ones who dispose of the investment certificates and that, therefore, there is no link whatsoever between these and the defendant is discarded. For the foregoing reasons, the claim must be dismissed.

XVII.- Fifth ground on appeal for procedural error. 4) The Court concluded that [Nombre01 006] signed a sole-source certification (certificado de unicidad), without the document that allows such an assertion to be derived being incorporated. According to the appealed judgment, the defendant [Nombre01 006] signed a sole-source certification (certificado de unicidad). For the court, even though the board of directors had the final say, the truth is that the sole-source certification (certificación de unicidad) was highly relevant, as it was based on specialized technical criteria, and besides, there was confidence in the work that [Nombre01 006] performed, as stated by [Nombre01 153], his direct supervisor. For the complainant, such assertions are questionable, as there is no document whatsoever that allows their demonstration. He argues that the point is fundamental, since the person who signed the certifications was [Nombre01 153], making his testimony potentially even suspicious. Therefore, his statement could not be used to conclude that [Nombre01 006] signed that document.

XVIII.- The claim cannot succeed. Contrary to what the defender posits, the trial court relied on abundant evidence to affirm the foregoing, and the defect being reproached is not present. As extracted from folio 16.273 onwards, [Nombre01 006] was head of the Switching Department (Departamento de Conmutación) at ICE. As such, he had among many other functions, that of determining the needs to be satisfied in switching matters. He had a team of technicians under his command, who determined the equipment needs, and based on this, a document was prepared that, according to [Nombre01 156], became a requirement, and it was [Nombre01 006]'s responsibility to sign the certification of the supplier's necessity. Subsequently, he would take the award recommendation to the ICE Board of Directors so that it could definitively resolve whether or not to call for the tender. This is why, according to the lower court (a quo), the sole-source certification (certificación de unicidad) that this defendant signed was relevant, as it was based on specialized technical criteria, and furthermore, as [Nombre01 153] pointed out, there was confidence in his work. The judgment adds that [Nombre01 006] was also responsible for setting up equipment, executing contracts, and evaluating performance, making him a key official within the award procedure, both internally for ICE and for the companies seeking to participate. There were several direct contracts awarded to [Nombre01 091] in which this convicted person participated, of special interest No. 112765, for the expansion of the [Nombre01 091] exchanges, which was awarded to that company in session No. 5404 of May 14, 2002, with [Nombre01 006] being the administrator of that contract, for an amount of $109,457,401.22. For the majority vote, it is based on the sole-source certification (certificación de unicidad) that the corrupters presented a gift to [Nombre01 006], and the public defender claims that said certification was never incorporated into the process and that, therefore, there is no document whatsoever that allows what was indicated to be demonstrated, and also that [Nombre01 153], for signing the cited certifications, should have been considered a suspicious witness, on whose account the lower court could not rely to conclude that [Nombre01 006] signed the cited certification. For this chamber, as anticipated at the beginning of this recital (considerando), the appellant's appreciations are erroneous. Firstly, the judgment cited documentary evidence from which the role that [Nombre01 006] had in the direct contract No. 112765 is extracted. We refer to evidence No. 740, consisting of report GESE 1530, 6053-34633-2005, dated July 11, 2005, from the Support Area, Security Management, regarding the cited agreement. Based on the documentation related to this contract, this report was prepared which, as relevant, states: “Upon observing that the documents for ‘Certification of Supplier Sole-Sourcing and Technical Justification of the Project for the Acquisition of Equipment and Services for the expansion of the [Nombre 091] 1000 E10 exchanges for the period 2002-2003’, were signed by Eng. [Nombre01 006] as [...], Eng. [Nombre02 153], who served as Director of UENDEP at the time of the signatures of the mentioned documents, was consulted as to whether Eng. [Nombre01 006] had his authorization to sign in that capacity. In this regard, Eng. [Nombre01 033] stated that he believed that since Eng. [Nombre01 006] was the contract administrator, he could sign the formula of authenticity (fórmula de autenticidad). He further affirmed that due to a trip abroad, on account of his duties, he left Eng. [Nombre01 006] in charge of the [...]” (Name67. 3.632 and 3.633 front, volume IX, which we have examined). This evidence was analyzed in the judgment, concluding that, contrary to what the defense for [Nombre01 006] believed, it was legitimate, at least in the section related to the cited contract, and is therefore useful to establish “…what documents were collected, the course of this contract through the different ICE departments, and the coordination action exercised by the Switching Process (Proceso de Conmutación), with the provision of different data related to each of those actions and the documents that were signed by the defendant [Nombre01 006], who served as [...].” (f. 15.264 front, volume XXXI). Similarly, at folio 16.258 front of volume XXXIV, reference was made to the contract related to contract No. 112765, visible in Annex 10 of documentary evidence No. 598 (Report 297-DEF-540-04/05) and concerning the expansion of the [Nombre 091] 100 E 10 B exchanges. As verified by this chamber upon examination of the cited documentation, the nineteenth clause states the appointment made by ICE of engineer [Nombre02 006] as general administrator of the contract, with the obligation to “…supervise this contract, coordinate everything related to its correct execution, and ensure the perfect fulfillment of each and every one of the obligations indicated in its clauses, Name02 as manage and facilitate the coordination of all technical and administrative aspects that may be required…” (p. 24 of the contract, visible in Annex 10 of report No. 297-DEF-540-04/05, file No. 2, evidence No. 598). Therefore, it is not true, as the defense claims, that the intervention of [Nombre01 006] was derived exclusively from the statement of [Nombre01 153], a person who, in any case, gave a statement that adds very little to the foregoing. This witness indicated that [Nombre01 006], then coordinator of the switching area, was in charge of determining the needs present in that area; that they both frequently met with suppliers; that the defendant and his group coordinated matters related to bids and offer studies; that it was he (meaning, [Nombre01 153]) who, as head, appointed [Nombre01 006] project coordinator; that if he traveled abroad, he would leave an official in charge, for example, the defendant; and that the defendant was in charge of the technicians (f. 14.807 to 14.811 front, volume XXX). Now, while it is true that from the GESE report 1530, 6053-34633-2005 (evidence No. 740, visible in volume IX and particularly, folios 3.631 and 3.632 front), it is extracted that some documents related to the referenced contract were subscribed jointly by [Nombre01 153] and [Nombre01 006], this does not change the fact that it was the convicted person who signed both the certification of supplier sole-sourcing (certificación de unicidad de proveedor), Name02 as well as the technical justification of the project and the award recommendation (in fact, the first two documents were signed only by [Nombre01 006] and the latter jointly with [Nombre01 153]). It is important to add that to prove that [Nombre01 006] signed the aforementioned certification, it is not necessary to have the original document, as the appellant seems to understand it, for in our legal system the principle of freedom of evidence (principio de libertad probatoria) prevails, according to which any circumstance or fact of interest for the resolution of the case can be proven by any permitted means of evidence. In this matter, the lower court not only had reliable documentation yielding that conclusion (namely, the cited report, which was prepared, as indicated at folio 3.630 front of volume IX, based on the file located at the ICE Procurement Department (Proveeduría del ICE)), but also the statement of [Nombre01 153] which generally confirms what is set out there. Likewise, there were other evidentiary elements that allow us to understand that the gift [Nombre01 006] received responded to his role in the institution; we refer to the fact, otherwise undeniable, that the monies came from [Nombre02 060], a supplier company to ICE that was also the beneficiary of the contract that has been cited, and to the fact that [Nombre01 006] had no employment or contractual ties with [Nombre01 091], hence there is no legitimate reason whatsoever for him to have received those monies. While it is true that it was not imputed nor proven that said economic advantage was admitted in consideration of specific purposes (which is characteristic of certain criminal types, such as bribery, acceptance of gifts for a completed act, aggravated corruption, etc.), it was proven that he admitted the funds that were presented to him in consideration of his office and during its performance, which is sufficient for illicit enrichment (enriquecimiento ilícito) to be configured. Finally, it is important to add that even if the possibility is admitted that [Nombre01 153] may have had some role in these events (the hypothetical nature of the assertion is underlined), since, unlike [Nombre01 006], [Nombre01 153] was not accused of having received money from [Nombre01 060], this does not exclude the commission of the crime by the person charged here. For all the foregoing reasons, the reproach is declared without merit.

XIX.- Fifth ground on appeal for procedural error. 5) Confiscation (comiso) of the vehicle make Nombre04 Grand Vitara XL, license plate [Valor 040]. The court did not provide grounds for why it confiscated this automobile, which constitutes a defect in the judgment. Regarding the harm caused by this defect, the complainant states that: “…by not providing legal reasons, it cannot be accepted that the estate be affected, without any foundation; reasoning would allow a different conclusion to be reached, since the purchase of the vehicle cannot be linked to the crime of which [Nombre01 006] is accused…”. (F. 17.145 front).

XX.- The ground must be rejected. Although indeed, the court ordered the seizure of the vehicle make Nombre04 Grand Vitara XL, license plate ° [Valor 010], indicating only that it was shown to be the product of the crime, “since it was acquired with the gifts that the defendant received” (folio 16.285 front, volume XXXIV), this does not mean that the cited decision lacks reasoning, since in other sections of the judgment, specifically from folios 16.261 to 16.264 front of volume XXXIV, it was extensively explained why it was concluded that the motor vehicle is a profit derived from the crime committed. As gleaned from those folios, the lower court weighed a significant amount of expert and documentary evidence from which it is extracted with absolute certainty that the vehicle was purchased by the defendant [Nombre01 006] with three bearer investment certificates whose funds come from [Nombre01 060] and which were delivered to him through [Nombre01 058]. In fact, it was [Nombre01 006] who delivered the three investment certificates, Name02 as their interest coupons (which together totaled $30,109.77), to the company Nombre74 to acquire the vehicle in his name: “According to Expert Report 438-DEF, documentary evidence No. 610, section 4.3, folio 6 et seq., from the analysis of checking account No. [Valor 012] belonging to [Nombre01 058]. at Cuscatán International Bank, on December six two thousand one said account showed a balance of $1,055.37 and was funded on December 7, 2001 with a transfer of $800,000.00, coming from the company [Nombre 060]., which gave funding to check No. 301 for $755,123.00 drawn on December 10, 2001 and used in the purchase of several investment certificates, issued by Banco Cuscatlán de Costa Rica S. A., among them numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer for an amount of $10,000.00, with maturity date January 11, 2002 and an interest coupon for $36.59. The transfer made by [Nombre01 060] to [Nombre 058]. on December 7, 2001, for $800,000.00 and the balance that was in the account of [Nombre01 058]. at that date, is a matter already analyzed when reference was made to all transfers made by [Nombre01 060] to [Nombre01 058]., to which we refer. For the present analysis, it suffices to cite the account statement at folio 57 of documentary evidence No. 106, which corresponds to checking account No. [Valor 012] belonging to [Nombre 058]., at Cuscatlán International Bank and which reflects the credit for the $800,000.00 product of the fund transfer referred to in the previous fact, as well as the debit for $755,000.00 for the issuance of check No. 301. Said evidence was seized at the central offices of Banco Cuscatlán following a request and order to lift bank secrecy (documentary evidence numbers 90, 91, 105, and 106). According to documentary evidence No. 132, with the funds coming from check No. 301, totaling $150,000.00, a multiple investment was opened from number 224-002-003717-0 to number 224-002-003731-6 and among which, therefore, are the investment certificates numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer for an amount of $10,000.00, with maturity date January 11, 2002 and interest coupon for $36.59. (cf. Scheme of acquired certificates at folio 1, investment opening document at folio 2, where it is indicated that the invested funds come from check No. 301 and also the characteristics of the issued instruments and their numerical sequence, photocopy of check 301 at folio 3 and the 15 original certificates among which are those cited above, with their respective interest coupons for $36.59 each). Documentary evidence No. 132 was confiscated at the Central Offices of Banco Cuscatlán, following a request and order to lift bank secrecy (cfr. documentary evidence numbers 90, 91, 113 and 132). The accusation indicates that between December 10, 2001 and January 10, 2002, the investment certificates numbers CED03 CED06 CED04 Identificacion07 and Identificacion08 were presented to the defendant [Nombre01 006] by [Nombre 041] and [Nombre02 078], being accepted by the defendant [Nombre01 006] who endorsed and delivered the first three to the agency Nombre74 for the purchase of a vehicle. If the referred-to original certificates, which appear at folios 4, 6 and 8 of documentary evidence No. 132 are examined, it is determined that they do not bear any endorsement from the co-defendant [Nombre01 006] but only a legend that reads: ‘For deposit only to account No. [Valor 037] of Vetrasa’ and a cashier's stamp dated January 15, 2002 from Banco Interfin, the same applies to the interest coupons related to those certificates (folios 5, 7 and 9 of the same evidence). The only certificates that bear an endorsement by [Nombre01 006] and his respective ID number are numbers CED04 and CED05, visible at folios 10 and 12 of documentary evidence No. 132, an endorsement that likewise appears on the respective interest coupons and a cashier's stamp on all documents dated January 11, 2002. It follows from Expert Report 438-DEF (folio 7), that from the documentation provided by Nombre74 it can be determined that the mentioned certificates, related to said vehicle sales agency, were received by [Nombre01 006] and were used for the acquisition of the vehicle make Suzuki, license plate [Valor ]. The foregoing is effectively verified from the analysis of documentary evidence No. 368, located at folios 6769 to 6775 of Volume XVI of the investigation file and folios 1920 to 1939 of Volume VI of the investigation file. In said evidence is the certificate subscribed by Nombre76, accountant of Nombre74 S. A., dated March 4, 2005, who certifies that in the offices of said company is the file for the vehicle with license plate [], Nombre04 that Mr. [Nombre01 006], identity card number [Valor 038], acquired, a file containing the original invoice, copies of the certificates with which he paid for the vehicle, and a copy of the receipt for the certificates. Also provided was a photocopy of a receipt for money issued by Vetrasa, for $30,109.77, to Name01 of [Nombre01 006] and dated January 15, 2001; a photocopy of a document dated January 4, 2002, where Nombre74 certifies having received from [Nombre01 006] for safekeeping until the maturity date, certificates numbers CED06, CED05, 224-002-003718-9 for $10,000.00 each and three interest coupons for $36.59 each, all of which totalled $30,109.77; a photocopy of an invoice from Nombre74 dated January 10, 2002, regarding the sale of the vehicle Grand Vitara XL, year 2002, blue color, engine H27A105387, chassis No. , with [Nombre02 006] appearing as the buyer and for a price of $31,000.00, the noted characteristics being those described in the accusation in relation to the vehicle acquired by the defendant [Nombre01 006]. Finally, there is also a photocopy of public deed No. 233 executed by Notary Mario Antonio Morelli Astúa in which the transfer of the cited vehicle is carried out by Nombre74 to [Nombre01 006], which was finally registered in Name01 his name, as recorded in the photocopy of the certification from the National Registry that is part of the analyzed evidence. From the preceding evidence, it can be concluded with full certainty that effectively, between December ten two thousand one and January 10, 2002, [Nombre01 006] received the investment certificates numbers Identificacion16 Identificacion06 Identificacion17 and delivered them at the Nombre74 agency for the purpose of acquiring in Name01 his name the vehicle make Suzuki, Grand Vitara XL, series , chassis , engine H27A105387, model 2002, as described in accused fact No. 204 ...”. As extracted from the preceding text, the defect being reproached does not exist, since the judgment sets forth a detailed analysis of the evidentiary elements that allowed the lower court to link the motor vehicle whose confiscation (comiso) is ordered, with the crime of illicit enrichment (enriquecimiento ilícito). For the foregoing reasons, the claim is rejected.

XXI.- For procedural economy, this chamber will resolve jointly the sixth ground on appeal for procedural error filed by Licentiate Wilson Flores Fallas, and points one through six of the sole ground raised in the appeal filed (jointly) by [Nombre01 001], [Nombre01 028], [Nombre01 041], and [Nombre01 018], in their personal capacity. Sixth ground on appeal for procedural error in the cassation appeal formulated by Licentiate Wilson Flores Fallas. Incorporation of evidence obtained in violation of fundamental rights. Licentiate Flores Fallas reiterates that the judgment violates the principle of correlation between accusation and judgment, pursuant to articles 24 of the Political Constitution, 175, 176, 363 subsection b) and 369 subsection d) C.P.P., and 29 of the Law on Registration, Seizure and Examination of Private Documents and Interception of Communications. 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, dated September 6, 2004, which consists of 420 folios, Licentiate Flores Fallas points out that to dispense with the legal formalities established as a guarantee of a fundamental right, the consent of Mr. [Nombre01 158], legal representative of [Nombre01 215], is insufficient. In this regard, he argues: “… In our legal system, the right to privacy (derecho a la intimidad) is a fundamental right, enshrined in articles 23 and 24 of the Political Constitution, and recognized in International Human Rights Law (article 11, clause 2 of the American Convention on Human Rights, article 17 of the International Covenant on Civil and Political Rights). Since art. 24 of the Constitution establishes: ‘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 indispensable 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. Likewise, it shall indicate the responsibilities and penalties incurred by officials who illegally apply this exception. Judicial resolutions covered by this norm must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority. The law shall establish the cases in which competent officials of the Ministry of Finance and the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to audit the correct use of public funds. A special law, approved by two-thirds of all Deputies, shall determine which other bodies of the Public Administration may review the documents indicated by that law in relation to the fulfillment of their regulatory and oversight powers to achieve public purposes. Likewise, it shall indicate in which cases such review is appropriate. Correspondence that is stolen and information obtained as a result of the illegal interception of any communication shall have no legal effect.’ The foregoing allows us to point out that article 24 of the Constitution ‘grants constitutional recognition to the right to privacy represented by the inviolability of private documents and written, oral, or any other type of communications of the inhabitants of the Republic; it provides the possibility of intrusions into the right to privacy by the Courts of Justice, when it is absolutely indispensable to clarify matters submitted to their cognizance. The intrusions must be ordered by reasoned resolutions, whose application and control is exclusive and non-delegable by the judicial authority; the authorized type of intrusion is the registration, seizure and examination of private documents and the interception of any type of communication; it delegates to the ordinary legislator, through a law approved and reformed by two-thirds of the deputies of the Assembly, to define in which cases the Courts of Justice may order the authorized intrusions into the right to privacy and to define the crimes for which the interception of communications is permissible and for how long. It determines that stolen correspondence and information obtained from illegal interceptions of communications have no legal effect.’ Minority vote of Associate Judge (cojuez) Camacho Morales. Therefore, consent is not sufficient to dispense with compliance with the legal formalities established as a guarantee of the fundamental right, at both the constitutional and legal levels, and compliance with which is unavoidable in all cases, because they are formalities that constitute a guarantee of fundamental rights, are matters of public policy (orden de público) and are not waivable by individuals, on which doctrine and constitutional jurisprudence agree. Therefore, said consent does not meet the minimum requirements to operate as a ground for justification and eliminate the criminal nature of the intervention by the Public Ministry (Ministerio Público). If the cited evidence is admitted, the State would be allowed to take advantage of actions by its officials, which delegitimize the Costa Rican criminal system. Since from that means of evidence an element of proof is obtained, information is obtained linking [Nombre02 058]. with Cuscatlán International Bank and international transfers from [Nombre02 058]., in favor of defendants in this case and from [Nombre01 060] in favor of [Nombre01 058]., so the evidence derived from it, including evidence against [Nombre01 006], would also be illicit, and Name02 it is requested that it be declared …” (folios 17.146 to 17.148 front, volume XXXVI, the transcription is literal).

Regarding the harm caused, he affirms that the evidence he classifies as unlawful allowed information to be obtained linking [Nombre01 058] with the Cuscatlán International Bank “… and international transfers from [Nombre01 058] in favor of defendants in this case and from [Nombre01 060] in favor of [Nombre02 058].” (F. 17,148 front), such that the evidence derived from it against [Nombre01 006] would be illegal, hence he requests acquittal in his favor. Appeal in cassation (recurso de casación) filed jointly by [Nombre02 001], [Nombre01 028], [Nombre01 041] and [Nombre01 018], in their personal capacity. In the document appearing on folios 17,264 to 17,278 front of volume XXXVI, authenticated by attorney José Miguel Villalobos Umaña, the defendants [Nombre01 001], [Nombre01 028], [Nombre02 041] and [Nombre02 018] appeal the repeatedly cited ruling No. 167-2011, based on articles 369, 458 and following and concordant articles of the Code of Criminal Procedure (Código Procesal Penal). As their sole ground for cassation, they claim the violation of article 369, subsection j), “because the judgment was issued in violation of due process (debido proceso), since the convictions are substantially based on evidence unlawfully obtained and illegally introduced into the debate and, therefore, subsection c) is also violated as a piece of evidence was illegally incorporated into the proceeding.” After claiming the breach of due process and the right to a defense enshrined in articles 39 and 41 of the Political Constitution (Constitución Política) and article 8 of the American Convention on Human Rights, as well as citing Constitutional Chamber (Sala Constitucional) resolution No. 1739-92, from 11:45 a.m. on July 1, 1992, the appellants state: “… the Chamber points out what illegitimate evidence is and its formal treatment and assessment, for which it has established that said illegitimate evidence must be denied ALL PROBATIVE VALUE IN ITSELF, even stating that on this point there seems to be no discussion whatsoever and it is necessary to SUPPRESS IT FROM THE PROCEEDING, AS IF IT HAD NEVER EXISTED. But all those pieces of evidence that, while not illegitimate per se, were obtained through it must also be excluded. The principle of hypothetical suppression is also applied, in the sense of completely excluding it and resolving the matter as if it had not existed… There are no exceptions, no limitations, no constitutional loopholes, and no justifications or excuses for its breach: evidence obtained illegitimately is not only invalid on its own, but is also invalid in its reflected effect and nullifies those other pieces deriving from it, that is, one cannot excuse the fact that although it may not be useful by itself, it could be when rested upon another different piece, since this would allow indirectly violating what the Law prohibits violating directly. The incorporation of a means of evidence into the proceeding in an illegitimate manner is also a defect in the judgment that justifies the appeal in cassation, pursuant to article 369, subsection b) of the Code of Criminal Procedure (CPP). Since the validity of what was then subsection 3) of Article 400 of the former Code of Criminal Procedures (Código de Procedimientos Penales), the Third Chamber (Sala Tercera) had indicated that this was a serious defect justifying the nullity of the judgment, ratifying unanimous doctrinal positions that had determined it and developing the concept of hypothetical suppression that the Constitutional Chamber later indicated. (See in this regard the vote of the Third Chamber 047-92 from 11:00 a.m. on January 23, 1992). What is interesting about this binding constitutional position is that it remains in force despite the passage of time and is constantly reinforced despite the change in the composition of the Constitutional Chamber. One of the most important votes is 2529-94, which developed the independent source doctrine, to which we will return later, establishing that spurious or illegitimate evidence can be assessed if and only if IT ALSO ORIGINATES FROM ANOTHER AUTONOMOUS ELEMENT GATHERED DURING THE INVESTIGATION AND PRIOR TO THE CONSTITUTIONAL VIOLATION …” (F. 17,265 front). For the appellants, it is important to refer to the general right to legality, it being the case that in criminal procedural matters, “violations of mere legality become, by virtue of the aforementioned principle, violations of due process of constitutional rank, in order to have full guarantee of material and formal effectiveness of its dictate…” (F. 17,266 front). After citing articles 180 to 184 of the Code of Criminal Procedure, which they relate to article 11 of the Political Constitution, they affirm that not only judges and prosecutors must respect the laws regarding the obtaining, incorporation, and assessment of evidence, but also that items of evidence have no value whatsoever if they have not been obtained by lawful means: “The legislator, both ordinary and constitutional, is clear that the validity of evidence must be twofold: both in the manner in which it is obtained and in the mechanism through which it is incorporated into the proceeding. And this must be emphasized against absurd and treacherous theses prone to paying homage to dictatorship and investigative totalitarianism, which propose that a valid incorporation legitimizes unlawfully obtained evidence… the majority Judges opt for this fascist-like position, contrary to our democratic traditions and sound legal hermeneutics and only possible in the (in)justice of the cadí or the female cadís. If the evidence was obtained illegally, valid incorporation is worthless, since it has damaged the Law, judicial ethics, the defendants, and the Constitution that is sworn to be upheld...” (f. 17,266 front). That said, they argue that the conviction was based on illegitimately obtained evidence that cannot be remedied or corrected, substituted, or endorsed by other autonomous, prior, or independent evidence, and that the exceptions contemplated by case law—some questionable from a constitutional standpoint—do not apply either. Next, they detail each of those evidentiary elements whose obtaining and incorporation into the proceeding they challenge. First. Evidence 588, containing the Panamanian banking information of the accounts of the company [Nombre01 215]. “… At this point, we will initially dedicate ourselves to demonstrating that the evidence numbered 588 is obtained in a crookedly illegal manner, that the Female Prosecutors and the Female Judges knew it, and that, despite this and recognizing its illegality and resolving a similar case differently, in the present case they proceeded to validate said illegality. The Female Judges themselves clearly summarize the defense arguments of [Nombre01 018] at Folio 890, regarding what at Folio 892 they call a request for a declaration of PRIMIGENIAL UNLAWFULNESS THAT WOULD CAUSE THE EXCLUSION OF ALL EVIDENCE DEPENDENT ON IT. Evidence 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes dated September 6, 2004, from that country and by the Attorney General's Office to the Prosecutor's Office on the 10th of the same month, as expressly recognized at Folio 8335 of the case file. A certified copy from a different judicial file is brought, which by itself we will not challenge in this appeal, because that issue is discussed in another. The point here is to determine whether that Judicial Assistance, as evidentiary material, was validly obtained or not, for the purposes of its assessment in this case. The majority Judges raise this discussion from Folio 889 to 952 of the judgment, and it must be recognized that they engaged in commendable effort to try to demonstrate the error of the technical defense of [Nombre01 018] that questioned said obtaining and incorporation, but as stated before, effort does not always generate correct results and consequences. At Folio 889, the criterion of the defense of [Nombre01 018] is summarized: that evidence is null because the banking information was obtained in Panama without an order from a national Judge in Costa Rica lifting bank secrecy. On this topic, the Judges’ zigzagging is an anthology piece: At the end of Folio 893, they dare to indicate that determining whether said documentation was obtained without a judicial order is beyond their competence and that they cannot and must not familiarize themselves with that evidentiary material or the circumstances of its collection and the assessment of its lawfulness or unlawfulness. And we say this is an anthology piece because almost from the beginning of this trial they pronounced on this matter, recognized that said evidence was obtained through a lifting of bank secrecy without a judicial order, and even annulled evidentiary material brought to the debate through an identical procedure, by means of a unanimous resolution on that aspect, drafted by Judge García Aguilar, at 8:00 a.m. on May 14, 2010. There it is indicated that said evidence coming from Panama is NULL: from Folio 34 to 70 of that resolution, the arguments are outlined for why evidence coming from Panama consisting of bank evidence gathered without a judicial order cannot be allowed to be valid, and therefore the decision of the Judge at the preliminary hearing (audiencia preliminar) to exclude it is upheld. The Judges already know that the Panamanian bank evidence was obtained without an order from a national Judge, but they refused at that time to resolve an express request from the defense of [Nombre01 018] to exclude evidence 588 and left this matter pending for the judgment, a matter that is neither a late request nor contrary to the principles indicated at Folio 894. But this thesis of the Judges loses importance when they themselves accept that THEY ASSUME THAT THIS EVIDENCE 588 WAS GATHERED WITHOUT A JUDICIAL ORDER LIFTING DATA PRIVACY. (See Folio 894, line 2 and following). Thus, given the silent admission of this element by the Prosecutor's Office, the proper course then, without further preamble and without needing to continue along this line, is to consider that this Panamanian bank evidence was obtained illegitimately as it did not have a judicial order …” (f. 17,267 and 17,268 front). Second. Panamanian banking information that derives from evidence 588 and that contains, for the first time in the investigations, the reference to the company [Nombre 058]., without there being any independent and prior evidence regarding it. On the occasion of the illegal lifting of bank secrecy of the accounts of company [Nombre01 215], information is obtained about financial movements by a company, the date unknown in the case. The appellants recall that evidence 588 is a certified copy “of the judicial assistance originating from the CAJA-FISCHEL case,” the same that was processed in a separate file, “so it is proper to easily conclude that its review and reading was done to locate information for that other case.” They add that from Expert Report 428-DEF-443-05-05 of the Judicial Investigation Organism (Organismo de Investigación Judicial), evidence No. 618, it is extracted which information coming from Panama contains data on transfers from a company called [Nombre 058], unrelated to the CCSS-Fischel case, to the company [Nombre01 215], which was indeed being investigated in that case. This is how the Public Prosecutor's Office (Ministerio Público) learns of the company [Nombre 058]. That is, from the evidence coming from Panama in a spurious manner, as already stated in the previous subsection. The illegal information, they add, arrives in Costa Rica at the beginning of September 2004 and is 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 regarding [Nombre01 215], not regarding [Nombre02 058], and as of September 10, the prosecutor's office learned of the existence of this company and began an investigation into it. Before September 10, there is no reference whatsoever to [Nombre01 058], so the investigation of case Nombre64 091] began with the information obtained from evidence 588 from Panama, which is null because it was obtained without an order from a competent judge and which, therefore, must be excluded, along with any element deriving from it. The appellants state that the suspicions about company [Nombre01 058] are not supported by evidence independent and autonomous from the aforementioned, which would allow remedying the illegality of that information obtained from evidence 588. According to the trial court, there is such evidence, namely, journalistic sources: evidence 592.9 called PRINT MEDIA MONITORING FROM DECEMBER 9 TO 31, 2004, in reference to publications from April 21 and 27 of that year. However, these make no reference whatsoever to the topic under discussion. From these notes, the existence of a company called [Nombre 058] is not inferred. There are only references to a [...] Nombre25 a [Nombre 018]. 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 “journalistic elements” from April 2004, without mention of [Nombre01 058]. The publication cited at folio 936 also does not provide the information that the judges refer to. In that note from September 28, [Nombre01 058] is not alluded to. Furthermore, by that date, the banking information illegally obtained in Panama had already arrived, so this evidence is neither prior nor autonomous, because by virtue of the illegal bank evidence, information had been requested on the accounts of [Nombre01 058] within and outside the country, so it is evident that the press had received “derived” information to “solicitously contribute to the investigation.” The complainants add that the interview with Mr. [Nombre01 213] from September 27 is not prior to the illegal evidence coming from Panama. According to the appealed ruling, it was the bank data that caused new paths in the investigation. That is, the lower court (a quo) recognizes that it was the illegal evidence that generated the obtaining of the subsequent evidence. Finally, if the judges admit that the reports are subsequent to the bank information received, although theoretically they could well be independent, they can never be prior. Third. The act by Mr. [Nombre01 158], in writing and verbally, does not have the “magic” to suppress the invalidity in the obtaining of the Panamanian bank evidence. According to the trial court on the merits, should the evidence from Panama be considered unlawful, its use in the proceeding would be viable because the account holder, Mr. [Nombre01 158], had authorized it. Faced with this, the appellants reiterate that the evidence was obtained without a judicial order and entered the country on September 10, 2004. With this evidence, lifting of bank secrecy was ordered for companies such as [Nombre02 058], the defendants were accused, and precautionary measures were requested. And it is not until May 17, 2010, that Mr. [Nombre01 158] purports to authorize the obtaining and use of the information available on the bank account corresponding to company [Nombre 215], as the judges state at folio 896 and appears in evidence 759, at folio 13,449 of the case file. Regarding this authorization, the defendants affirm that what is intended is to give “retroactive effect to a constitutional violation.” They add that such authorization does not allow legalizing the access that was made to the accounts long before without a judicial order: “… What is intended is that retroactively, as if one could travel back in time, it would be located BEFORE September 2004, almost six years earlier, and would provide the endorsement to open the accounts without a Judge's order and BEFORE THEY WERE OPENED. As if nothing had happened. Pure legal alchemy. And at the end of the note, the matter gets better: it says that he consents and authorizes the use and utilization, once again, that has been made in the past of those documents, that is, he intends to erase everything illegal as if it had not occurred and as if he were the only one affected. UNBELIEVABLE. The letter itself is an acknowledgment of the illegal actions of Judges and Prosecutors, since if they were sure of its lawfulness, they would never have drafted such a legal tongue-twister. Let us correctly understand the timeline: the evidence is obtained illegally, it is used to learn of the existence of the company [Nombre01 058], through it and not from prior and independent sources the banking information of [Nombre01 058] is accessed and the eventual participation of [Nombre01 091] and the other defendants is determined, some of them are detained, they are accused and prosecuted, and, without any shame, almost six years later it is intended to remedy all that was done with the written statement of [Nombre01 158], which he later reiterates verbally before the Court in August 2010, almost SIX YEARS AFTER THE CONSTITUTIONAL VIOLATION. In the first place, the Judges at folio 898 attempt to develop an absurd thesis, consisting of separating the moment of obtaining the illegal evidence from its incorporation, noting that although the former may be unlawfully obtained, its validity is analyzed and assessed when it is incorporated into the case file. Such position was already questioned and criticized in previous lines: both vote 1739-92 and the criminal procedural regulations, of constitutional rank according to that vote, clearly indicate that items of evidence only have value if they have been OBTAINED BY LAWFUL MEANS. The incorporation process is subsequent, but its obtaining in an illegal manner contaminates the evidence and prevents its use against the defendant, not only against the presumed holder of the right affected, which will be analyzed later. Thus, the fact that according to the Judges the evidence can be validly incorporated into the proceeding does not suppress its illegal obtaining, through the lifting of bank secrecy without an order from a competent Judge. To state without shame that the documents derived from evidence 588 were not such until the moment they are incorporated into the debate is nothing more than a sad mockery of the legal system, the resolutions of the Constitutional Chamber, and the rule of law. With this evidence—which if it were not such, the trial would not have been held—all the defendants were prosecuted, deprived of their liberty, accused, and convicted. Had it not existed, as legally it does not exist, the preliminary hearing would not even have been passed, and if the Prosecutor's Office respected the Law, it would have withdrawn from the case from the beginning, but its stubbornness in doing things as it wanted and not as it should contaminated all the evidence derived from the documentation appearing in evidence 588 and makes it impossible to be legally used in the case…” (F. 17,271 front). Along these lines of thought, the appellants add another argument, namely, that both in May and August 2010, [Nombre01 158] did not demonstrate that he was the legal representative of the company [Nombre01 215]. In their view, this could only be proven with registry and notarial certifications and not by relying on evidence 588, the legality of which is questioned. Furthermore, the statement of [Nombre01 158], who testifies personally and not as the representative of the company, should be reliably accredited, especially considering that the evidence was obtained almost six years earlier without a judicial order. For the appellants, the majority vote, at folio 897, peacefully accepts that when the Panamanian bank documentation is received, the lifting of bank secrecy without a judge's order has already occurred, giving rise to the following situation: “… on the hypothesis that the documents of the bank account of [Nombre01 215] in Panama may have been collected without a jurisdictional order, what [Nombre01 158] does is accept that this result (compilation of bank documents) may have occurred without the respective safeguarding (jurisdictional order) of his right to privacy. From this perspective, for this panel, what operates on his part in a technical legal sense is the waiver of the referred right, which is characterized by being an express procedural act subsequent to the act, characteristics that the act of [Nombre01 158] meets.” This criterion is erroneous, because consent should have been granted before the violation of bank secrecy. What [Nombre01 158] does in 2010, six years after such violation, is waive his right to privacy, which does not allow legitimizing the evidence in question. The appellants affirm that the issue to be elucidated is whether [Nombre01 158] could waive his right to privacy, given that with this waiver he affects other persons: “This is the true crux of the matter. We are not talking about the rights of [Nombre01 215] to its privacy. That would have been correct in September 2004 if at that time the company [Nombre01 215], through whoever was acting as its representative, had authorized the lifting of bank secrecy of its accounts before a request from the Prosecutor's Office or from BAC Panama itself. It is clear that it had full competence to authorize the lifting of bank secrecy of its accounts, regardless of who had sent money to them or who was its final recipient, in case it had been so. It is also possible that a posteriori the representatives of [Nombre01 215] waived their right to privacy and the legal action against the Prosecutor's Office and the Bank for the use of the information derived from those illegally opened accounts, BUT IF AND ONLY IF THEY WERE THE ONLY ONES AFFECTED BY THAT ILLEGAL OBTAINING. Because what the Judges do not want to see is that the constitutional right here is not the privacy of [Nombre01 215] or Mr. [Nombre01 158], it is rather and to a greater extent and importance, that of us, the defendants, THAT INFORMATION, EVIDENCE, PROOFS ILLEGALLY OBTAINED NOT BE USED AGAINST US TO RESTRICT OUR RIGHTS AND INTERESTS, WHICH ARE JUST AS OR MORE IMPORTANT THAN THOSE OF MR. [Nombre01 158], WHO IS NOT EVEN A DEFENDANT IN THIS CASE… If the company had wanted to authorize the opening of its accounts in Panama, it certainly could have done so expressly… in that case, the documentary information used against us would have had a lawful origin. But that is not the case. Here, evidence illicitly obtained was used, not against [Nombre01 158] or [Nombre01 215],… but against third parties, those of us who have a guaranteed constitutional right… that evidence spurioulsy obtained not be used against us. The data of [Nombre01 215] could pass from being private to the knowledge of the Prosecutor's Office with the authorization of its representatives if they had so granted it before its use against us, because from that moment onward, it is no longer only the privacy of a company and the clear interests of a gentleman who ‘collaborates’ with the Prosecutor's Office that are at stake. That is why it is false and reckless to say that denying effects to the note and the words of [Nombre01 158], six years after the constitutional outrage, is CONDONING AN ILLEGAL PROCEDURE... AND PROMOTING ARBITRARY AND ABUSIVE ACTION IN THE EXERCISE OF PUBLIC POWER. (Folio 913). Rather, it is the complacent attitude of the majority Judges that leads to condoning an illegal and invasive procedure regarding the defendants' rights, by being accomplices to a constitutional violation consciously: the Judges know that the bank evidence was obtained without a Judge's order, they know it was used to learn of the existence of [Nombre01 058] and its presumed relations with [Nombre01 091] and the defendants, they know it was used to gather evidence without having an independent or prior source, and they know that the defendants' rights are violated with it, but they admit that a third party unrelated to the proceeding remedies, six years later, what was definitively broken and when what is at stake is not privacy but judicial dignity, which is what is affected when the use of spurious evidence is applauded. Who, then, is the one condoning an illegal procedure and promoting arbitrary and abusive action? That is why the defendants' legitimate rights are affected, the right that illegal evidence not be used against them and that it be excluded from the case file; it is not that we seek to prevent [Nombre01 215] or [Nombre01 158] from cheerfully waiving their privacy, that is very much their business and their clear or dark interests, God only knows. But for [Nombre01 158] to seek, with the complacency of prosecutors and Judges, that evidence be obtained and used illegally against us is inadmissible. That is why the reading of various votes of the Third Chamber that are introduced has no relation whatsoever to the matter at hand. We are not faced with cases where the holder of privacy waives his rights to intimacy in order to accuse those who have offended or affected him, since neither [Nombre01 215] nor [Nombre01 158] are parties in this case. One can read the error of the Judges when they write at Folio 919 that the bank documentation was not obtained illegally because the knowledge of that information derives from the authorization of the holders of those accounts. FALSE, TOTALLY FALSE. Knowledge derives from an illegal lifting of bank secrecy by the Prosecutor's Office, and by using that evidence against other defendants, its scope of damage went beyond the simple right to privacy of [Nombre01 215], and in that expanded damage, neither [Nombre01 158], nor that company, nor the Female Prosecutors, nor the Female Judges are sovereign. Whether a crime occurred in the manner the bank evidence was obtained is a matter unrelated to the case file: the obtaining was illegal and its use was spurious, regardless of whether [Nombre01 158] or [Nombre01 215] do not wish to accuse those who so acted or whether the criminal action has prescribed. That is why the ramblings consisting of trying to absolve those who acted illegally of crimes are nothing more than that: ramblings. The illegality of evidence does not require deriving from a crime; it is enough that its obtaining was contrary to law for it to have to be excluded, not only the evidence per se, but all that derives from it, unless it has an independent and prior source, which does not occur in the case…” (F. 17,273 and 17,274 front, the transcription is verbatim). Fourth. The information originating from the Panamanian bank evidence, and that derives from an illegal lifting of bank secrecy, cannot be accredited or validated under the inevitable discovery exception. The judges seek to justify the use of illegally obtained evidence, arguing that it was an inevitable discovery. To this end, Third Chamber ruling No. 125-2001 is cited, which indicates that if it is reliably demonstrated that the excluded evidence, due to being illegal, would have been discovered or obtained INEVITABLY OR CERTAINLY BASED ON THE LEGITIMATE INVESTIGATIONS THAT WERE ALREADY BEING CARRIED OUT AT THAT TIME, it can be validated a posteriori, not because it was not invalid, but because it would have been arrived at anyway. In this case, none of that occurred. The appellants explain that when the questioned evidence is obtained, there was no investigation on the Nombre64 091] topic, nor was anything known about the company [Nombre01 058]., thereby making it evident that there were no legitimate investigations underway. Furthermore, although the judges speak of lawful journalistic investigations, explaining that by April 2004 it was inevitable to reach the conclusions that were reached, because the journalists were already channeling an investigation that was going to end up finding the connection between [Nombre01 058] . and [Nombre01 091] itself, such an argument constitutes an interested and unproven supposition. At no time are the media auxiliaries of justice, or substitutes for the State's investigative bodies. But what is more, as of September 27, 2004, journalists were not referring to [Nombre01 058]. as a transmitter of resources to the accounts of [Nombre01 215]. However, as of September 10, 2004, the bank information was already available, which would discard the possibility of applying the inevitable discovery criterion to validate the evidence in this case. Fifth. The Panamanian banking information, which originates from an illegal lifting of bank secrecy, cannot be accredited or validated under the casual finding exception. According to the appellants, the evidence coming from Panama is entirely null and cannot be validated in pieces or in parts. We are not faced with the case, for example, of an illegal search (allanamiento) that leads to the discovery of another crime. The judges, at folio 949, say that before the prosecutor's office became aware of the bank information, there were already news reports linking companies and persons, but the truth is that none involved [Nombre01 058]. The ruling states a falsehood, namely, that thanks to that journalistic information, interest arose in investigating the cited company, when the truth is that no journalistic note involved [Nombre01 058] with the case before September 10, 2004. Therefore, “… the judges are not telling the truth when they seek to indicate that the Female Prosecutors had knowledge of evidence or indications regarding this company and that based on them, which did not exist at that time, they continued with their investigations and, upon reviewing the information from Panama, they casually found what was related to [Nombre01 058]. What a muddle they make in their theoretical ramblings. If, according to them, interest had already arisen in investigating [Nombre01 058] and its relationship with [Nombre01 018], which is false, what explanation would the casualness have in the finding, given that, as they indicate, the Prosecutor's Office was already pursuing [Nombre01 058]. It is evident that there was no indication whatsoever prior to September 10 regarding [Nombre01 058] and its connection to the case, which had not even started…” (F. 17,275 front). Therefore, it is not possible to apply the casual discovery exception in this case to validate the evidence. Sixth. The Panamanian bank information was obtained illegally and is intended to be validated as a notitia criminis, which is contrary to Law.

They argue that “… what this thesis directly leads to is denying all evidentiary value to the Panamá evidence, but seeking to ensure that the evidence derived from it does possess such value, in accordance with the existing jurisprudence of the Third Chamber...” (F. 17.276 front). But the truth is that no evidence of a crime attributable to [Nombre01 058] is derived from that evidence. There is only record that this company sent transfers to [Nombre 215], which was being investigated in the CCSS-FISCHEL case. The defendants also reject that information generated after an illegal lifting of bank secrecy be considered *notitia criminis* and that, therefore, it cannot be used against any accused person.

XXII.- The arguments must be dismissed. First, it is necessary to clarify that although [Nombre01 001], [Nombre01 028], and [Nombre01 041] were acquitted of all penalty and responsibility, [Nombre01 018], who is the fourth accused filing the appeal in a personal capacity, is not in that situation; hence, at least as far as he is concerned, the challenge retains interest. Having clarified this, the matter of the legality of evidence No. 588 was decided by the Third Chamber upon hearing and resolving the cassation appeal filed by the Public Prosecutor's Office against the ruling previously issued by this appellate court (with a different composition), concluding that it is lawful and also ordering that the remand be conducted on that basis (the legality of the cited evidence): “… Regarding the claim of the Public Prosecutor's Office concerning the declaration of illegality of evidence 588, because the Criminal Sentencing Appellate Court considered that it was gathered without an order or endorsement from a jurisdictional body, a condition necessary, in its view, for the validity of said evidence, Judges López Madrigal, Gómez Cortés and Judges Desanti Henderson and Sanabria Rojas, we consider that, although this Chamber, with a different composition, ruled on this same evidence in majority vote 2011-00499, at eleven forty-five hours, on May eleventh, two thousand eleven, the truth is that the opinions expressed in that judgment do not obligate this new composition to preserve or assess them in the same manner, so that, by the principles of judicial independence and impartiality, the undersigned Judges disagree on the requirement of a prior resolution from a Costa Rican jurisdictional body or an endorsement from the Criminal Judge, prior to the request for evidence made by the Costa Rican Office of the Attorney General as a validity requirement to access the information gathered in Panamá, through the TALM, given the position assumed by the Sentencing Appellate Court in the questioned ruling 2012-2550, this Chamber with the majority of the present composition refers to it in the terms set forth below. Before entering into the matter of the filed claim, it is necessary to delve into the issue of the sovereignty of States as a principle of Public International Law and its implications in our legal system, it being appropriate to point out that as part of the concept of sovereignty, which encompasses population, territory, and powers of the State, the Costa Rican Political Constitution, in its articles 5 and 6, defines the national territory in which complete and exclusive sovereignty is exercised. From the definition of territorial space assumed in the cited numerals, Article 9 of the Political Constitution also describes the internal organization of the territory and the separation of powers into three mutually independent branches: Legislative, Executive, and Judicial, as well as their competencies as part of the exercise of that state sovereignty. In relation to the Judicial Branch, a matter of importance in resolving the sub judice, the same Magna Carta grants it specific functions, in accordance with Articles 9, 10, 39, 48, 49, 152, and 153, which are regulated through numerals 1 to 5 of Law 7333, Organic Law of the Judicial Branch, among which the application –obviously to the inhabitants of Costa Rican territory– of the laws and norms enacted by the Legislative Branch stands out, laws which, by Article 29 of the Vienna Convention on the Law of Treaties, also carry intrinsic respect for the principles of sovereignty of other nations as 'a fundamental right of any State in the international community' (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, México, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.87) and to the principle of non-interference in another territory or in the internal legislation of each country as a corollary of the first, because each of them has the power to be independent regarding its internal regulations. However, the aforementioned principle of international sovereignty is not absolute, since '…in the foreign relations of said States, they can legally bind themselves through treaties and other international agreements to exercise their sovereignty' (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, México, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.103), through organizations like the United Nations via action plans for the signing of conventions or agreements such as the Model Treaty on Mutual Assistance in Criminal Matters, approved as the Milan Plan of Action by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and by the General Assembly in its resolution 40/32, of November 29, 1985, that is, \"model instruments that can be used as international and regional conventions and as guides for the drafting of national laws\" (Preamble of the Model Treaty on Mutual Assistance in Criminal Matters) to be used precisely as \"…a useful framework that may serve interested States to negotiate and conclude bilateral agreements aimed at improving cooperation in the matter of crime prevention and criminal justice\" (First aspect of the Preamble of the Model Treaty on Mutual Assistance in Criminal Matters). It is thus how, for example, based on the Model Treaty on Mutual Assistance in Criminal Matters, the Member States of the United Nations, like Costa Rica, in fulfillment of the aims of that international instrument, have undertaken the task of also signing conventions or treaties that, without harming the sovereignty of other countries or the country itself, produce understanding between governments on specific issues that afflict them, such as: the United Nations Convention against Corruption (ratified by Costa Rica through Law 8557, of November twenty-ninth, two thousand six) or the United Nations Convention against Transnational Organized Crime (Palermo Convention, 2000, ratified by Costa Rica through Law 8302, of September twelfth, two thousand two), whose primary aims lie in improving the investigation of criminal conducts that afflict not just one State but the rest of the countries in the area, it being observable that in that endeavor Costa Rica has signed several specific treaties or conventions with other countries such as Mexico (Law 7282, of January fourteenth, nineteen ninety-two), Panamá (on November 29, two thousand one), Argentina (Law 8610, of November first, two thousand seven), Trinidad and Tobago, or as in the case at hand, the Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (TALM), approved through Law 7696, in force since October thirtieth, nineteen ninety-seven, which has taken as a point of reference, often verbatim, what is stipulated in the aforementioned Model Treaty. Thus, the TALM, apart from containing the same limitations or restrictions on use and confidentiality protection (Articles 8 and 9 of the United Nations Model Treaty on Mutual Assistance in Criminal Matters) described above, also presents the same requirements concerning the requests from competent Authorities of the States as well as its own content. Precisely, like the United Nations Model Treaty on Mutual Assistance in Criminal Matters, the purpose of the TALM signed by our country with the other Central American countries and Panamá is: \"to strengthen and facilitate the cooperation of the justice administration bodies in the region, through a legal instrument that allows legal assistance in criminal matters between the States of the Central American Isthmus with full respect for the internal legislation of each State\" (Preamble of the TALM). In this way, through this type of norms, it is possible to make requests to the contracting countries that allow access to evidence located in neighboring countries to facilitate the investigation of criminal cases with punishable acts classified as crimes in both the Requesting and the Requested State, as admitted by Article 2.2. of the TALM: \"Legal assistance in accordance with the provisions of this Treaty includes: a) The taking of testimonial statements. b) The obtaining and execution of means of evidence. c) The notification of judicial resolutions and other documents emanating from a competent authority; d) The execution of precautionary measures. e) The location of persons; and f) Any other legal assistance agreed upon between two or more Contracting States...\" (Article 2.2 of the TALM. The emphasis is ours), it occurring that in order to improve communication between the Central American States and Panamá that signed the Treaty, it was decided to duplicate the mechanism devised in the Model Treaty on Mutual Assistance in Criminal Matters, that is, the designation of \"...an authority or authorities through which the requests provided for in this Treaty must be formulated or received and will inform the other Party...\" (Article 3 of the Model Treaty on Mutual Assistance in Criminal Matters), it being understood that said Central Authority or Authorities in the Contracting States present \"…sufficient administrative capacity, through which requests for assistance must be processed in accordance with this Treaty\" (Article 3 of the TALM. The emphasis is ours). Similarly, every request process, in safeguarding the domestic law of the Signatory Countries, must be managed through a simple procedure in which the so-called 'Central Authorities' of each of those countries intervene: The Central Authority of the Requesting State makes a formal request for assistance to its counterpart in the Requested State, and the latter, in turn, according to its domestic law, processes it and gathers the evidence that the Requesting State needs to obtain, there not being –because it is a faculty assumed by the various States– uniformity in the designation of the Central Authority for the various Central American countries and Panamá. Thus, by way of example, the Central Authority designated by the countries of Costa Rica and Nicaragua is the Office of the Attorney General, while in El Salvador, Guatemala, and Honduras, it corresponds to the Supreme Court of Justice, and in the Panamanian case, to the Ministry of Government and Justice, since as has been established, the task of the Central Authority in each country will be merely administrative and not jurisdictional, according to the inference that can be made from the preamble of the Treaty, in consonance with the principle of Pacta Sunt Servanda and the rules of good faith in the interpretation of treaties, contained respectively in Articles 26 and 31 of the Vienna Convention on the Law of Treaties, approved by the Legislative Assembly of Costa Rica by Law 7615 of July 24, 1996 (hereinafter Vienna Convention), since with the ratification of the Treaty by the Central American States and Panamá, the aim was to create an agile legal instrument that would allow the gathering or obtaining of external evidence in the investigation of criminal cases in the region, while respecting the sovereignty and internal legislation of each country, it being that said purpose can also be derived from numeral 5 of the TALM, which establishes: “The Central Authority of the Requested State shall promptly comply with the request for assistance or, when appropriate, shall refer it to the competent authority. Said authority shall use all legal means at its disposal to comply with the request.” (The emphasis is ours). On the other hand, in relation to the applicable regulations for obtaining the means of evidence requested by the Requesting country, the Treaty –by the principle of respect for the sovereignty of the other contracting countries– is clear in stating that any request, once known by the Requested country through its Central Authority, must be processed and executed in accordance with its domestic law, the existing laws or formalities of that country, this action being reiterated both in the cited numeral 5 and in ordinals 7.1 and 12.1 of the same Treaty, to finally establish expressly in Article 6 that the Requested country has the power to refuse to comply with the request for assistance when: \"...a…Considers that compliance with the request for assistance may prejudice its sovereignty, security, or public order…” (The emphasis is ours). On the issue of the interpretation of the TALM and its scope, special mention must be made of the Inter-American Convention on Mutual Assistance in Criminal Matters, signed in the City of Nassau, Bahamas (hereinafter Nassau Convention) on May 23, 1992, but ratified by Costa Rica, by Law 9006, until January 3, 2012, because although that text as such would not have the virtue of being binding, having been ratified after the issuance of the first-instance judgment in this case, the truth is that, by strict application of Articles 31, 32, 53, and 64 of the Vienna Convention on the Law of Treaties, an unratified treaty is still part of the “jus cogens”, and can therefore be used as an instrument of interpretation, provided it does not contravene the norms of international law. Having clarified the point, it must be noted that the aforementioned Nassau Convention, which is the precursor to the TALM, also contains similar rules relating to the application and scope of the Convention (Article 2), the appointment of the Central Authorities of the contracting countries (Article 3), as well as on obtaining evidence in the requested countries (Article 4), highlighting, for what is relevant, the rule contained in the cited numeral 4: “… The assistance referred to in this Convention, taking into account the diversity of the legal systems of the States Parties, shall be based on requests for cooperation from the authorities responsible for the investigation or prosecution of crimes in the requesting State” (The emphasis is ours), that is, both the TALM and the Nassau Convention establish that the requests made to the Central Authorities, be they the Ministry of Government and Justice, the Office of the Attorney General, the Office of the Prosecutor General, or any governmental entity freely chosen by the Signatory States, are procedures carried out solely through 'requests for cooperation' or 'assistance', but neither body of norms ever refers to the term 'jurisdictional resolutions between Authorities' of investigation or prosecution, since they are requests made to the Requested State, which are processed in accordance with its domestic law (Article 10, first paragraph of the Nassau Convention). In this regard, precisely vote 2011-11969, at fourteen hours and thirty-four minutes, on September seventh, two thousand eleven, from the Constitutional Chamber, issued with reference to the constitutionality of the Bill Approving the Nassau Convention, maintained that: “…The Convention is composed of forty articles, and was signed in the City of Nassau, Bahamas, during the twenty-second regular session of the General Assembly of the Organization of American States, on May 23, 1992. The bill proposes a multilateral response aimed at combating the scourge of organized crime; updating, improving, and homogenizing the internal legislation of the Inter-American System. Mutual assistance covers investigations, trials, and proceedings in criminal matters referring to crimes that the requesting State must hear (Article 2). It states that the principle of double criminality is enshrined, in that assistance shall be provided even if the act giving rise to it is not punishable in the requested State but is –with a penalty exceeding one year– in the requesting State, except in the case of the application of precautionary measures (Articles 5 and 6). The procedural acts in which assistance shall be provided are listed, including the transfer of detained persons (Article 7) and the possibility of denying the requested assistance (Article 9). It also regulates the procedure for request, processing, and execution of assistance (Articles 10 to 16); the manner in which resolutions, orders, and judgments and the appearance of experts and witnesses must be notified (Articles 17 to 23); the manner of sending information and records (Articles 24 and 25); and the assistance procedure itself (Articles 26 to 31). Finally, the final clauses are listed (Articles 32 to 40), which allow States to formulate reservations, and regulate the ratification and entry into force of the Convention. The broad possibilities States have to deny assistance when they deem it appropriate must be highlighted, as well as the important figure of the transfer of detainees which –being a temporary measure– is far from the extradition process and significantly facilitates the purposes of the Convention. In general, it can be indicated that this interstate assistance convention in criminal matters is a legal instrument that ensures the application of criminal law in a society where criminality is increasingly organized and transcends borders. The signing of this Convention allows the American states to facilitate the application of criminal procedures, especially in cases where no bilateral treaties exist. It must also be clear that the treaty must be interpreted in accordance with the domestic regulations on the matter (in particular Articles 5, second paragraph; 7, subsection i; and 20, subsection c, which are optional provisions; and 24, subsection 2, which requires an order from a national judge in domestic regulations) and that all those situations not contemplated in the Convention shall be supplemented by the legal system in general, including for this purpose the various international instruments in force in criminal matters…”(The emphasis is ours), the highest constitutional body of our country concluding, regarding the approval bill for the Nassau Convention –which later became law of the Republic and remains in force today–, that Costa Rica, as a State from which assistance is requested (Requested State), must provide collaboration or assistance in accordance with its domestic regulations, making use of its traditional legitimate means to safeguard the rights of those on whom cooperation is requested and even emphasizing that those means in force in the country be used to protect the rights of the subjects whom the evidence could prejudice, the judgment in question not referring at any time to the formal requirements necessary to make a request as a Requesting State, much less to the need for an endorsement or jurisdictional order at the time of requesting assistance, which was contemplated for those cases in which the evidence must be gathered in our territory, as part of the obligations acquired with the signing of the Treaty as the Requested State. In this regard, it should be noted that the ruling refers to Articles 5, second paragraph; 7, subsection i; and 20, subsection of the Convention as optional provisions of the State from which legal assistance is requested (Requested State) and to norm 24, subsection 2 of that same regulatory body as the sole requirement under which the referral of documents, information, and records requires, by Costa Rica as the Requested State, the respective judicial order, reiterating that in light of the bill for the Nassau Convention, the precursor to the TALM, our highest constitutional body never indicated as a validity prerequisite for the request for Costa Rican cooperation to other Central American States and Panamá, the requirement of an endorsement or jurisdictional order emanating from a Judge to request before the other Signatory Countries, but rather that the jurisdictional order requirement was determined solely and exclusively for those cases in which our country is requested to deliver information to the States requesting assistance, that is, it is a reasoning clearly consistent with the purpose of the Convention, insofar as it seeks absolute respect for the domestic regulations of each contracting country, the assistance being a merely administrative aid mechanism for obtaining evidence, Costa Rica or any other country party to the Convention as a Requesting State, without violating the principle of sovereignty, not being able to order the Requested State to gather evidence through a jurisdictional order, since the manner in which the assistance is carried out is the power of the Requested State, according to its internal provisions, it being that in the Costa Rican case, such assistance once managed by the Requesting State, could well be gathered with the formalities required in norm 24 of the Political Constitution, by strict application of numeral 24 of the Nassau Convention, which reads: “In cases where assistance is appropriate under this Convention, upon request, and in accordance with internal procedure, the requested State shall provide the requesting State with a copy of the documents, records, or information of a public nature that are held in the government agencies and departments of the requested State. / The requested State may provide copies of any document, record, or information held in a government agency or department of said State that are not of a public nature, to the same extent and subject to the same conditions under which they would be provided to its own judicial authorities or other authorities responsible for law enforcement. The requested State may, at its discretion, deny totally or partially a request made under this paragraph” (The emphasis is ours). As can be deduced from norm 24 of the Convention and from the aforementioned Constitutional Chamber vote 2011-11969, the obtaining of evidentiary material in Costa Rica as the Requested State must be done in accordance with the legal provisions of our legal system, such that, if domestic law requires the issuance of an order from a Judge to access the requested information, its issuance will be essential; however, that same action is not applicable in the scenario where Costa Rica requests information from another country (Requesting State), according to what is inferred from the same cited ruling 2011-11969: “… Faced with a potential provision of assistance that may be considered harmful to the fundamental rights of the subject of the collaboration, the traditional remedies provided for the protection of said rights in our legal system may be used. For the foregoing reasons, it is an instrument that conforms to basic constitutional values and principles, and therefore is substantially consistent with the constitutionality parameter…” (Constitutional Chamber of the Supreme Court of Justice, vote 2011-11969, at fourteen hours and thirty-four minutes, on September seventh, two thousand eleven. The emphasis is ours). Added to the preceding body of interpretation, it is notorious that the TALM, as it is derived from the Nassau Convention and adopts the same mechanism for obtaining evidence in the Requested States, in no way presents clashes with constitutionality, according to the opinion expressed by the Constitutional Chamber in vote 1997-04711, at sixteen hours and twenty-one minutes, on August nineteenth, nineteen ninety-seven, which resolved a constitutional consultation on the bill approving the Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (TALM), now a valid law of the Republic. The aforementioned vote 1997-04711 established in its interpretation, first, the purposes of the Treaty and second, the questions about the constitutionality of the mechanism for obtaining evidence once the request from the Requesting State is received in Costa Rica as the Requested State, finally determining, our Constitutional Chamber, the non-existence of constitutional clashes, even when the Costa Rican Office of the Attorney General is assigned functions of an administrative nature. Indeed, the cited vote, in what is relevant, determined: \"…IV. Regarding the substance of the matter, it is considered opportune to render a non-binding opinion, to indicate that through the Treaty, according to the Executive's statement of motives, the aim is to fulfill the following purposes: \"The States of the Central American Isthmus have signed this Treaty with the aim of creating a legal framework that allows them to mutually assist each other in criminal cases being heard in their respective Courts of Justice. However, the signatory countries have deemed that this assistance is limited to aspects ancillary to the process, which do not prejudice the sovereign duty of each State to administer justice. In this sense, its purpose is to facilitate the execution of a procedural act in those cases where the collaboration of authorities from another State is necessary. The assistance contemplates the following aspects: taking of testimonial statements, obtaining and executing means of evidence, notification of judicial resolutions, execution of precautionary measures, location of persons, as well as any other type of assistance agreed upon between two or more States Parties. However, considering that there are certain competencies that require a specific Agreement for their execution, this Treaty excludes from its scope of application aspects related to fiscal matters, the detention and extradition of persons, the transfer of criminal proceedings, and the transfer of convicts for the purpose of serving criminal sentences in other countries.\"/V. First, it is simply necessary to clarify that although the text of the convention permits the execution of measures capable of eventually harming fundamental rights, such as, for example, access to data, the seizure or confiscation of objects; the delegation of the action to a jurisdictional authority and the mandatory subjection to the domestic regime of each country on the matter eliminate any possible contradiction with the Fundamental Charter./Finally, the Chamber does not find it contrary to the Constitution that the Office of the Attorney General of the Republic was foreseen as the 'central authority' for processing requests for assistance, because the treaty itself clarifies that it does so as an administrative authority (Article 3) and its function consists of referring the petitions to the competent jurisdictional authority, which, ultimately, will execute the requested act…” (Constitutional Chamber of the Supreme Court of Justice, vote 1997-04711, at sixteen hours and twenty-one minutes, on August nineteenth, nineteen ninety-seven. The emphasis is ours). A constitutionality criterion which, moreover, was reiterated in judgment 2001-04248, at fifteen hours and four minutes, on May twenty-third, two thousand one, from the same Constitutional Chamber, when resolving an unconstitutionality action against Article 13 of the TALM. On that occasion, our highest constitutional body, when studying the procedure adopted by the Treaty for obtaining documentary evidence, established the unnecessary consular processing as a mechanism for evidentiary validation, provided that said diligence had been carried out in accordance with the norms of the domestic law of the Requested country, by stating: “…From reading the questioned article, this Court verifies that it provides the guidelines for sending a copy of public documents as a consequence of a request for assistance required by one of the States party to the Mutual Legal Assistance Treaty in Criminal Matters, indicating that the documents shall be supplied under the same conditions as they would supply them to their own authorities responsible for enforcing the law. Said documents must be prepared by the official of the requested State in charge of keeping them in custody and certified by the Central Authority, using a seal whose format appears in the annex of this Treaty.

That is, although the rule exempts copies of requested documents from the process before the consular notary, the truth is that it establishes a mechanism that guarantees the veracity and authenticity of their content by requiring that such documents be formed by the official responsible for keeping them in custody and certified exclusively by the Central Authority (as indicated for each Contracting State in Article 3 of the Treaty), by means of the seal designed for that purpose; a mechanism that is consistent with the principle of due process (debido proceso) inasmuch as, in each case, the competent authorities of the Requested State have prepared, and exercised control over, the actions indicated by the rule, Nombre02 such as the document having been certified by the respective central authority, so that the requirements of due process at the constitutional level have been satisfied…” (Constitutional Chamber of the Supreme Court of Justice, opinion 2001-04248, of fifteen hours and four minutes, of May twenty-third, two thousand one). A position that reaffirms the thesis that the mechanism for obtaining evidence must be the one followed by the internal legislation of each Requested Country, and the prior issuance of a jurisdictional order originating from the Requesting Country cannot be interpreted as a validity requirement. Furthermore, this same approach was reiterated more recently by the Constitutional Chamber, in ruling 2011-002074, of seventeen hours and forty-three minutes, of February fifteenth, two thousand eleven, when resolving an action of unconstitutionality filed against Articles 2.5 and 12.1 of the TALM, in which, although it rejected it outright, it determined regarding the request for assistance from the Requesting State, that: “…Note that the assistance provided for in the aforementioned Treaty contemplates the taking of witness statements, the obtaining and execution of means of proof, the notification of judicial decisions, the execution of precautionary measures, the location or localization of persons, Nombre02 as well as any other kind of assistance agreed upon between two or more States Parties. Rules that exclude from their scope of application matters related to tax matters, the detention and extradition of persons, the transfer of criminal proceedings, and persons deprived of liberty, with the objective of serving criminal sentences in other countries. It is clear that, despite the fact that the integral literal text of the agreement empowers the eventual execution of measures restrictive of fundamental rights, such as, for example, access by jurisdictional authorities competent according to the internal law of each Social and Democratic Rule of Law State to data, the apprehension or seizure of assets; that subjection rules out any contradiction with the Law of the Constitution, where what is relevant lies in the non-interference with the exercise of the natural function of entities of another Branch of Government (See resolution number 1997-04711, of 16:21 hours of August 19, 1997, Constitutional Chamber, Supreme Court of Justice)…” (In the same sense, Constitutional Chamber of the Supreme Court of Justice, opinion 2001-4248, of fifteen hours four minutes, of May twenty-third, two thousand one). Finally, from the letter of the TALM and the principle of sovereignty of States, it is possible to conclude that the evidentiary elements gathered in the Requested States Nombre11 that have been formally processed by the Central Authorities previously established in the Contracting States and where the internal formal procedures in their obtention have been followed shall be valid, just as Costa Rica has recognized, as part of the obligations acquired upon ratifying the Model Treaty on Reciprocal Assistance in Criminal Matters (Tratado Modelo de Asistencia Recíproca en Asuntos Penales), in the report of April twenty-eighth, two thousand eleven, sent to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, formed since the year two thousand, by Ministers of Justice and Attorneys General of the Nombre10 countries of the Organization of American States. In that document, our country admitted before the rest of the Signatory States of that normative body, the existence and validity of national and international procedures assumed by Costa Rica, aimed at obtaining evidentiary elements in the investigation of criminal proceedings, among which the mechanism accepted with the ratification of the TALM stands out widely, with no limitation or reservation in this regard being denoted or derived from that chronicle, but rather a strict adherence to the principle of good faith in the interpretation of the Treaty (Article 31 of the Vienna Convention on the Law of Treaties), by recording as part of the Costa Rican legal system: \"...several means for the receipt of requests and their processing, one at the internal level, and the remaining ones, at the international level, which derive from the signing of agreements referring to different matters that in turn allow reciprocal judicial assistance:/1.-At the level of national legislation, for use in those cases where no international agreement exists that provides for the corresponding matter of assistance, we have what is established in Articles 705 and following of the Civil Procedure Code (Código Procesal Civil), which establishes the Title on “Efficacy of foreign judgments and awards”, a mechanism devised to provide international judicial assistance./ Likewise, we have Law No. 7786 of April 30, 1998 (Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use and Related Activities), reformed by No. 8204 of December 26, 2001, related to the topic of drugs, whose numeral 8 concisely contemplates powers to provide and obtain judicial and police collaboration in this matter. Likewise, Article 65 of the Criminal Procedure Code (Código Procesal Penal) attributes to the Public Prosecutor's Office (Ministerio Público) the possibility of forming joint investigation teams with foreign or international institutions./2.-Regarding the system of judicial assistance predetermined by international agreements, it is necessary to point out that Costa Rica does not have a single central authority, but rather has several central authorities to fulfill its international obligations, in accordance with the treaties in force, for the sending and receiving of requests for mutual assistance in criminal matters./After more than three years of conversations with the Ministers of Foreign Affairs and Worship, Ministers of Justice, and the Attorney General of the Republic, the President of the Republic Oscar Arias Sánchez and the Minister of Justice Laura Chinchilla Miranda, issue decree Number 34501-J, published in La Gaceta of May 7, 2008, naming the Office of the Prosecutor General (Fiscalía General) as central authority for the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, ratified by Costa Rica since the year 2002. Likewise, the President of the Republic and the Minister of Justice approved decree number 34543-J, in which the Office of the Prosecutor General of the Republic is designated as the Central Authority to channel reciprocal judicial assistance and technical cooperation, provided for within the framework of the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. The Prosecutor General entrusted the OATRI with the work of central authority in these two conventions by administrative resolution number 74-08 of June ninth, two thousand eight and by administrative resolution number 167-2008 of September 8, 2008./The system imposed by the United Nations Convention against Transnational Organized Crime and by the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, establishes the intermediation of the central authority, in these two cases the OATRI, which will have the obligation to process the request for assistance./The central authorities in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and in the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras and Panama, are the Costa Rican Drug Institute (Instituto Costarricense sobre Drogas) and the Attorney General's Office of the Republic (Procuraduría General de la República), respectively./ Regarding the Central American Treaty on Mutual Legal Assistance in Criminal Matters, the system imposed by said agreement establishes, in principle, the intermediation of a central authority with sufficient administrative capacity, which will be in charge of processing the request for assistance, which it will proceed to refer to the competent jurisdictional authority, which will ultimately process the judicial requirement made, all in accordance with the current regulations of the legal system of the Requested State. This work, in the case of Costa Rica, currently falls on the Attorney General's Office of the Republic, in accordance with Article 2 of the cited international text, with the Office of the Prosecutor General of the Republic being the recipient of requests at the national level for the Judicial Branch...\" (Report delivered by Costa Rica, on April twenty-eighth, two thousand eleven, to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, in Http://www.oas.org/juridico/mla/sp/index.html. The underlining is ours), the latter cooperation mechanism that has remained in force, even though it has been reviewed on several occasions by the Costa Rican Constitutional Chamber, by means of the votes cited above. Based on the foregoing and in strict adherence to the purpose of the TALM, this Chamber considers, by the indicated majority, that the procedure used to obtain the bank records of the company [Name 215] in Panama, was supported by law, inasmuch as the Costa Rican Public Prosecutor's Office (Ministerio Público), was empowered by numerals 62 of the Criminal Procedure Code and 2 of the Organic Law of the Public Prosecutor's Office (Ley Orgánica del Ministerio Público), as the criminal prosecution body, to process the assistance and investigation within the terms of application of the TALM, before the Costa Rican Attorney General's Office, just as happened in the particular case with the request for assistance directed to the Republic of Panama, the issuance of a Costa Rican jurisdictional order at the time of requesting it being unnecessary. Now then, regarding the administrative and non-jurisdictional formalities that should have been fulfilled at the time of processing the respective cooperation to the Costa Rican Central Authority to the Requested State, it remains to be noted that Article 3 of the TALM, is what determines the procedure to be followed in the Requesting State, by regulating that the provision of evidence (probanzas) between the Contracting Countries shall be governed by the internal law of each country, which through the competent Central Authority “with sufficient administrative capacity”, shall have the function of processing the requests for assistance from the various Signatory Countries, with it being that immediately after said definition, Article 4 of the TALM details the requirements to be satisfied in the written request that is presented before the Requested Country, within which the following are distinguished: “a) The competent authority requesting the assistance. b) Purpose of the request and description of the assistance requested. c) Description of the facts constituting the offense for which assistance is sought in accordance with the laws of the Requesting State. The text of the pertinent legal provisions must be attached or transcribed. d) Detail and basis of any particular procedure that the Requesting State wishes to have carried out. e) Specifications on the time limit within which the Requesting State wishes the request to be fulfilled. 2.- In pertinent cases, the request for assistance shall also include: a) The available information on the identity and presumed whereabouts of the person or persons to be located. b) The identity and presumed whereabouts of the person or persons to be notified and the connection that said persons have with the case. c) The identity and presumed whereabouts of those persons required in order to obtain evidence. d) The description and precise address of the place subject to search and of the objects to be seized; and e) Any other information that may be necessary for the execution of the request for assistance…” (The underlining is ours). Deriving from this rule, as a first requirement, the specification of the “Competent Authority” requesting the assistance in the Requesting Country, with it not being possible to infer from this phrase, as the Court of Appeals of Judgment (Tribunal de Apelación de Sentencia) seems to understand it in the challenged judgment 2012-2550, the formality of the prior issuance of a “judicial resolution” issued by a “competent jurisdictional authority” of the Requesting State, because this fourth article refers to a “competent authority”, immediately after the State Parties to the Treaty designate for each of their territories, the respective administrative Central Authorities responsible for centralizing and directing the requests for assistance from their counterparts. Likewise, it is unquestionable that subsection two of article 4 of the TALM refers to the term “request and description of the assistance requested”, but not to the concepts “resolution”, “ruling” or “jurisdictional order”, meaning that the petition of the Requesting State could not mean that a Judge of that State orders the Central Authority of the Requested State to obtain evidence in its territory, first: because judicial action in any State is limited by the very concept of jurisdiction (jurisdicción), understood as: “the public function of administering justice, emanating from the sovereignty of the State and exercised by a special body (…) Since jurisdiction is an emanation of the sovereignty of the State, or better, sovereignty applied to the function of administering justice, we can say that the limits of the former are the same as those of the latter, that is, limit as to territory and limit as to persons; where and to whom it applies…” (DEVIS ECHANDÍA, Teoría General del Proceso, Editorial Universidad, Buenos Aires, 1984, p.73 and 99), so that, if that resolution exceeds the population and territorial limits over which the Judge can act, an excess would have occurred, which would have the effect of invalidating the evidence (probanza) obtained. Second, unlike a jurisdictional resolution that has the virtue of being enforced even by force, the management of assistance or collaboration in the Requested country is optional or discretionary, since if the request shows non-compliance with one or several of the requirements contemplated in articles four and six of the TALM, the Requested State may condition its sending, or else, completely refuse to send the evidence. In the third place, the issuance of a judicial order emanating from the Requesting Country, Nombre05 an inopportune interference of the petitioner in the internal law of the country from which assistance is requested, which entails an inconceivable violation of the principle of sovereignty of States. Having clarified the questions, regarding the powers granted in the TALM, it is necessary to analyze the internal legislation of Costa Rica regarding the right to privacy of communications and the necessary issuance of a judicial order to access that information. Thus, although Article 24 of the Political Constitution establishes that: “…The 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 determine in which cases the Courts of Justice may order the seizure, search, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance (…) Judicial resolutions protected under this norm must be reasoned and may be executed immediately. Their application shall be the non-delegable responsibility of the judicial authority (The underlining is ours), the truth is that, in our territory, Article one of Law 7425, Law on the Search, Seizure, and Examination of Private Documents and Intervention of Communications, grants the exclusive competence to order the search and seizure of private documents to Costa Rican Judges, who, by means of a founded judicial resolution, may order such diligence, authorizing “…the search, seizure, or examination of any private document, when it is absolutely indispensable to clarify criminal matters submitted to their cognizance…”(Article 1 of Law 7425. The underlining is ours), and being able as part of their attributions to “…order, ex officio, at the request of the police authority in charge of the investigation, of the Public Prosecutor's Office, or of any of the parties to the proceeding, the search, seizure, and examination of any private document, Nombre11 that may serve as indispensable proof in the commission of some criminal conduct…” (Article 2 of Law 7425). From the foregoing premises and the treatment that our legal system grants to the right to privacy of communications, it is evident that our Judges lack the power and jurisdiction for their provisions, embodied in a judicial resolution, ordering the breach of the fundamental right of secrecy of communications, to transcend our territory, and they also lack the legal authority to direct public officials of another country in obtaining the evidence (probanzas) necessary in the investigation of criminal cases, since their powers of coercion are limited to Costa Rican territory (Cf. Article 1 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial)) and to the personal action, comprised in Article 2 in fine, of Law 7425. In light of these premises, for the majority of this Chamber, the procedure assumed by the TALM aimed at obtaining evidence in the investigation of criminal matters is in accordance with the law, since if hypothetically the requirement of a judicial order in Costa Rica were assumed, in adherence to the safeguard of the rights of the person under intervention, our Costa Rican Judges, as part of the obligations contained in our internal law, would even have had to notify and personally deliver “…a copy of the judicial order authorizing it, to the person whose documents are searched or examined. A record of this shall be drawn up, of which a copy shall also be given to him, upon concluding the diligence...” (Article 4 of Law 7425. The underlining is ours), an unimaginable action when it involves the jurisdiction of another country. On this particular point, precisely, this Third Chamber, in opinion 2008-1061, of ten hours, of September twenty-second, two thousand eight, when resolving a case in which, to carry out an anticipated taking of evidence (anticipo jurisdiccional de prueba), the Costa Rican Criminal Judge traveled to a Consular Office, established that such diligence could not be carried out in a territory outside our own, by stating that: “…Regarding the lack of competence of the Criminal Judge who directed the act (…) In relation to this topic, what is established in Article 132 of the Criminal Procedure Code is basic, which clearly provides that: “…The court may be constituted in any place in the national territory, when it deems it indispensable to directly hear decisive evidentiary elements in a case under its cognizance and competence (…) It is evident that a Judge cannot carry out a jurisdictional act in another country, since such power to resolve finds its limit in the territory in which it was granted, and in that regard, the action of Judge R.G.V., of traveling to Colombia to personally direct the statement that through anticipated taking of evidence was given by xxxx, violated the principle of sovereignty of that country …” (Third Chamber of the Supreme Court of Justice, opinion 2008-1061, of ten hours, of September twenty-second, two thousand eight, underlining is ours). Now then, in relation to the topic of the order as a requirement to opt for assistance to Panama in the present case, the majority of this Chamber does not observe any defect to declare in the procedure followed to collect the bank movements of the accounts of the company [Name 215] in Panama, inasmuch as the regulations contained in Article 24 Constitutional and Law 7425 are only referred to those cases in which the obtention of evidentiary elements found in Costa Rica is intended, or failing that, when our country acts as a Requested State, according to the TALM, insofar as it involves a judicial resolution, which may well be executed by force, a latter requirement not contemplated for cases in which our country acts as a Requesting State, since under no circumstances does the Costa Rican Judge have the legal power to give orders to foreign Authorities. In this regard, see that Article 12 of the TALM prohibits the Requesting States from imposing their internal law, given that the Treaty is nothing more than an agreement in which voluntary action and good understanding of the Contracting Countries prevail, those that commit, through the signing of that Convention, to act in the search for the requested evidence under their internal law, it being possible to derive from the mentioned Article 12 in concordance with rule 4, both of the TALM, that the request for the delivery of evidence between signatory countries must be made through the competent Central Authority of the Requesting State explaining the facts investigated, the alleged crimes for which the assistance is processed, its purpose, and the detail of the evidentiary elements requested, this for the purpose of corroborating the requirement of double criminality (bilateralidad) of the illicit conduct investigated and highlighting its denial or conditioning. Having clarified the point, it remains to analyze the procedure followed in the sub examine to obtain the Evidence in Panama. Precisely, from the study of the case file, it is possible to infer that on May twentieth, two thousand four, the Office of the Prosecutor General of the Republic of Costa Rica, petitioned under the protection of Articles 2, 3, and 4 of the TALM; 62, 65, 154, 180 and 181 of the Criminal Procedure Code, and 41 of the Political Constitution, formal Reciprocal Judicial Assistance (Cf.f.14-26 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] ), before the Attorney General's Office of the Republic of Costa Rica, in which it was requested to investigate all bank movements of account No. [Value 041] of BAC International Bank in Panama, in the name of the company [Name01 215] ., file number 413986, “…from its opening and up to the date, Nombre02 as well as the opening file of the same and all documents that have been presented to the Bank by whoever is authorized on the same...”(Cf.f.23 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] ), as well as that “…instructions be issued to the National Banking System of Panama in order for it to indicate if the cited company [Name02 215] has accounts or investments in any Bank, Brokerage House, or financial entity of any type and the detail thereof. If accounts exist, ALL documentation since it was opened is necessary…” (Cf.f.24 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] , the capitalization belongs to the original. The underlining is ours). An organ, which in accordance with the mechanism devised in the TALM, forwarded the request administratively to the Central Authority of Panama, that is, to the Panamanian Ministry of Government and Justice, not without first stating that: “…If an order from a competent judicial authority is necessary to collect the evidentiary elements, in compliance with the legal system of the Republic of Panama, the undertaking of the pertinent steps for this purpose is respectfully requested, for each of the Banks of the National Banking System of Panama, and especially in BAC International Bank (Panama Inc.)…” (Cf.f.11 and 27 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] . The underlining is ours). As part of the rules of Panamanian internal law, the National Directorate for the Execution of Mutual Legal Assistance Treaties, attached to the Panamanian Ministry of Government and Justice, referred, through official letter No.193-DN-TALM-04, dated June first, two thousand four, the Costa Rican request to the Attorney General's Office of that Nation, which in turn, by unnumbered official letter of June ninth, two thousand four (Cf.f.29 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] ), ordered to commission the First Anti-Corruption Prosecutor's Office of the Attorney General's Office of that Nation in order to collect the evidentiary elements requested by Costa Rica, in reference to account No. [Value 041] of the company [Name 215] . (Cf.f.23 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] ), establishing, in what is relevant, that entity that: “…The undersigned Attorney General of the Nation ORDERS: To agree to provide the required assistance within the terms made possible by national legislation, for which purpose it is ordered to commission the First Anti-Corruption Prosecutor's Office” (Cf.f.27 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] . The underlining is ours), and once the request was known in the mentioned Prosecutor's Office, it was ordered to carry out: “…Ocular Technical Inspection at BAC INTERNATIONAL BANK (PANAMA INC.), of account No.[Value 041] of the Company [Name 215]., with file number 413986, in order to inspect(sic) all checks that have been issued from that account, from its opening and up to the date, Nombre02 as well as the opening file of the same and all documents that have been presented to the Bank, to know who is or who are authorized on the same. The records of the indicated bank accounts are necessary from the moment it was opened, and must include signature cards, documents related to the opening of the account, general ledger cards of accounts, periodic account statements, records of deposits and withdrawals, instructions related to the receipt or transfer of funds to or from the account, whether by fax, email, or any means of communication. Correspondence to, from, or in favor of the account holder(s), memoranda related to the account, cashier's checks and documentation for the purchase of cashier's checks, balances, closing dates, inactivity, or any other document held by the cited account. All duly authenticated by the bank representatives…” (Cf.f.33-34 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] . The capitalization belongs to the original), with that entity appointing in the same act an expert for the purpose of verifying or ruling out possible irregularities in the Panamanian legal system. The ocular inspection diligence was carried out on Friday, July thirtieth, two thousand four, in Panamanian territory, through the First Anti-Corruption Prosecutor of the Attorney General's Office of the Nation, Licenciada Cecilia López, who at the request of expert Nombre79, previously appointed for the execution of the diligence, seized the following documents: “a) The Account Statements of [Name02 215] . No. [Value 041], from the month of August 2002 to May 2004. b) Application for opening account [Name01 215]; crossed communications. c) Copy of money transfer made on April 28, 2004, for the amount of B/.1,060,000.00. d) Copy of public deed No.2,054 of May 1, 2002. f) Copy of the checks in the name of [Name01 215]…” (Cf.f.49 of the Amparo de Prueba No.588, Judicial Assistance from Panama, [Name01 018] . The capitalization belongs to the original). Once the information was in the hands of the Panamanian Prosecutorial Authorities, in strict adherence to the internal law of that country, it was reviewed by the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism attached to the Ministry of the Presidency of Panama, as the cases UAF-04-06-004 [Name 215]; UAF-04-06-005 O. Name01 R. and Cia. and UAF-04-06-006 Harcourt Holdings S.A., were reported as suspicious. If one observes carefully, the procedure followed in Panama was carried out in accordance with the internal law of that country, since before sending the respective information to Costa Rica, the requested accounts were also investigated in that Nation, and according to Article 2 of the TALM, in the unnumbered report of July fourteenth, two thousand four, of the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, dependent on the Ministry of the Presidency, the officials of that entity corroborated that the alleged crimes for which our country, as the Requesting State, was investigating those companies and the accused individuals [Name01 018] and [Name01 225], were also criminalized in Panama as the Requested State, also ruling out the commission of possible criminal actions in that neighboring country.

Precisely, as a result of the investigations carried out by the Panamanian State, the report sent to Costa Rica determined that: “…One of the clients appears published in a Costa Rican newspaper, where he is mentioned in an investigation for coercion, serious threats, falsehood, concealment and destruction of documents related to the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social)./That the Office of the Attorney General (Fiscalía General) of Costa Rica, made a request for judicial assistance issued by the Attorney General (Fiscal General) of Costa Rica to Panama regarding those gentlemen for illicit enrichment, embezzlement (peculado) and others./That these cases have been requested from the UAF, through Official Communication No. 2772 of the First Anti-Corruption Prosecutor's Office (Fiscalía Primera Anticorrupción) of the Office of the Attorney General (Procuraduría General de la Nación) of Panama./In consideration of the foregoing point, we believe this case has merit to be investigated by the competent authorities…” (Cf.f.134 of Evidence Folder (Ampo Prueba) No.588, Judicial Assistance from Panama, [Nombre01 018]. The emphasis is ours). Based on the foregoing conclusions, it is possible to affirm that the referral of information to the Office of the Attorney General of the Costa Rican Republic by the Requested State was presented once that Nation corroborated the requirement of dual criminality of the criminal conduct in both countries, since if that verification had not occurred, under article 6 of the TALM, Panama as the Requested State would have had the power to deny the assistance, all the more reason to consider that within the procedure contained in the TALM, the issuance of a judicial resolution that coercively ordered the obtaining of that evidence would have implied, without further reasoning, a flagrant violation of the sovereignty of the Panamanian State and the powers that article 6 of the TALM itself grants it as a Signatory State. Ultimately, it is the opinion of the majority of this Chamber (Sala), that in the sub júdice, for the obtaining of evidence 588 in Panama, the order or endorsement of a Costa Rican judge was unnecessary, therefore, the claim of the Public Prosecutor's Office (Ministerio Público) directed against evidence 588 gathered in Panama through the TALM is granted, and the appealed judgment is annulled insofar as it acquits the defendants [Nombre01 033], [Nombre 006], [Nombre 028], [Nombre 018], [Nombre 041], [Nombre 001] and [Nombre 022], for which the Court of Appeal of Criminal Judgment (Tribunal de Apelación de Sentencia Penal), with a different composition and in strict adherence to the powers granted in article 465, of Law 8837, of May three, two thousand ten, must conduct a new comprehensive examination of this evidence together with the remaining evidence of the case.” (The highlighting is from the original). As observed, on the occasion of the cassation appeal (recurso de casación) filed by the Public Prosecutor's Office, the Third Chamber (Sala Tercera) resolved the claim that the appellants raise here, dismissing it. Not only did it conclude that Evidence No. 588 is lawful, but it ordered that the ordered remand be carried out on that premise, hence this court has no competence to resolve the point. This is a situation that is not surprising, since in proper appellate technique, the limits of the remand are defined by the reviewing body that orders it. It is important to emphasize that although this decision, Nombre02 like others adopted by the Third Chamber, were not included in the operative part, this in no way relieves these second-instance judges of the obligation to respect them, since the cassation judgment, like any other, is a logical-legal unit that must be understood comprehensively. In addition to this, it is also necessary to add that it is not ignored that the criterion expressed by the Third Chamber in this matter differs from that assumed by that same office (composed of titular magistrates) in case file Nº 04-005356-0042-PE, specifically, in resolution Nº 499 of 11:45 hours on May 11, 2011, and in which, by a majority vote, 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 (Nombre06.), was declared, Nombre02 as well as that of the evidentiary elements deriving from it. However, the contradiction that may arise between the aforementioned judgments, or between this resolution and the mentioned N° 499, is a problem that eventually, if that were the case, the cited Chamber must resolve, given that what corresponds to this Court of Appeal of Criminal Judgment is to examine the appeals in the terms ordered by the superior body for this specific case, namely, starting from the premise of the legitimacy of Evidence No. 588. Having said the foregoing, the undersigned conclude that the other defects claimed in the appeals (where other additional arguments presented by the trial court are questioned to, despite not having had an order issued by a Costa Rican judge, legitimize Evidence No. 588, that is, these are additional reproaches but Nombre11 related to the questioning of the legitimacy of that Evidence No. 588, given that this—it is reiterated—was already established and declared by the Third Chamber), in light of the criterion expressed by the Cassation Chamber for this case, would be inconsequential, to the point that—even—hypothetically admitting their existence, what was resolved would remain unchanged. The a quo noted that there was no resolution by a national judge that lifted the bank secrecy (secreto bancario) of the account of [Nombre01 215] in the case known as CAJA-Nombre01 and that it was indispensable (this can be extracted from folios 15,336 and 15,337 front of tome XXXI). Notwithstanding this, for the majority vote, Evidence No. 588 (which is, in essence, documentary evidence related to the mentioned bank account and which arrived in the country in September 2004), is lawful, so it will be stated as follows: i) [Nombre01 158], in his personal capacity and as unlimited general agent without sum limit and sole shareholder of the company [Nombre01 215]., constituted in Panama, authorized on May 17, 2010, the obtaining and use of the bank documentation obtained in that country corresponding to the checking account No. [Valor 041] of BAC International Bank (Panama) Inc., of his represented entity (f. 15,338 front to 15,372 front); ii) there is independent evidence prior to No. 588 that also guided the same line of investigation: “See, for example, that according to the journalistic publications of Evidence No. 592.9 'Monitoring of written press from December 9 to 31, 2004', folios 1, 5 and 6 to 11, it is through a report by Nombre49 and Nombre80, journalists from a national print outlet, that on April 21, 2004, readers are informed about a house located in [...] that the then Executive President of the Costa Rican Social Security Fund and defendant in this process, [Nombre01 018], was renting to the person who at that time was the financial manager of Corporación Fischel. Also in the publication of April 27, 2004, from folio 36, Evidence No. 682.1, the appearance of [Nombre01 018] before the Congress of the Republic after his resignation as Executive President of the Costa Rican Social Security Fund is made known, at which time the accused acknowledges having offered $700,000 to buy the house [...] that had been rented to him by [Nombre01 225], noting that in August and October he visited the dwelling, which was the only one he and his family liked, a house later acquired by the former financial manager of Corporación Fischel, a participant in the sale of goods and services to the Costa Rican Social Security Fund for millions of sums, it being indicated on that occasion that the newspaper in charge of the dissemination of these facts had requested and received from the C.C.S.S. information related to the different described contracts. The foregoing is important because according to the request on folios 14 to 28 of Evidence No. 588, that information was managed by the Prosecutor's Office before the Office of the Attorney General of the Republic on May 20, 2004—according to the stamp on folio 2—and the bank documentation related to the account of [Nombre01 215]. was received by the Prosecutor's Office on September 10, 2004, so the existence of two independent evidentiary sources prior to said investigative action by the Public Prosecutor's Office is clearly noted. Observe that the revelation of the facts based on the original journalistic report and subsequent publications, according to Evidence Nos. 529.9 and 682.1, date back to April 2004, that is, more than one month before the Prosecutor's Office took the initiative for the collection of the described bank information, so it could even be affirmed, without room for error, that it was the disclosures in the national press that triggered the investigation in the judicial venue of the well-known Caja-Fischel case. On the other hand, the defense also questions the request and the order to lift bank secrecy issued by the criminal judge regarding the bank account of [Nombre 058]. in Banco Cuscatlán and the authorization of [Nombre01 028] and [Nombre01 221] to obtain information from said account, topics that have already been analyzed and that, therefore, are now brought up only to address the allegation that this evidence is also unlawful—according to the defense—for being dependent on the bank documentation of the account of [Nombre01 215] .. It must again be pointed out that, in the opinion of this panel, the bank documentation that makes up Evidence No. 588 is lawful but, as an intellectual exercise aimed at guaranteeing the rights of the defendants and due process, hypothetically assuming that in the collection of Evidence No. 588 the lifting of bank secrecy ordered by a jurisdictional body had not occurred and that there was also no legal and valid authorization from the account holder or its administrator for the obtaining and use of such documentation, there are also prior and independent sources to that information. As previously explained, the data revealed by the national press spawned the prosecutorial investigation in the referred 'Caja Fischel' case and in the scenario now assessed, a similar conclusion is appropriate. The requests from the prosecutor's office for the lifting of bank secrecy of the account of [Nombre01 058]. in the various financial entities that make up the Grupo Cuscatlán are dated September 17 and 29, 2004. The resolutions accepting them date from September 21 and 29, 2004 and the requested bank information is delivered to the prosecuting body on September 28 and 29, 2004, according to notes on folios 5 and 90 of Tome I. However, before the Prosecutor's Office became aware of the requested data, the national media were already revealing details about [Nombre01 058]. and his link with [Nombre01 091] and directors of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). Note that the report by journalists Nombre09 and Nombre03, folio 19 of Evidence No. 592.1, although published on September 28, 2004, in a national circulation outlet, the information had been compiled since the previous day, that is, September 27, 2004. The news reports that two ICE directors had received $3.6 million that came from [Nombre02 060] , indicating the money transfers to [Nombre01 064] and to [Nombre 022] through the latter's company [Nombre01 300] and the wife of the second, Mrs. [Nombre02 080]. It was said that the funds were transferred from the account that [Nombre 058] maintained in the Cuscatlán International Bank and that he had received such moneys from the account of [Nombre01 060] with Banco ABN AMRO. It was also mentioned that representatives of the journalistic outlet, on September 27, had contacted [Nombre01 080] by telephone at her home and she had told them she would provide information later, although afterwards she did not answer their calls, while [Nombre01 064] did not respond to messages and [Nombre01 022] explained he had hearing problems, also attempting—unsuccessfully—to consult [Nombre01 041], although communication did occur with [Nombre01 095] and with [Nombre01 028]. It was reported that from the account of [Nombre 058]. payments had been made to companies, individuals and politicians, citing the transfer of $100,000 to [Nombre 213], who explained that it was a donation from [Nombre02 091] to the political campaign of President Nombre81; reference was also made there to moneys received by [Nombre01 063] that passed through the account of [Nombre 215]. of the president of the Corporación Nombre01[158] and to other persons consulted by the journalists. At folio 20 of Evidence No. 592.1 (the originals of which appear attached to folios 2 and 3 of Tome I) there also appears the publication of the journalistic interview conducted that same day with [Nombre01 213] , who acknowledged having received the contribution from [Nombre01 091] to Nombre81's campaign after a meeting at which the defendant [Nombre01 041] , manager of said company, and a 'French gentleman' whose name [Nombre 213] told the journalists he did not remember, had been present. On the other hand, at that time the described bank documentation reveals the transfers from [Nombre01 060] to [Nombre01 058], but not its detailed analysis, which is possible much later with the intervention and study of the experts from the Accounting and Financial Studies Section of the OIJ. Hence, it cannot be dismissed that in the interim, that is, while the bank data mark new paths in the investigation and its concordance with each of those implicated, other revealing sources of information also emerge independently of the cited source No. 588. There are multiple elements that could be cited, but suffice for example:

- all the information compiled by the declarants [Nombre02 116] and [Nombre01 164], employees of the Corporación [Nombre02 091], who recount meetings held with the defendant [Nombre02 041] in early October 2004 following the journalistic revelations linking [Nombre01 091] with payments to public officials and how in the second meeting they held with [Nombre01 041], when asking him about what was reported by the newspapers (regarding payments to [Nombre01 274] sister of [Nombre01 041], to a son of this lady and to [Nombre01 001], by [Nombre01 058], all with the intervention of [Nombre01 041]), he accepted having participated in such payments and told them about 4 people to whom they had been made, namely: [Nombre01 022], [Nombre01 001], [Nombre01 064] and [Nombre01 018], the last of whom had not even been mentioned in the journalistic reports; - Evidence No. 110 consisting of the authorizations that since September 20, 2004, both Mrs. [Nombre02 221] and the defendant [Nombre01 028] had addressed to the Grupo Financiero Cuscatlán de Costa Rica S.Nombre46. and to Cuscatlan International Bank and Trust Co Ltd., expressing that, irrevocably and unlimitedly, they authorized the supply of any type of information and/or documentation that any of the supervisory authorities of the national banking system or Costa Rican judicial authorities have requested or may request in the future regarding the operations of [Nombre02 058]., so this would also be an independent and prior channel for obtaining the described bank documentation; - the documentation provided by the Corporación [Nombre 060] , including Evidence No. 19 to 22, No. 23, No. 24, No. 25, No. 26, No. 27, No. 28, No. 29, No. 30, No. 31, No. 32, No. 33, No. 34, No. 35, No. 36, No. 36, No. 37, No. 38, No. 39, No. 40, No. 41, No. 42, No. 67, No. 69, No. 71, No. 74 and No. 75, the latter referring to the reports submitted by [Nombre02 114]. and by [Nombre 058]. in relation to the consultancy contracts; Nombre02 like that which was seized at the company [Nombre 091]: No. 55, No. 57, No. 59, No. 80, No. 81 and No. 630; - the statements of witnesses such as [Nombre01 173] and Nombre01, who not only provide information related to the facts to the Prosecutor's Office, but also contribute documentation that is later used as evidence by that representation, among others: No. 267 and No. 404; - the documentation seized at the facilities of the Costa Rican Electricity Institute: No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8, No. 9, No. 10, No. 11, No. 17 and No. 19, or requested from other government dependencies: No. 15, No. 16, No. 82, No. 85.

In conclusion, although for this court there is absolute certainty that Evidence No. 588 is lawful and only that verification would give rise to the rejection of the objection, going further and based on a hypothetical exercise in which said source is assumed to be spurious, the truth is that the petition formulated by the defense would also not be appropriate because there are independent and prior sources to the bank revelation that is branded as unlawful, both with regard to those of the 'Caja-Fischel' case and those of interest to this case.” (F. 15,377 to 15,381 front, the underline is from the original); iii) in this cause, Evidence No. 588 gathered in another process constitutes not only evidence, but also a notitia criminis. The relationship of [Nombre01 018] with the c.c. Caja-Nombre01 case came to light through a journalistic investigation made public in April 2003, one month before the bank documentation was requested from Panama. The evidence was requested to clarify the purchase of a [...], as well as the relationship between [Nombre01 018] , [Nombre01 225], the C.Nombre82 and the company Fischel. This information reached the Prosecutor's Office on September 10, 2004. Now, finding in that process and, in particular, in that documentation, proof of deposits from SNQC S.A. to the account of [Nombre01 215]. was a casual finding, because what was sought was information pertaining to the relationship between the C.C.S.S., the Fischel/ [Nombre 215] corporation and [Nombre01 018]. In that sense, says the majority vote, regarding SNQC S.A., Evidence No. 588 is a notitia criminis (f. 15,381 to 15,383 front). iv) Based on the legitimate investigations that were being carried out, it was inevitable and/or certain that the connections between [Nombre01 060], [Nombre01 058]. and the I.C.E. would be discovered (F. 15,387 TO 15,393 front). As already stated in the preceding lines, the appellants understand that the foregoing reasonings are not legitimate. In this regard, they argue that the consent of [Nombre01 158], granted years after the evidence was gathered, does not eliminate the fact that the information was collected without a judicial order lifting bank secrecy. In the same vein, the appellants say, the pieces of evidence cited by the trial court as autonomous and subsequent to No. 588 are not such, to the point that without it, the cause would not have been initiated. The same applies to what the a quo considered inevitable or casual findings in the CAJA-Nombre01 cause and which do not have that character, or regarding the consideration of Evidence No. 588 as a notitia criminis as far as this proceeding is concerned. These are arguments that were fruitlessly formulated to provide legality to evidence that from its origins presents an absolute defect that cannot be rectified, namely, having been obtained without the endorsement of a Costa Rican judge. After examining the foregoing, this Court of Appeal of Criminal Judgment concludes that, even assuming that the reasonings expressed by the majority vote are not acceptable, these are positions that were intended to legitimize evidence that, without said correctives, for the trial court was unlawful for having been obtained without a jurisdictional order. However, given that the Third Chamber concluded that said order was unnecessary, all those reasonings and the errors they may contain lose relevance, to the point that they could well be hypothetically suppressed without this implying a modification of what was agreed. Consequently, the questioning thereof by the defense would also be inconsequential. Put another way and as an example, starting from the criterion expressed for this case by the Cassation Chamber, Evidence No. 588 is not lawful because [Nombre01 158], years later, endorsed the use of the information; because there was independent and autonomous evidence to No. 588 that also guided the inquiries toward [Nombre01 058]; or because the role of the cited corporation was a casual or inevitable finding. All extremely refutable arguments. It is lawful, according to the Third Chamber, because in the case of evidence to be gathered in Panama under the shelter of the T.A.L.M., a resolution by a national judge to lift bank secrecy was unnecessary. Therefore, all the other arguments invoked by the majority vote to legitimize the evidence, to which—it is reiterated—it had to resort because it considered it unlawful given the absence of a jurisdictional order, lose significance. Finally, regarding the document that [Nombre01 158] presented to this court on August 27, 2015 (see 176,925 front, tome XLIV), in which he stated his willingness to revoke the consent he had given for the bank information of the company [Nombre01 215] to be used in this proceeding, it suffices to emphasize that the decision of the Third Chamber, in the sense of considering Evidence No. 588 legitimate, did not rely on that consent, but on the conclusion that the order of a national judge was unnecessary in the case of evidence to be obtained in Panama. Therefore, it is as inconsequential that the a quo resorted to that argument to legitimize the referred evidence, as it is that [Nombre01 158], with his revocation, sought to strip it of all value. Therefore, the objections formulated by licensed attorney Wilson Flores Fallas, defender of [Nombre01 006], and by the defendants [Nombre01 001], [Nombre01 028], [Nombre01 041] and [Nombre01 018], on a personal basis, are dismissed.

XXIII.- Cassation appeal filed by [Nombre01 001], [Nombre01 028] , [Nombre01 041] and [Nombre01 018], on a personal basis. Sole ground. Infraction of article 369 subsection j) C.P.P. Seventh point. It is intended to validate the evidence obtained through the lifting of bank secrecy of the account of [Nombre 058] in Banco Cuscatlán in the Bahamas, by means of an authorization from [Nombre01 028] that is incorrectly read. According to the appellants, the authorization that was analyzed at folio 887 (pagination of the judgment), was interpreted erroneously. The five notes signed by [Nombre01 028] and [Nombre01 221], by which they authorize the delivery of information related to the company [Nombre 058] to AUTHORITIES THAT SUPERVISE THE NATIONAL BANKING SYSTEM OR TO BANKS IN THE BAHAMAS OR JUDICIAL AUTHORITIES OF COSTA RICA (Evidence No. 110), say something different from what the court considers: “It does not authorize delivery to the Prosecutor's Office without a Judge's order, since that body is not a judicial authority. Therefore, when analyzing that lifting of bank secrecy of the accounts of [Nombre01 058] in Banco Cuscatlán, both in the Cuscatlán International Bank in the Bahamas and in those belonging to the national banking system, it is necessary to keep this note in mind, with its considerations and limitations: judicial authorities, not the Prosecutor's Office. The entire chronology of that delivery of information appears from folio 890 to 889 and can be easily read. The first order to lift bank secrecy DOES NOT INCLUDE EITHER THE GRUPO FINANCIERO CUSCATLÁN OR THE CUSCATLÁN INTERNATIONAL BANK, which can be easily concluded from folio 883 and from the reading of Folios 3841 to 3858 of the proceedings, which contains the judicial order of Judge Vargas Bonilla. The order refers to lifting the bank secrecy of the accounts of [Nombre01 058] in the entities of the National Banking System, evidently not including the Cuscatlán International Bank, not only because it does not belong to said System, but because a few days later, by judicial order, that lifting was extended. The order of September 21 is complied with by Mr. [Nombre01 229] on September 27 and 28, as indicated in the same Folio 883 of the judgment and appears at folios 6 to 13, 15 to 79 and 82 to 89 of Tome I of the main file, from which it is observed that the referred Mr. [Nombre01 229] exceeded the received judicial order and sent information from the Cuscatlán International Bank, an entity not included in the order which covered neither that entity nor the Grupo Financiero Cuscatlán, as will be seen. It is at Folio 6 where the presence of [Nombre01 091] first appears in the cause, through the transfers allegedly sent by her to [Nombre01 058]. This evidence was obtained illegally, since there was no judicial order that included the accounts of [Nombre01 058] in that international banking entity, there was no authorization from [Nombre01 028] or from [Nombre01 221] to hand over information without a Judge's order, which did not exist, nor was there even a request to lift the bank secrecy of the Grupo Financiero Cuscatlán. Therefore, it is false that this documentation was supplied with a Judge's order or with authorization from the company owning the account, and its content and scope become illegal and must be excluded from the proceedings and completely suppressed from the judgment and its assessment. More abundantly, it is through the order of Judge Nombre60 of September 29 that bank secrecy is lifted in the Grupo Financiero Cuscatlán and not before, which is recorded in folios 3829 to 3839 of Tome IX and is referred to in the judgment at Folio 880. By that date, Mr. [Nombre01 229] had already illegally sent, without a Judge's order or authorization from the account owner, information related to the operations of [Nombre01 058] in the Cuscatlan International Bank, which generates its invalidity and necessary exclusion from the process. It is clear that in the face of that illegal submission, the Prosecutor's Office rushed a day later to correct the error of [Nombre01 229] , which is understandable on their part, but the complacent attitude of the majority judges in endorsing the use of this spurious and illegal evidence can never be admitted …” (F. 17,276 and 17,277 front).

XXIV.- The appellants are not correct: As has been proven, [Nombre01 028] was responsible for receiving the money coming from [Nombre02 060] into checking account number [Valor 012] of [Nombre 058] . with the Cuscatlan Internacional Bank & Trust Co. Ltd. Once with such funds at his disposal, he had to proceed to issue instructions to the indicated bank to make the distribution of the moneys. For the defense, the information obtained in relation to the mentioned account is illegitimate, because: i) as can be deduced from the authorizations given by the account holders ([Nombre01 028] and [Nombre01 221], Evidence No. 110), the authorization was issued to deliver information to the authorities that supervise the national banking system or to banks in the Bahamas, or to judicial authorities in Costa Rica and not to the prosecutor's office, which is not a judicial body; ii) the first order to lift bank secrecy did not include the Grupo Financiero Cuscatlán nor the Cuscatlán International Bank, but only the national banking system, it being only later that it was extended. That order was fulfilled by [Nombre01 229], a person who exceeded his authority, since he sent information from the Cuscatlán International Bank. Therefore, it is false that the documentation was supplied with a judge's order and with authorization from the holders; iii) it is with the order of Judge Nombre60, of September 29, that it was ordered to lift bank secrecy in the Grupo Financiero Cuscatlán. However, by that date, [Nombre01 229] had already sent all the information generated by the Cuscatlan International Bank. In these claims, the appellants are not correct. As is well explained in the appealed judgment, specifically from folio 15,244 to 15,255 front of tome XXXI and from folio 15,665 to 15,669 front of tome XXXII, which this chamber confirmed with the study of Evidence No. 110, folder labeled “Banco Cuscatlán [Nombre01 058] Documents Record 370849 Folios 216 (8 folios)”, in this folder there are two notes signed by [Nombre02 221], dated September 20, 2004. One is addressed to the Grupo Financiero Cuscatlán Costa Rica S.Nombre46. and another to the Cuscatlan Internacional Bank & Trust Co. Ltd., in the Bahamas. In both, this person authorizes “…irrevocably and unlimitedly, for the effect that they supply any type of information and/or documentation that any of the authorities that supervise the National Banking System or judicial authorities of the Republic of Costa Rica have requested or may request in the future, in relation to any of the operations, both active and passive, that [Nombre02 058] has maintained…”. In the note addressed to the Grupo Financiero Cuscatlán de Costa Rica S.A., Mrs. [Nombre02 221] adds the following: “…that [Nombre 058]., has maintained … with the subsidiary companies of the Grupo Financiero Cuscatlán de Costa Rica S.A., including the Cuscatlan Internacional Bank & Trust Co Ltd., domiciled in the Bahamas.”. Similarly, in the note that was sent to the Cuscatlan Internacional Bank & Trust Co Ltd., she added: “…that [Nombre02 058]., has maintained … with the Cuscatlan Internacional Bank & Trust Co Ltd., domiciled in the Bahamas, a company that is part of the Grupo Financiero Cuscatlán de Costa Rica, S.A.” (see folios 3 and 4 front). The same can be said regarding [Nombre01 028], since in the same folder, at f. 5 and 6 front, two authorizations signed by him can be seen in the same stated terms and that were equally sent on September 20, 2004.

Now, on folio 7 recto, another note signed by [Name01 028], dated September 21, addressed to Cuscatlan Internacional Bank & Trust Co Ltd., can be seen, in which he authorizes, “…in an irrevocable and unlimited manner, so that they may provide any type of information and/or documentation that have been requested or may be requested in the future by any of the authorities that supervise the National Banking System or judicial authorities of the Republic of The Bahamas, in relation to any of the operations, both active and passive, that [Name01 058] has maintained… with Cuscatlan Internacional Bank & Trust Co Ltd., domiciled (sic) in the Bahamas, a company that is part of Grupo Financiero Cuscatlán de Costa Rica, S.A.” (F. 7 recto). In addition to these authorizations, we have that at the request of the Public Prosecutor's Office, the lifting of bank secrecy was ordered at 4:40 p.m. on September 21, 2004, for several legal entities, among which [Name01 058] appears. Banco Cuscatlán and Cuscatlán Puesto de Bolsa were ordered to provide information on the movements of the corporation [Name01 058]. (thus, f. 3,863, volume IX). Subsequently, at 8:12 a.m. on September 29, 2004, the Criminal Court of the Second Judicial Circuit of San José ordered the lifting of the secrecy of bank and stock market information related to each and every one of the financial entities that make up Grupo Financiero Cuscatlán (cf. f. 3,839 recto). The appellants say that [Name01 229], then secretary of the board of directors of Grupo Financiero Cuscatlán de Costa Rica S.A., sent the information from Cuscatlan International Bank & Trust Co. Limited despite the fact that the judicial order issued days earlier did not lift bank secrecy for that particular bank, or for the entire Grupo Financiero Cuscatlán, and, therefore, the lower court erred in concluding that such action was covered by the cited order. Likewise, according to the challengers, it cannot be argued that the information was obtained under an authorization from the account holders, since they only authorized providing the information to the judicial authorities, and the Public Prosecutor's Office is not one of them. These are claims that, for this Chamber, are not acceptable, for several reasons. First, because even if it is admitted that Mr. [Name01 229] sent, on September 28, 2004, information on the transfers of funds abroad made by [Name02 058] through the international department of Banco Cuscatlán de Costa Rica S.A., Name02 as well as the international transfers received in the current account of [Name01 058] through Cuscatlan International Bank & Trust Co. Limited, given that the judicial order issued days earlier only covered Banco Cuscatlán and Cuscatlán Puesto de Bolsa, it is undeniable that the referenced data would have been inevitably discovered as a result of the investigations being carried out up to that point. Note that by that date, there was a judicial order requiring from Banco Cuscatlán all the existing information regarding the movements made by the company [Name01 058] through it. Furthermore, there were several authorizations signed days earlier by the accused [Name01 028] himself and by his wife, [Name 221], addressed to Grupo Financiero Cuscatlán Costa Rica S.A. and to Cuscatlan International Bank & Trust Co. Ltd., so that all the information and documentation on the transactions in which said corporation was involved would be provided to the judicial authorities. In this manner, the requesting body was already fully aware that the transactions made by [Name01 058] were occurring under the auspices of that financial conglomerate and that Cuscatlan International Bank & Trust Co. Ltd. was part of it. That is, even if it is hypothetically admitted (and the hypothetical nature of the situation is emphasized) that [Name01 229], at first, sent information not covered by the lifting of bank secrecy ordered on September 21, 2004, the defect would not lead to the exclusion of the mentioned evidence, because by reason of the same authorizations issued by the holders and the very progress of the investigations—which by then, in addition to pointing to the company [Name02 058] as involved in potentially criminal acts, noted that said corporation had operations with Banco Cuscatlán—it is unquestionable that the data managed by Grupo Financiero Cuscatlán Costa Rica S.A., to which that bank belongs, as well as by Cuscatlan International Bank & Trust Co. Ltd., would be discovered. Moreover, all the bank transactions carried out by order of [Name01 028] took place in Costa Rica, and therefore, by requesting information from Banco Cuscatlán on the transactions that the corporation [Name01 058] made through it (an aspect expressly covered by the first order issued by the corresponding jurisdictional authority), the operations carried out by that corporation under the direct correspondent agreement that Cuscatlan International Bank and Trust Co. Ltd. maintained with Banco Cuscatlán de Costa Rica S.A. were also covered. Thirdly, this Chamber considers reasonable what was indicated by the trial court, namely, that the documentation provided by [Name01 229] on September 28, in response to the order for the lifting of bank secrecy issued on September 21, 2004, by Judge Damaris Vargas Bonilla (an order that was notified that same day at the central offices of Banco Cuscatlán, cf. folio 3,869 of volume IX), was in the country, at the disposal of this company, since the operations were carried out in national territory and, as has been noted, the financial group was then headquartered in Costa Rica, and therefore, it could not be affirmed, or not without speculating, that it was obtained from other banking entities in an irregular manner. Finally, this Tribunal also does not consider that the authorizations issued by [Name01 028] and [Name01 221] were misinterpreted. Note that these endorse the judicial authorities of the country becoming aware of all information related to the transactions made by [Name02 058] that is in the possession of Grupo Financiero Cuscatlán de Costa Rica S.A., Name02 as well as of Cuscatlan International Bank and Trust Co. Ltd., which is precisely what happened here. The information provided on September 28, 2004, questioned by the challengers on the understanding that the bank secrecy lifting order did not cover the financial group and, within it, Cuscatlan International Bank and Trust Co. Ltd., was sent by [Name01 229] in response to the judicial order issued by Judge Vargas Bonilla. So much so that in the document on folio 5 recto of volume I, both the Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios and the Criminal Court of the Second Judicial Circuit of San José appear as recipients. That is, even though the authorization of the holders of the fundamental right would have been sufficient to gather the information without a judicial order, in this particular case the cited order was issued, and because the information was sent as a consequence thereof, it was also a jurisdictional authority that became aware of its content, thus complying with the terms of the same authorization given by [Name01 028] and [Name01 221]. For the foregoing reasons, this ground is declared without merit.

XXV.- Appeal (recurso de casación) filed by licensed attorney José Miguel Villalobos Umaña, private defense counsel for [Name01 018], and appeal of the judgment (recurso de apelación de sentencia) (as converted) filed by the accused [Name01 018] personally, authenticated by licensed attorney Hugo Santamaría Lamicq. In the brief visible on folios 17,241 to 17,263 recto of volume XXXVI, licensed attorney José Miguel Villalobos Umaña, defense counsel for [Name01 018], filed an appeal (recurso de casación) against judgment No. 167-2011, mentioned so many times. Subsequently, through a brief visible on folios 172,745 to 172,767 recto of volume XXXIX, the accused [Name01 018], personally, proceeded to convert the filed appeal (recurso de casación) into an appeal of the judgment (recurso de apelación de sentencia), maintaining its content. For the foregoing, they are resolved jointly, but not before warning that the textual quotations to be made below correspond to the latter. First ground. Erroneous application of the statute of limitations rules enshrined in Articles 31, 32, 33, 361, subsection a) and 369 of the Código Procesal Penal. The trial court concluded by majority vote that the criminal action against [Name01 018] was not time-barred. To the contrary, Judge Camacho Morales admitted the exception. For the appellant, the substantive issue has to do with 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 No. 212 of that day. According to the trial court itself, had it not been for that rule, the case would already be time-barred, and therefore the appeal is aimed at questioning this interpretation, which incorrectly applies the statute of limitations rules of the procedural law (ley de rito) and of the LCC itself, Name02 as well as some rulings of the Constitutional Chamber that are binding. The judgment affirms that since the statute of limitations period was not reduced by half as established in Article 33, first paragraph of the Código Procesal Penal, due to the application of the provisions of numeral 62 of the LCC, the criminal action would prescribe on November 30, 2007, and not on May 30, 2006. Therefore, it is considered vital to establish whether the aforementioned Article 62 is applicable in this matter, since if it is not, the criminal action would be time-barred. The trial court says it does not share the defense's thesis, that this is a reduction of time limits to control the duration of the process and not an issue of the statute of limitations. This is important, because if it is the former, the acquired rights of the accused must be respected. Controlling the duration of the process is an issue of fundamental rights, derived from Article 41 of the Political Constitution, insofar as it provides for swift justice. However, increasing the time limits for the duration of the process to the detriment of the accused is synonymous with applying the law retroactively to the detriment of the acquired rights of the defendants. The defense's position rests on what was set forth in ruling (voto) No. 4397-99 of the Constitutional Chamber, issued at 4:06 p.m. on June 8, 1999, which in its Considering VI affirms that “THOSE TERMS are not properly those of a 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…" (F. 172,747 recto). The same was indicated in resolution No. 428-00. That is, if they are rules relative to controlling the duration of the process, they cannot be applied to the detriment of the accused, since they affect their acquired rights. But independently of the foregoing, should one disagree with this thesis and decide that we are dealing with statute of limitations rules and that, therefore, they can be applied retroactively, the Constitutional Chamber has said that there must be an express rule authorizing that retroactive application. Therefore, the point to consider is whether that provision was made in Article 62 of the LCC. To define the foregoing, the first thing to consider is ruling (voto) No. 4397-99 of the Constitutional Chamber, which, in what is of interest, indicates: “… THE RULES CANNOT GOVERN PAST ACTS… EVENTUALLY, A PAST BEHAVIOR MAY BE ASSESSED WITH A RULE SANCTIONED LATER, A JUDGMENT THAT IS SUBJECT TO A REGULATED POWER… IT ONLY PROCEEDS BY EXPRESS MANDATE OF THE LAW… IN CRIMINAL PROCEDURAL MATTERS, IT IS NOT PROHIBITED THAT THE LAW BE APPLIED RETROACTIVELY, AS IT ITSELF ESTABLISHES, ONLY WITH RESPECT TO PENDING CASES…” (F. 172,747 recto). The Chamber alludes to all types of rules and not only to substantive ones, since the considering section where the issue is addressed is called “On the Application of Procedural Law.” That is, if there is no express provision that allows applying rules not in force at the time of the facts being adjudicated, such application would not be possible. Now, the trial court accepts that the application of Article 62 to facts that occurred before its entry into force depends on a legislative authorization, an authorization that the lower court (a quo) believes exists. In this regard, it is explained in the appeal: “… Let us analyze then the interpretation of the Tribunal in its majority vote. On Folio 796 the Judges affirm that Article 62, although actually due to an excusable error they believe it is 60, does contain the budget that this Defense misses. They affirm that the legislator made generic reference to all the proceedings in which crimes against the duties of public office are charged and points out that this was done WITHOUT DISTINGUISHING BETWEEN CRIMES IN PENDING CASES OR THOSE OF FUTURE INITIATION. That is precisely the Judges' error. There is no express provision, as the Chamber requires, so they resort to the expedient of considering that there is no express exclusion, when the reasoning is the contrary: If there is no express provision, the rules of Article 62 cannot be applied to pending cases but exclusively to those of future initiation after October 29, the date on which Law 8422 was published. It is not a matter of indicating that since application to previously initiated cases is not excluded, that is possible: the constitutional rule established by the Chamber is the inverse; without an express provision, that interpretation is not possible. The Judges admit that there is no express provision, but rather a non-express exclusion, which is not the same, but rather the opposite, which demonstrates the argumentative error of the majority. It is false that the legislator specified that this non-reducing provision of the statute of limitations period by half would apply to pending cases; what the legislator did was casually not indicate it, which, instead of presuming its provision, demonstrates its non-provision, and in the face of it, one can only deduce that Article 62 of the LCC only governs future cases as of October 29 and not those initiated prior to that entry into force, as is this one. It is not a matter of arguing that the legislator did not distinguish between pending and future cases; rather, it must be concluded that had it wanted that numeral 62 and its provisions to be applied to pending cases, like the one that concerns us, it Name02 should have indicated it, according to the binding provisions of the Constitutional Chamber already indicated. If one reads numeral 62 objectively, one observes that even its wording is of a future nature, as corresponds: THE CRIMINAL ACTION WITH RESPECT TO THE CRIMES… SHALL PRESCRIBE… THE FOLLOWING RULES SHALL GOVERN… Thus, it only indicates that they apply to future cases and not to pending cases, and in not doing so, it is not possible to amend the legislator even if the Judges desire it for motivations that this defense does not know, but intuits. Observe that there is no transitional provision to Article 62 nor at the end of the norm nor in the Transitional Provisions of the Law itself, which has two, not counting the one the Judges shamelessly invent. If we compare what the legislator did when it approved the Código Procesal Penal, when it expressly indicated which new provisions applied to ongoing proceedings, we will be able to understand the binding constitutional interpretation of the Chamber that these Judges intend to omit and disobey …” (F. 172,748 to 172,749 recto, the transcription is literal). In the particular case, [Name01 018] gave his statement (declaró) after October 29. However, since the case began before that date, the aforementioned Article 62 was not applicable to him, except for an express legislative rule, which does not exist. The alleged statute of limitations elapsed as of May 30, 2006, before the declaration of complex procedure for this case became final, which occurred in July of that year, or the call to the preliminary hearing, both acts subsequent to the time at which the statute of limitations took place and which therefore cannot have interrupting effects to the detriment of the accused [Name01 018].

XXVI.- The ground is declared without merit. Just as we explained from the first considerations of this resolution, the issue of the statute of limitations was expressly settled by the Sala Tercera, concluding that the criminal action has not prescribed in the particular case of [Name01 018] and that the ordered remand must proceed from that basis. It is a decision that, in any case, this Chamber shares, understanding that at the time [Name01 018] was questioned (that is, on November 30, 2004), Article 62 of Law No. 8422, Law Against Corruption and Illicit Enrichment in Public Office, published in La Gaceta No. 212 of October 29, 2004, was already in force, according to which, with the interrupting act, the computation of the statute of limitations period began again completely, without any reduction. The appellant says that the aforementioned law cannot be applied to cases that, like the present one, were already underway as of October 29, 2004. It is a position that is not acceptable, since as these are rules of a procedural or instrumental nature (and the Constitutional Chamber has said that the statute of limitations rules have that character), they govern immediately and for the future, and therefore, it will be sufficient that the procedural act provided for in those rules is carried out during its validity for its effects to apply, regardless of whether the procedure within which that act takes place was already underway. It is important to note that what is proscribed by Art. 34 of the Political Constitution is that the rules take effect retroactively to the detriment of any person, and not that they do so as of their entry into force and for the future, as is the case here. In summary, if procedural acts, at least as a thesis of principle, are governed by the regulations in force at the time of their execution, the questioning statements (declaraciones indagatorias) made after October 29, 2004, among them that of the accused [Name01 018], are subject to the provisions of the aforementioned Article 62. In line with the foregoing, this Chamber concluded in Considering VI.-, to which the appellant must refer, that in the case of the accused who gave their questioning statement (declaración indagatoria) before this date ([Name01 033], [Name01 001] and [Name01 022]) the reducing effect of the statute of limitations period that Art. 33 subsection a) C.P.P. associates with that procedural act cannot be suppressed by invoking the cited numeral 62, since it was not in force at that time and it is not appropriate to apply it retroactively, pretending that its effects are associated with procedural acts carried out under and with the consequences provided for in a different regulation. Therefore, this ground is declared without merit.

XXVII.- Given the existing relationship, this Chamber will jointly resolve the second and third grounds of the challenges. Second ground. Erroneous application of the rules regarding the lifting of bank secrecy without a judicial order for the respective case, infringing Articles 24 of the Political Constitution; 615 of the Commercial Code; 1, 2 and 3 of Law No. 7425, of August 9, 1994, Law on seizure, registration and examination of private documents and intervention of communications. The defense objected to the bank evidence from Banco San José, in the Bahamas, required in the Caja-Nombre01 case and provided as evidentiary material in this matter (items of evidence 543, 544 and 545), understanding that it had been requested exclusively for the case called Caja-Nombre01 and not for this proceeding and, furthermore, that there was an “alteration of translations” of documents by the Public Prosecutor's Office. This evidence sought to verify the receipt of deposit certificates by [Name01 018] with funds coming from [Name01 091] and [Name 058], which were deposited in BAC Bahamas Bank Limited in that country. The trial court affirmed that the evidence came from Banco de San José in the Bahamas. That is false. It is not 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 vote maliciously tries to suggest. It is enough to read the evidence to see that they are two different banks and not a simple branch. The foregoing is also confirmed by considering that the Fiscalía required a judge's order to send the letter rogatory (carta rogatoria) to the Bahamas, to request the bank evidence. If it had been Banco de San José itself, it would have been enough to request the information from BAC San José in Costa Rica. Although the evidence comes from the Caja-Fischel case, the judges consider (see f. 873 to 875) that an express judicial order to use it in this proceeding was not necessary. According to the ruling, a judicial order in any criminal case suffices for it to be used in another, a position the lower court had adopted, with protest from the defense, since May 14, 2010. The challenger explains, referring to the questioned ruling: “… The Judges write thus: Hence, the sources of evidence identified based on the enunciated proceedings may be used in the criminal proceedings in which they are required, because the described rule does not restrict their use to a specific investigation as it does not indicate that they can be used for the clarification of a singular criminal matter but rather for several criminal matters in the plural...” (Folio 874).” (F. 172,750 recto). This argument, it is stated in the appeal, is questionable: “Thus, they interpret that even though that evidence from The Bahamas was obtained by means of a judicial order issued within the CCSS-Fischel case, as both are criminal matters, it could be, and in fact was, used in the [Name64 091] case, because both are criminal cases. This thesis does not withstand the slightest analysis. First, because it is only a suspiciously grammatical argument and one that absolutely omits legal criteria. Let us see. They simply say that since the law indicates that the seizure, registration, or examination of private documents can be ordered to clarify MATTERS submitted to the cognizance of criminal judges, that documentation can be used for any case of that criminal nature. The Judges omit to indicate that that rule has a constitutional context in Article 24 and that the pluralization of the noun MATTERS is not in the sense that it can be used in any of them, but because the constitutional text refers to THE COURTS OF JUSTICE, thus, in the plural, being able to order the seizure, registration and examination of private documents, when it is absolutely indispensable to clarify matters submitted to THEIR COGNIZANCE. It concerns matters in the plural because it refers to the Courts in the plural, not as the Judges wish to read it in the sense that a specific Court can order the seizure of documents for any cause, the specific one it knows and other future or past ones, without limit in time, jurisdiction or matter, as long as it has a criminal nature, in accordance with Article 2 of Law 7425. What the Constituent and the legislator mean and say is that each criminal judge can order the seizure, registration and examination of private documents to investigate the matters they know of, not just any matter, even if it is not the specific one at hand. And this is Name02 because the Constitution also requires that this order can only be issued when IT IS ABSOLUTELY INDISPENSABLE, that is, a case-by-case, request-by-request, and cause-by-cause analysis is required, since if it is interpreted that the lifting of privacy is for any cause, that analysis of exception (ABSOLUTELY INDISPENSABLE) would not be made for other causes that it does not even know of. The Judges' thesis would lead to the deconstitutionalization of the guarantee of Article 24, since the required analysis would not be made for other causes, the privacy of documents disappears with the first order, without judicial control being necessary in the future for the accused …” (F. 172,750 and 172,751 recto). The trial court's criterion would lead to requiring only one judicial order to lift bank secrecy in a specific case, and as of that moment, that secrecy would disappear for any other case. The possibility opens of using the obtained information in the future, in any proceeding, whether prior or subsequent, even in relation to events that have not occurred and without jurisdictional control in those cases. Furthermore, if the trial court's limited grammatical thesis is followed, the truth is that Law No. 7425 itself, in its Article 2, uses different wording, saying that the Judge may order “THE SEIZURE, REGISTRATION OR EXAMINATION OF ANY PRIVATE DOCUMENT, Name11 THAT MAY SERVE AS INDISPENSABLE EVIDENCE OF THE COMMISSION OF ANY CRIMINAL CONDUCT,” in the singular, not in the plural, and even less so for any cause that might not even have arisen...” (F. 172,751 recto). For the appellant, the precedents of the Sala Tercera only endorse the use of evidence that has emerged as a result of the lifting of bank secrecy in the specific case. Although the use of evidence in cases other than the one in which it was obtained has been permitted, this has not been so Name02 with banking information, and this is because the protection of the individual against the administration is greater when it comes to private documents, which receive constitutional protection. The criterion expressed by the trial court is considered even more serious, in the sense that based on Article 276 of the Código Procesal Penal, evidence obtained in other criminal cases could be incorporated as simple documents, even when that evidence is the product of the lifting of bank secrecy. Numeral 334 of that same body of rules would only authorize the incorporation by reading of evidence obtained in accordance with what the code indicates, and evidently, evidence derived from judicial orders for another cause cannot be brought in through the “back door,” as the judges of the case intend. He qualifies as incredible that the trial court endorses that the Public Prosecutor's Office can investigate the facts, even despite legal and constitutional restrictions. He adds that the judge of the case known as Nombre82 himself limited the use of the obtained documents to the specific case in which the order was issued, which was ordered, included, because Name02 was requested by the prosecutors, hence it is not possible that the evidence can be used in this proceeding. The most serious thing is that the trial court accepts that the Public Prosecutor's Office eliminated that restriction from the translation and justifies that action as a simple error, stating: “On Folio 875 the Judges express that this responsibility would be the translator's and not the Fiscalía's, when in this specific case the translation was done by the Fiscalía, therefore, the responsibility is attributable. Furthermore, it is not that the suppression is alleged, as the Judges falsely affirm on the same Folio, since the Judge's paragraph limiting the use of the information to the Nombre82 case was in fact suppressed and this was known to the Fiscalía, since Name02 it requested it ...” (F. 172,752 recto). He concludes by pointing out that if this tribunal considers that the documentation derived from the lifting of bank secrecy in The Bahamas cannot be used in this case, by virtue of being limited to the case in which it was ordered, the evidence that supposedly demonstrated the deposits for the benefit of [Name01 018] should be suppressed, having been obtained in violation of the rules indicated at the beginning of this section. Third ground. Erroneous application of the regulations governing the lifting of bank secrecy in The Bahamas, in accordance with Articles 24 of the Political Constitution, 615 of the Commercial Code, the Ley Orgánica del Banco Central de Costa Rica, the Ley Orgánica del Sistema Bancario Nacional and the referenced Law 7425. In this section, the following is stated: “… In Considering II. H. 3 the Majority Judges refer to this defense's opposition to the incorporation of Report 082-DEF because the documentation from BAC BAHAMAS BANK LIMITED was done based on a letter rogatory (carta rogatoria) not provided to the proceeding and without lifting bank secrecy for that entity in the present case. As recorded on Folios 877 and following of the judgment, the evidence item 413 found on Folio 6673 of Volume XV of the case file was admitted without the letter rogatory that authorized it for this case being included. The foregoing was a matter of grievance in the previous Ground, but it is now expanded upon in another ground because the Majority Tribunal considers that additionally, the documentation proving some alleged investment certificates in Name01 of [Name01 018] at the Bank domiciled in The Bahamas was provided based on a correspondent agreement between BAC San José and Bahamas Bank Limited. It is curious that after exhaustively defending the validity of using the documentation derived from the Nombre82 case to obtain this evidence in The Bahamas in a somewhat unsubstantial manner, it now simply leans towards indicating that that information was not provided on that basis, but rather due to the alleged contract between both banking entities. Now it turns out, according to the Majority Tribunal, that BAC San José is offshore of BAC Bahamas, without this being demonstrated in the file. Which of the two is the head of the group?

Where is that blessed and phantasmagorical contract between those entities, which not only fails to appear, but which no one references, attaches, or even indicates where it is? Yet the Judges accept it without more, without seeing it, smelling it, or feeling it; it is like an act of faith, fit for a better cause. It exists because the Bank's employees say it exists, and that makes it real and valid. UNBELIEVABLE. It is not in the case file, it was never submitted, yet it exists because the Judges say it exists. But worse still, if it does not exist, in any case the order to lift bank secrecy directed to BAC San José in Costa Rica was sufficient, according to the Judges, as they state at Folio 8979. Let us examine this carefully. The Judges indicate that evidence item 410 confirms that on June 1, 2004, the bank secrecy of [Name01 018] was lifted within the national banking system, including BAC San José. That is correct, but until now we learn that BAC Bahamas Bank Limited was part of the national banking system... It is evident that this order was directed to banks in Costa Rica, not to those in the Bahamas, due to the principle of territoriality that governs this matter. Article 1 of the Organic Law of the National Banking System, number 1644 of September 26, 1953, and its reforms, defines the national banking system and incorporates therein the private commercial banks established and administered in accordance with Title VI of this law. Nothing is mentioned in that title about offshore banks, for they are regulated in another law, the Organic Law of the Central Bank, which is Law 7558 of November 3, 1995. It is clear (Nombre02) that when the Judge ordered the lifting of the bank secrecy of [Name01 018] in the banks of the national banking system, he did so within the legal definition of that concept and not whatever the majority judges might fancy. When at Folio 879 the Judges attempt to justify, by arguing that the Regulation for the Constitution, Transfer, and Registration of Financial Groups allows for the signing of correspondent contracts (contratos de corresponsalía), that is a truism (verdad de Nombre83). But what they do not demonstrate is the most important thing: that such a contract was actually signed, beyond the good wishes of the Judges. That such contracts are legal does not make them appear in reality nor materialize them. Furthermore, according to the Judges, since [Name01 018] sent the transfer from here, this is proof that the transaction took place in Costa Rica and that it is therefore not really an international transaction that would require a letter rogatory to obtain the information. UNBELIEVABLE. The fact that the funds were sent from here does not refer to the type of document acquired abroad, and therefore the sending of those securities requires that bank secrecy be lifted in that country. If, for example, money is sent from the Banco Nacional to Banco Santander in Venezuela, it does not mean that the latter entity is a branch or agency of the former; it is simply a banking transaction between two independent entities, and what Banco Santander does with the money sent is protected by bank secrecy. Note that BAC San José in Costa Rica is not the one directly sending the information, but rather it does so because the Bank of the Bahamas sends it to them, which shows that it was obtained illicitly and without respect for the existing constitutional procedure for this. Perhaps the clearest point, if it could be put this way, is to ask what the reason would be for the Prosecutor's Office to request the lifting of bank secrecy via a letter rogatory in the Bahamas if, according to the Judges, it was sufficient to ask the local Bank for the information…” But the height of the Judges' thesis is their particular interpretation of bank secrecy. The last paragraph of point 2.H.3 refers at Folio 880 that the lifting of bank secrecy need not necessarily be carried out at the Bank where the account is held, but rather that any entity can provide information it possesses about that person, even if the account is not at that Bank. If article 615 of the Commercial Code is read carefully, it is understood that the order for lifting bank secrecy is directed to the entity with which the investigated person has operations, accounts, deposits, investments, or credits, so that the person responsible for such operations sends the information. It is not about shooting wildly into the air, to wait patiently for any entity to tell gossip or unofficial reports about a certain person, since this would lead to prostituting the Judge's order, which must meet requirements including those of constitutional rank. Banks send information derived from operations with them, specifically with the Bank that receives the order, and it cannot be understood to include the sending of any knowledge whatsoever one might have about the investigated person…” (F. 172,752 to 172,754 front). Given that the information was obtained without an order from a competent judge, without any correspondent contract between the banks being in evidence, and without the lifting of bank secrecy in this case, said information becomes illicit and must be excluded as an evidentiary element in the present case.

XXVIII.- The arguments are not admissible. In considerando VIII.- of the resolution of the Third Chamber (Sala Tercera), it ruled on the issues raised here, stating: "VIII. Section III of the challenge brought by the Public Prosecutor's Office. Grounds for the Cassation Appeal related to the declaration of the illegality of the so-called 'Evidence Item No. 543, 544, and 545'. The disregard of procedural rules 142, second paragraph, and 184 in relation to article 408 subsection b), all of the Criminal Procedure Code, constitutes the first ground of the third section of the appeal filed, since in the opinion of the prosecuting body, the contested ruling presents at least seven flaws in its intellectual reasoning, related to the confirmation of the illegality of evidence items 543, 544, and 545, namely: 1.- Supposedly, it does not contain the citation of the norms of the Constitution, of Law 7425, or of the Criminal Procedure Code that expressly prohibit the use of legitimate documentary evidence within another criminal case. 2.- It argues that, although judgment 2012-2550 generically alludes to the right to informational self-determination of Article 24 of the Constitution and to the constitutional jurisprudence that develops it, it does not indicate the part of that norm or the specific precedents of the constitutional body that expressly prohibit using in one case documentary evidence legitimately obtained in another proceeding, which prevents the prosecuting body from verifying its existence and the correspondence between its ratio decidendi and the appealed vote (Cf. f.175095 of volume XLII of the file). 3.- The ruling omits ruling on the factual and legal aspects that the Public Prosecutor's Office alleged in the oral appeal hearing, referring to the third ground of the appeal of Licenciado José Miguel Villalobos, on behalf of [Name01 018], and to the seventh ground of the appeal filed by co-defendants [Name01 018], [Name01 028], [Name 041], and [Name01 001], specifically regarding that: a) [Name01 028] used products and services contracted in Costa Rica, both from the current account of [Name 058] at Banco Cuscatlán in Costa Rica and from SAFI and Cuscatlán Valores, which also belong to the same Grupo Cuscatlán. b) According to the proven facts of the convicting judgment 167-2011, both the defendant [Name01 028] and [Name01 018] used the services of Costa Rican private banking to arrange and receive money transfers and securities from [Name02 091], the former through account executive [Name 232] of Banco Cuscatlán and the latter, through BAC San José and its branches, so that, these are private banks and subsidiaries that operate in Costa Rica and that form part of the National Banking System, according to Article 1 of the Organic Law of the National Banking System. Furthermore, although the information requested from these banks requires a court order, in this particular case, a sui generis situation occurred, since apart from the fact that the acts were committed on Costa Rican territory, the Costa Rican Authorities did not order either Grupo Cuscatlán or BAC, in Costa Rica, to send documents from Cuscatlán International Bank & Trust Limited or Bahamas Bank Limited in that country, but rather it was both Financial Groups that voluntarily delivered the information generated by them, due to the commercial relationship with [Name01 058] and the co-defendant [Name02 018]. They argue that unlike vote 2012-2550, the Trial Court, in convicting judgment 167-2011, did make a substantial ruling on the matter, according to section “H. Objections by the technical defense of [Name01 018]” (Cf. f. 867 of the first instance judgment). 3. Opposition to the incorporation of Report No. 082-DEF because the documentation from the Bank of the Bahamas, on which it is based, was obtained based on a letter rogatory that was not submitted in this proceeding” (Cf. f.175097 of volume XLII of the file). They reiterate that, based on the alleged lack of ruling, the appealed Court reached an underived conclusion, with which it held that the Authorities of the Financial Groups mentioned above required an order directed to the Authorities of the Bahamas so that both Grupo Cuscatlán and BAC would send the Costa Rican Authorities the information that they themselves generated in Costa Rica, due to the commercial relationship they had with both co-defendants. 4) Again, the complainants argue that judgment 2012-2550 omits ruling on the factual and legal aspects alleged by the Public Prosecutor's Office in the oral appeal hearing conducted, only now with reference: a) That the international transfers made by co-defendants [Name01 028] and [Name01 018], through bank accounts in Costa Rica, were not deposited in accounts in the Bahamas, but rather generated and stored here in Costa Rica at their request. b) That both the banking information of Grupo Cuscatlán and BAC form part of the bank secrecy that these entities were required to observe. However, once said secrecy was lifted, by means of a court order issued by a competent Judge, they were also obligated to deliver that information, as effectively occurred. c) The information obtained by order of a Costa Rican Judge was not in the possession of Banks in the Bahamas but rather of the financial group Cuscatlán (Banco Cuscatlán, SAFI, Cuscatlán Valores) and BAC, domiciled in Costa Rica, so that the issuance of an order to lift bank secrecy to Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary. Coupled with the fact that, in the case of the certificates that involved the defendant [Name01 018], these were materially located at BAC San José here in Costa Rica, because the transactions carried out were made from our country, under the figure of the correspondent contract with the Bank of the Bahamas (Cf. f.175099-175100 of volume XLII of the file). By virtue of the foregoing, despite this, they argue that: “… the Sentence Appeals Court omitted to rule on these factual and legal aspects specifically alleged by the Prosecutor's Office and extensively developed by the trial court, and without knowing from what reason, argument, or evidence, it started from the alternative factual hypothesis that the transfers made to the banks of the Bahamas from Costa Rica were documented in information that could only be under the exclusive custody of the offshore banks, as if the transfer operations had been made entirely outside the national territory and solely in the offshore bank. With this, the Sentence Appeals Court managed to obtain an underived conclusion, which is that the authorities needed an order directed to the authorities of the Bahamas so that Grupo Cuscatlán and Grupo BAC would give the Costa Rican authorities information that they themselves had generated and was in their own possession here in Costa Rica, and which had also been generated on the occasion of the commercial relationship of Grupo Cuscatlán and Grupo BAC with [Name01 058] and the defendant [Name01 018] in accordance with national law and the services contract that both parties signed in our country…” (Cf. f.175101 of volume XLII of the file, the highlighting belongs to the original). 5) According to the Public Prosecutor's Office, unlike judgment 167-2011, the appellate resolution does not justify why the correspondent relationship between BAC San José and Bahamas Bank Limited was not demonstrated, nor does it explain the reason why evidence item 413 did not deserve credibility, referring to the official communication of January 31, 2006, signed by the Head of Operational Risk Management of BAC San José (Cf. f.6673 of volume XV of the file), in which the existence of a correspondent contract is revealed in which BAC San José operates as the agent bank for BAC Bahamas Limited. Nor does it state why it was possible for co-defendants [Name01 028] and [Name01 018] to make transactions before the banks of the Bahamas without needing to travel to that Island, if that correspondent contract did not exist. Insisting, rather, that the Second Instance Judges less express why the note on folio 80 of volume I of the file, dated September 27, 2004, did not deserve credibility, in which representatives of Banco Cuscatlán inform the Public Prosecutor's Office of the preparation of various documents to be sent to them, among them, point e), “… operations under the direct correspondent contract that Cuscatlán Bank and Trust Co Ltd in Nassau maintains with Banco Cuscatlán de Costa Rica…” (Cf. f.175102 of volume XLII of the file. The supplied text belongs to the original). 6) They underline that in no way does the appellate Court substantiate how, in the case of co-defendants [Name01 028] and [Name01 018], the information from the Bahamas can legally be excluded from current account services performed in Costa Rica, nor do they mention the specific legal norm with which the information that these Costa Rican banks handle about the movements of a particular account, generated by the activities of its account holder in accounts in other countries as a product of money transfers that through that same current account in Costa Rica the client sent or received money from abroad, can be excluded. 7) They add that the second instance Court did not examine the implications of the hypothetical exclusion of evidence items 543, 544, and 545 in the particular case, nor the thesis of the majority vote of convicting judgment 167-2011, of the Criminal Court of the Treasury and Public Function, insofar as there are other documentary elements provided by BAC San José that allow determining the criminal responsibility of [Name01 018], such as “the joint relationship of Annex No. 19 of report 082 DEF, relating to the movements of the bank account of [Name01 058], with the evidence expressly authorized by [Name01 028] AND [Name01 221] through the notes dated September 21 and 29, 2004, contained in turn in evidence item No. 110, and likewise through folios 28 to 33 of evidence item No. 132, coming from Banco Cuscatlán…” (Cf. f.175103 of volume XLII of the file, the capitalization belongs to the original). As a grievance, they outline that with the lack of substantiation of the judgment related to the allegations of that body, in relation to evidence items 543, 544, and 545, damage was caused to the defense of the social interests entrusted to that Body, since to date the legal reasons considered by the Ad quem for rejecting the arguments presented are ignored, for which they request, as a claim, that the contested ruling be annulled, that the proceedings be returned to the competent Appeals Court, so that, with a new composition, it issues a new ruling that analyzes the points questioned in this ground. In accordance with Article 468 subsection b) of the Criminal Procedure Code, at the same time, the Public Prosecutor's Office, in the second ground of the third section, claims erroneous application of substantive norms 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica and disregard of Article 615 of the Commercial Code, because the appealed ruling considered that the information provided by the Banks BAC San José and Grupo Cuscatlán in Costa Rica, in relation to the transfers made to financial entities domiciled in the Bahamas, exceeded the issued order to lift bank secrecy. According to the applicants, the conclusion reached by judgment 2012-2550, when it points out that: "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, so the procedure to obtain banking information from said institution must be done through official channels and, of course, with a court order to lift bank secrecy…" (Cf. f.175105 of volume XLII of the file, the highlighting is supplied), is incorrect, precisely because Articles 141, 145, and 147 mentioned above and cited literally in the Public Prosecutor's Office Appeal regulate the assumption that occurred in the case, that is, “Offshore Banking”, insisting that it is not true that, to obtain banking information from Bahamas Bank Limited, it was essential to carry out the corresponding procedures through the General Chancellery of the Republic, since a request made to the National Financial Group alone was sufficient. Also, that Article 615 of the Commercial Code was transgressed, because documents that, due to business relationships between the Bank and the client, were recorded in those current accounts were erroneously excluded from the lifting of the bank secrecy ordered to National Banks. They affirm that the grave error of the appealed vote consisted of misinterpreting the meaning and scope of bank secrecy, as well as arbitrarily limiting the information covered by the lifting of bank secrecy imposed on related Financial Groups, establishing through the doctrine of author Nombre84, in the book “Banking Contracts. Their Meaning in Latin America”, Legis, 5th Edition, p.380, that bank secrecy comprises “… all the information that has been provided to it on the occasion of its relationship with the client …” (Cf. f.172107 of volume XLII of the file), specifically: “…•The private information it has received from its clients about their activities, businesses, plans, etc./ •Results of operations between bank and client, such as amount, destination, credit modalities, etc./ • The papers of its client that, by reason of business relations, have come into the hands of the bank, and which it could not show to third parties without the procedural formalities indicated by law…” (Cf. f.172107 of volume XLII of the file). Likewise, they point out that when applying that doctrine to the specific case, it is clear that the banking information that a financial group has in Costa Rica is not limited solely to that generated by the client's activities in our country, but also to accounts in other countries, as a product of money transfers made from the same account abroad, to repeat that the international transfers referred to in the ruling were made through bank accounts located in Costa Rica, so the information on those transactions to banks in the Bahamas, being generated and stored in Costa Rica, at the request of the co-defendants themselves, formed part of the bank secrecy that the Financial Groups Cuscatlán and BAC San José were required to observe, but they also comprised the information that, once the corresponding bank secrecy was lifted, had to be delivered to the Costa Rican Judicial Authorities, since it was banking information, obtained in our country, by virtue of Bank-client business relations, as indeed occurred. Based on the above approach, they state that an order to lift bank secrecy for Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary, therefore, from that perspective, evidence items 543, 544, and 545 are valid. As a grievance, they state that the non-application of the aforementioned regulations caused illegitimate harm to the punitive claims of the Public Prosecutor's Office, because it prevented them from developing a theory of the case concatenated with remaining evidence, especially with the testimony of collaborating witness [Name01 064]. As a claim, they request that the ground be granted, that the annulment of the ruling be ordered, and that it be remanded for the issuance of a new resolution in accordance with the law. Finally, pursuant to article 468 subsection b) of the Criminal Procedure Code, in the third claim of the third section of the cassation appeal of the Public Prosecutor's Office, erroneous application of Article 24 of the Constitution is claimed, at the time of invalidating evidence items 543, 544, and 545. For the Public Prosecutor's Office, the alleged defect claimed is verifiable when the appellate Court, based on an erroneous conception of said article, equates the use of the same evidence in two different criminal cases to a “second lifting of bank secrecy”, without a court order (Cf. f.175119 of volume XLII of the file). Precisely, the prosecuting body, in its challenge explains two supposed errors incurred by the Appeals Court, when resolving the issue of the previously cited evidence: 1.- The ruling presents confusion when interpreting Article 24 of the Constitution, when it refers to “Courts of Justice” (plural) for “the matters” (plural), since the norm does not specify that information once obtained through a letter rogatory or lifting of bank secrecy can only be used in the proceeding in which it was originally requested, and, on the contrary, establishes the Courts of Justice as the sole competent bodies to obtain that private information, when it presents the phrase "submitted to their knowledge", which means that it is for exclusive use in criminal cases, where the request to the jurisdictional body is indispensable, as it excludes from that obtaining those powers or institutions different from the Courts of Justice (Cf. f.175120 of volume XLII of the file). 2.- For the claimants, the second instance Court disregards the procedural principles of publicity and community that govern evidentiary matters: the bank secrecy in relation to the information disclosed, compiled, systematized, and brought to the knowledge of all parties can only be lifted once, precisely because it has lost its status as secret (Cf. f.175121 of volume XLII of the file). Furthermore, the applicants mention that evidence items 543, 544, and 545 acquired that publicity when they were added, discussed, and incorporated into the debate in the CCSS-Fischel case, as part of the information sent from BAC Bahamas, in which copies of investment certificates referred by the co-defendant [Name01 018] to BAC Bahamas were delivered, which were received by BAC San José, for the purpose of being transferred to BAC Bahamas, together with an amount in dollars debited from that account, according to the correspondent contract, in which BAC San José operated as Agent of BAC Bahamas Bank Limited (Cf. f.175122 of volume XLII of the file). On the same topic, the appellants make a literal transcription of folios 16016 and 16017 of the first instance judgment 167-2011, to support the reasoning given and to affirm that the documentation from BAC Bahamas delivered by Mrs. [Name01 233], as Head of Operational Risk Management of Bac San José, is licit, by virtue of the fact that it was generated and was materially located in Costa Rica. For the prosecuting body, the lifting of bank secrecy of the accounts at BAC San José, in addition to having been obtained in accordance with the legal regulations, was public and common to all parties when it was incorporated into the criminal proceeding CCSS-Fischel, so it is absurd to maintain that in both proceedings the bank secrecy had to be lifted, as that secrecy is single and is lifted only once. Likewise, the petitioners affirm that the judgment is neglectful in indicating the constitutional and legal norms (Law 7425 or Criminal Procedure Code) that expressly prevent the use of evidence legitimately obtained within one proceeding in another, so for the prosecuting representatives, that evidence must be studied from the doctrinal concept of “transferred evidence” (prueba trasladada) (Cf. f.175124-175125 of volume XLII), which is based on the unity of the jurisdiction, not requiring identity of parties, but rather the prior existence of the adversarial process and cognizance of the evidence in the other proceeding, where its full efficacy has been determined, according to the principle of freedom of evidence, embodied in articles 182 and 234 of the Criminal Procedure Code and vote 2001-764, of the Third Chamber, from which they cite an extract (Cf. f.175125-175126 of volume XLII of the file). In this way, for the prosecuting representatives, not only was there an evident connection between causes [Nombre82 and Nombre64 091], but the information obtained from BAC Bahamas Bank Limited in the Bahamas, on the occasion of the connection with the account at BAC San José in Costa Rica, in the CCSS-[Name01] case, was brought to the attention of all the co-defendants, including [Name01 018], who had the opportunity, together with his technical defense, to refute it, its incorporation being deemed valid in that other proceeding. Therefore, they put forward as a grievance, an illegitimate harm to the punitive claims of the Public Prosecutor's Office, a body that failed to prove its theory of the case, due to the exclusion of the mentioned evidentiary elements, the prosecuting appeal requesting both the annulment of the appealed ruling regarding the declaration of illegality of evidence items 543, 544, and 545 and the issuance of a new ruling that resolves the extreme raised. For reasons of procedural economy and because they refer to interrelated extremes, the first, second, and third grounds of the Third Section of the prosecuting appeal are resolved jointly, and are declared with merit: By the nature of the claims, the following considerations must be made: i) With regard to evidence items 543, 544, and 545 in particular: Just as the Criminal Court of the Public Treasury, of the Second Judicial Circuit of San José, did in its time in judgment 167-2011, before deciding on the lawfulness or unlawfulness of the aforementioned evidence items 543, 544, and 545, it is necessary to dimension what refers to that material. According to the accusatory document, which is on folios 8020 to 8364 of volume XIX of the file, evidentiary elements 543, 544, and 545 were described by the Public Prosecutor's Office in its petition of “FORMAL ACCUSATION AND REQUEST FOR OPENING OF TRIAL” (Cf. f.8020-8364 of volume XIX of the file. The supplied text belongs to the original), within the section called “Judicial Letters Rogatory”, as: “…543) Certified Copy of the request to the Criminal Court by the prosecuting body for the issuance of a Letter Rogatory addressed to the Republic of the Bahamas, dated October 5, 2004 (...) 544) Certified copy of the Letter Rogatory formulated by the Criminal Court of Costa Rica to the authorities of the Bahamas (…) 545) Certified copy of the Response to the letter rogatory to the Bahamas by the Consul Nasaú(sic), Bahamas and copy of the translation into the English language of the Letter Rogatory issued by the Criminal Judge of Costa Rica to the authorities of the Bahamas…” (Cf. f.8324 of volume XIX of the file), since with evidence item 543, the prosecuting body intended to prove, the “…requirement of the Public Prosecutor's Office to access the banking information related to [Name01 018], [Name01 215] among others for the “offshore” of Banco de San José in the Bahamas(…)…”(Cf. f.8324 of volume XIX of the file); with item 544, both the legalization procedure in obtaining that evidence and “…the banking backing for the operations made by [Name01 018] in “….the inflow of money coming from [Name01 058] to the account of [Name01 215] and the translation into the English language of the request made…” (Cf. f.8324 of volume XIX of the file). Hence, as an important fact, the unnumbered official communication of October 5, 2004, later called evidence item 544, is referred to the letter rogatory sent by Licenciado Adrián Molina Elizondo, in his capacity as Criminal Judge of the Treasury and Public Function of the Second Circuit, through the Secretariat of the Supreme Court of Justice and the Ministry of Foreign Affairs to the Government of the Bahamas, which was carried out on the occasion of investigation 04-0005356-042-PE, against [Name01 018], [Name01 158], [Name01 225], [Name 234], [Name02 235], and [Name02 236], for the crimes of aggravated corruption, illicit enrichment, and others, to the detriment of the Costa Rican Social Security Fund, in the case called Caja-Fischel, as is evident from folio 6629 et seq. of volume XV of the file.

In that request, the factual matrix motivating the action was also set out, indicating that it was an investigation to prove facts relating to the “Proyecto Finlandia” (facts 1 and 57) and to the “Compra de Casa en [...]” (facts 58 through 59, given that the document offered by the prosecuting entity was determined to be incomplete) (Cf.f.00015313-00015314 of volume XXXI of the case file), and although other possible implicated parties were mentioned in said petition, it was aimed essentially at verifying the actions of the defendants [Name01 018], [Name01 158], and [Name01 225], given that information was required for accounts [Value 044], [Value 045], and [Value 046] at Banco de San José in the Bahamas, specifically, the names of the owners of the indicated accounts, in addition to the “…delivery of ALL original documentation since the account was opened…” (Cf.f.6550 of volume XV of the case file. Our emphasis), which must include: “…for each account, but not be limited to: • Signature cards/• Documents related to the opening of the accounts/• General ledger cards/• Periodic account statements/ • Records of deposits and withdrawals/ • Instructions related to the receipt or transfer of any funds to or from the account whether by fax, email, or any other means of communication/ • Correspondence to, from, or on behalf of the account holder(s)/• Memoranda related to the account/• Cashier's checks and documentation for the purchase of cashier's checks/• Balances/• Closing dates/• Inactivity/• Any other documentation of the account, transaction, or financial activity…” (Cf.f.6550 of volume XV of the case file. Our emphasis), such that the content of Exhibit 545 corresponds to the records and documents that the bank accounts produced. Once all these evidentiary elements were provided by the prosecuting body in its request to proceed to trial, the defense counsels argued about their legality, insofar as the fragmentation has been questioned, due to the document incorporated as Exhibit 543 being incomplete, Name02 as well as the absence of the corresponding judicial order to access sensitive information such as that relating to foreign bank accounts (Cf.f.00015310 of volume XXXI of the case file). However, Judgment 167-2011, issued at first instance, by majority vote, in response to the defensive claim of attorney Villalobos, established in section “…1. Bank evidence from Banco de San José in the Bahamas requested in the \"Caja-Fischel\" case and provided as evidentiary material in this process (Exhibits No. 543, No. 544, and No. 545)” (Cf.f.15310 of volume XXXI of the case file. The emphasis belongs to the original), the legality of both those evidentiary sources and their subsequent incorporation into the present process, when it determined that said material, despite originating from case file 04-5356-042-PE, against [Name01 238] and others, called \"Caja-Fischel\" and having been added to the present case file 04-6835-647-PE, could be transferred, as there is no express legal prohibition in this regard and determining that: “…at the time the Fiscalía formulated the referred petition to the criminal(sic) judge(sic) of the preliminary stage so that he would request the evidence of interest from the competent(sic) authorities(sic) of the Bahamas, it did not have the necessary clarity to envision that these facts were unconnected from those it was then investigating in the context of the \"Caja-Fishel\" case (Cf.f.00015312 of volume XXXI of the case file). Likewise, that although the copy of at least ten folios from the last part of the original document, delivered by the Costa Rican Fiscalía, had been omitted, the truth was that from those photocopies it was not possible to extract bad faith on the part of the prosecutorial representatives, given that the authorization of Judge Adrián Molina Elizondo to gather this evidence in the Bahamas was derivable from them without any problem (Cf.f.00015313 of volume XXXI of the case file). However, the Tribunal de Apelación de Sentencia, regarding the defensive challenges, determined that BAC San José in the Bahamas did not constitute an extension of its counterpart in Costa Rica, for which reason any bank information coming from that entity should have been processed through the corresponding legal means, that is, through the issuance of the respective judicial order, which was absent in this process. Furthermore, according to the Ad quem, its use was restricted to case 04-0005356-042-PE, so its transfer to this new process was not appropriate, aside from the fact that the correspondent relationship (corresponsalía) between BAC San José and BAC Bahamas Limited had not been demonstrated (Cf.f.174525-174526 of volume XLI of the case file). For these last reasons, the Ministerio Público is again arguing the legality of these pieces of evidence, only now based on the guidelines and restrictions contemplated in Article 468(b) of the Código Procesal Penal. Now then, based on the preceding account, it is necessary to make some reflections of interest, given that from the reading of the section called: “…B. Spurious Evidence. In the second ground of the appeal filed by [Name01 018], 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 illegal and unusable for the conviction…” (Cf.f.174525 of volume XLI of the case file) contained in the contested ruling 2550-2012, this Cámara de Casación notes the existence of errors of erroneous application of constitutional and legal norms, infringement of the principle of derivation, and absence of intellectual reasoning, with respect to Exhibit 110, alleged by the prosecuting body, based on the following considerations: i) Erroneous application of Articles 24 of the Constitución Política; 1, 28, and 29 of Ley 7425, of August 9, 1994, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, and 615 of the Código de Comercio. According to the reasoning set forth in the contested ruling, it is possible to confirm that the Ad quem required, as a prerequisite to decree Exhibits 543, 544, and 545 as legal, a new judicial order in the present process, maintaining that the information originating from Bac Bahamas Bank Limited, aimed at lifting the bank secrecy of the accounts of the accused [Name01 018], should have been gathered by means of a judicial resolution that Name02 allowed it, the transfer of those evidentiary elements from one process to another not being possible, when the truth is that the aforementioned articles do not contain an express prohibition on their use in subsequent cases. Certainly, before continuing with the examination of the aforementioned evidence, it is necessary to reiterate that Article 24 of our Constitución Política enshrines the fundamental right to privacy, freedom, and the secrecy of communications, for which reason the article is transcribed again, in order to establish that said norm states that: “The right to privacy, freedom, and the 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 will require the votes of two-thirds of the Diputados of the Asamblea Legislativa, shall establish in which cases the Tribunales de Justicia may order the seizure, search, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their knowledge./ Likewise, the law shall determine in which cases the Tribunales de Justicia 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. Judicial resolutions covered by this norm must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority./ The law shall establish the cases in which the competent officials of the Ministerio de Hacienda and the Contraloría General de la República may review accounting books and their annexes for tax purposes and to supervise the correct use of public funds./ A special law, approved by two-thirds of the total Diputados, shall determine which other organs of the Public Administration may review the documents that said law indicates in relation to the fulfillment of their regulatory and supervisory competencies to achieve public purposes. Likewise, it shall indicate in which cases such review is appropriate./ Correspondence that has been removed and information obtained as a result of the illegal intervention of any communication shall not produce legal effects. / (Thus amended by Article 1 of Ley No. 7607 of May 29, 1996. Our emphasis). From the cited constitutional norm, it is evident that the fundamental right to privacy enshrined in that article is intimately related to the sphere of protection of the private life of individuals within a Democratic State, since it is comprised of: “…those phenomena, behaviors, data, and situations of a person that are normally withheld from the knowledge of strangers. Said sphere of privacy is justified because in a democratic system every person has the right to maintain confidentiality over certain activities, data, documents, or opinions of theirs, since it is impossible or very difficult to coexist and fully develop the goals a person sets for themselves without enjoying a framework of privacy, protected from interference by the State or other persons (see Article 11.2.3 of the Convención Americana sobre Derechos Humanos or Pacto de San José)…” (Tribunal Contencioso Administrativo, Sección VI, Voto 2010-02958, of eight o'clock, on August tenth, two thousand ten. The highlighting is ours). However, as defined in Voto 2010-02958, of the Tribunal Contencioso Administrativo, Sección VI cited above, with emphasis on Voto 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five, of the Sala Constitucional, within the right to privacy contemplated in Article 24 of the Constitución Política, the inviolability of private data and documents must be considered as a manifestation of that guarantee, insofar as it is understood as a safeguard so that private parties cannot access them and, at the same time, as a prohibition so that public or private entities that handle that information cannot supply it to third parties, given that: “…Article 24 of the Constitución Política guarantees all persons an intangible sphere of privacy from other legal subjects, such that those intimate, sensitive, or nominative data that a public entity or organ has collected, processed, and stored, because they are contained in its archives, registries, and physical or automated files, cannot be accessed by any person as this would constitute an unconstitutional external intrusion or interference…” (Sala Constitucional de la Corte Suprema de Justicia, Voto 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five. In a similar vein, Voto 2003-00136, of fifteen hours twenty-two minutes, on January fifteenth, two thousand three, cited in Tribunal Contencioso Administrativo, Sección VI, Judgments 2010-02958, of eight o'clock, on August tenth, two thousand ten and 838-2009, of eight hours thirty minutes, on May sixth, two thousand nine). Despite the indicated restrictions, the inviolability of private data and documents is also not unrestricted, since the Constitución Política itself establishes limitations or exceptions, when it refers to the law, with Ley 7425 having been enacted to establish specific regulations, in the case of interventions of oral or written communications and the right to privacy in general, while specifically, for bank secrecy, it refers to Article 615 of the Código de Comercio. In this regard, regarding the notion of bank secrecy, as an essential topic for the resolution of the grounds raised by the prosecuting entity, it must be maintained that the Sala Constitucional itself has understood it as “…a legal manifestation of the legal right protected through the provisions of Article 24 of the Constitución Política (fundamental right to privacy). In that sense, bank secrecy is '...the duty imposed on every financial intermediary entity not to reveal the information and data it possesses about its clients from any bank transaction or bank contract it has entered into with them, especially in the case of current accounts, since Article 615 of the Código de Comercio expressly enshrines it for that hypothesis...'” (Sala Constitucional de la Corte Suprema de Justicia, Voto 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five cited by Tribunal Contencioso Administrativo, Sección VI, Voto 2010-02958, of eight o'clock, on August tenth, two thousand ten. In the same sense, Sala Constitucional de la Corte Suprema de Justicia, Votos 2014-005599, of fourteen hours thirty minutes on April thirtieth, two thousand fourteen; 2004-14210, of fifteen hours four minutes, on December fourteenth, two thousand four and 2003-00136, of fifteen hours twenty-two minutes, on January fifteenth, two thousand three. In a similar position, Name85 (Mario), Secreto Bancario, in Name86 (Name87) and others, Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p.525. A notion that, without a doubt, is closely linked to Ley 7425, to which Article 24 refers, and especially to the first article, which imposes on the Tribunales de Justicia the exclusive competence to “authorize the search, seizure, or examination of any private document, when it is absolutely indispensable to clarify matters submitted to their knowledge”, with exclusively Article 615 of the Código de Comercio covering the topic of bank secrecy in bank account contracts, stating that: “… Bank current accounts are inviolable and banks may only supply information about them upon request or with written authorization from the owner, or by order of a competent judicial authority. The intervention that, in compliance with its functions determined by law, is carried out by the Superintendencia General de Entidades Financieras, or by the Dirección General de Tributación duly authorized for this purpose, is excepted”. (Thus amended by Ley 9068, Ley para el cumplimiento del estándar de Transparencia Fiscal, of September 10, 2012. Our emphasis). From the regulations present in both norms, it is clear that in our legal system, bank secrecy constitutes a derivation of the fundamental right to privacy, which has as a fundamental requirement to be breached, the issuance of a resolution issued by a competent jurisdictional entity. However, by its nature, it can also be waived through the free and voluntary authorization of the account holder. Nevertheless, in either of the two options, its use is not restricted to the criminal case in which the lifting of the bank documents was carried out. It must be recognized that the only restriction is with respect to written or telephone communications, which is expressly contained in Article 28 of Ley 7425, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, which specifically prohibits the transfer of evidence related to the intervention of written or telephone communications, when it states: “Article 28. Restricted use of information. The results of the intervention of oral and written communications may not be used for any purpose other than that which motivated the measure” (The underlining is ours), since it must be remembered that in the case of interventions of oral, written, telephone, or any other type of communications, Article nine of the same Ley 7425, dealing with the violation of a fundamental right, by the principle of proportionality, specifies in an exhaustive list the crimes for which that restriction is permitted. On the topic, note that both constitutional jurisprudence and that of this Sala Tercera have considered the use of results obtained through written or oral interventions, ordered in one criminal process, which are used in another of the same subject matter, or, for example, within sanctioning or disciplinary processes, as a practice violating the right to privacy (See in the same sense, Sala Constitucional de la Corte Suprema de Justicia, Voto 2014-004035, of eleven o'clock, on March twenty-first, two thousand fourteen, which also alludes to rulings 1571-96, of twelve hours thirty-six minutes, on March twenty-ninth, nineteen ninety-six; 06378-1995, of sixteen hours, on November twenty-second, nineteen ninety-five; and 2007-003890, of fifteen hours fifty-one minutes, on March twentieth, two thousand seven; 9421-02, of sixteen hours eight minutes, on September twenty-sixth, two thousand two; 1991-678, of fourteen hours sixteen minutes, on March twenty-seventh, nineteen ninety-one; 1994-1026, of ten hours fifty-four minutes, on February eighteenth, nineteen ninety-four; 2268-03, of sixteen hours forty-seven minutes, on March eighteenth, two thousand three. In the same sense Sala Tercera de la Corte Suprema de Justicia, Voto 2013-00073, of nine hours and seven minutes, on February twelfth, two thousand thirteen). However, the restriction contained in Article 28 of Ley 7425 could not be applied to private bank information derived from the lifting of bank secrecy, since this is only referred to the intervention of oral and written communications. In contrast, Article 22 of the same Law contains a duty of confidentiality for those in charge of intervening in these communications, be they police officers, auxiliaries of the administration of justice, or judges, when it expressly refers, within the title of “RESPONSIBILITIES, PROHIBITIONS AND SANCTIONS” that: “…The officials and employees participating in the intervention of communications, the search, seizure, or examination of documents, or those who have the power to request these measures, are prohibited from: 1. Using the results of the intervention for purposes other than those that motivated it…”. The foregoing shows that these are two dissimilar situations, since there is no norm within Ley 7425 that restricts the transfer of evidence derived from bank information obtained from another process, which leads to the conclusion that, in the absence of an express prohibition, such evidence, complying with the requirements of transferred evidence (prueba trasladada) demanded by doctrine, may be used in subsequent processes, provided they are criminal in nature. On the topic, based on the principles of freedom and breadth of evidence, unity of jurisdiction, and procedural economy, the majority position of criminal procedural doctrine has admitted, regarding evidentiary activity, the concept of \"transferred evidence\" (prueba trasladada), \"borrowed evidence\" (prueba prestada), or \"transfer of evidence\" (traslación de la prueba) as that evidence which has been produced for a specific process and is made valid in another. Thus, for author Name88, transferred evidence is nothing other than that which \"...is practiced or admitted in another process and which is presented in an authentic copy or by the detachment of the original, if the law permits it\" (Name88 (Name89), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor Name90. de Zavalía, 1981, p.367), while for Name91 (Name92), El proceso en evolución (\"O processo em evoluçâo\"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Name93 (Name10), Prueba Trasladada (o producida en otro expediente judicial), in Name94 (Name95) and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, it is \"that which is produced in one process to generate effects therein, and is later transferred documentarily to another, going on to generate effects in a different process.\" For both authors, as a general rule, to apply the transfer of evidence, if there is no regulation to the contrary that Name02 prohibits it, any evidence can be useful in one or several processes, hence, as essential requirements for the admissibility of said evidence, the same author Name93 (Name10), Prueba Trasladada (o producida en otro expediente judicial), in Name94 (Name95) and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.371-377, has described at least five prerequisites for its validity: 1. Participation of the counterparty in the production of the evidence: that is, in obtaining the transferred evidence, the principles of contradiction and defense must have been guaranteed (In the same sense, Name88 (Name89), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor Name90. de Zavalía, 1981, p.367 and 373). 2. Identity of parties: for the majority doctrine, according to Name93, borrowed evidence does not need to possess the characteristic of identity of parties in both processes, but rather that the affected party had the opportunity for contradiction in the previous process. 3. Collection of evidence in a jurisdictional process: by the principle of jurisdictional unity, for the borrowed evidence to be valid, it is essential that its collection was produced within a jurisdictional process (In the same sense, Name88 (Name89), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor Name90. de Zavalía, 1981, p.373). 4. Identity of facts: by the principle of ne bis in idem, absolute identity of the facts of both processes would not be necessary, but rather at least a simple relationship. 5. Compliance with legal formalities: according to Name93, for the transfer of evidence in a second process to be valid and effective, the regularity of the evidence obtained in the original process is indispensable. In this way, regarding the last of the established requirements, it is clear that if the procedural regulation in the legal system restricts evidentiary activity solely to the specific case, the transfer of evidence from one case file to another would invalidate that evidence for the second process, even if the origin of the first were valid. In this regard, in the present process, the principles of contradiction and defense have been guaranteed, since the accused and their defenses have been able to object to this evidence, to the point that the Tribunal de Apelación de Sentencia Penal declared it illegal. Likewise, Exhibits 543, 544, and 545 were collected within a jurisdictional process, where a relationship existed between the facts of the first process and those that the Ministerio Público investigated in this other case, and finally, the compliance with legal formalities was presented, Name02 as well as the non-existence of a legal or supra-legal norm that would prevent the transfer of the aforementioned evidence. (On the requirements of transferred evidence, see Name91 (Name92), El proceso en evolución (\"O processo em evoluçâo\"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Name93 (Name96), Prueba Trasladada (o producida en otro expediente judicial), in Name94 (Name95) and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, cited in section VI of this judgment). Precisely, note that the letter rogatory sent by Judge Molina Elizondo to the Government of the Bahamas was based on Articles 62, 65, 154, 180, and 181 of the Código Procesal Penal, Article 41 of the Costa Rican Constitución Política, and Articles 5 and 6 of the Vienna Convention, so that, regarding the requirements demanded by our legislation concerning the letter rogatory, the resolution fully complied, and the challenges aimed at determining its illegality based on its transfer from case file 04-005356-042-PE or Caja-Fischel to the present case are not admissible, since Ley 7425, as analyzed supra, does not contain restrictions for this type of information, as the only reference to the prohibition of transferring evidence is contained in Article 28 of Ley 7425, but it refers to other scenarios, namely the interventions of oral or written communications. Name02 things were, this Chamber finding no defect under the indicated regulations that conflicts with the requirements of transferred evidence, in application of the principle of freedom of evidence contained in Article 182 of the Código Procesal Penal, the legality of these pieces of evidence must be declared. Furthermore, note that when the Tribunal de Apelación resolved the defensive challenges, it also omitted to determine the procedural importance of said body of evidence, by dispensing, in the construction of its reasoning, with examining whether this was the product of an independent source or whether, on the contrary, it was evidence derived from another piece of evidence that was transcendental for the process. In this sense, given that the Tribunal de Apelación declared null evidence that was not, due to the erroneous application of constitutional and legal norms, Judgment 2550-2012 lacks sufficient reasoning and Name02 must be declared so. Despite this, in strict adherence to the legal restrictions incorporated with the entry into force of Ley 8837 on the competencies of this Sala Tercera, regarding evidentiary assessment, it will be up to the Tribunal de Apelación de Sentencia, with a new composition, to analyze, in accordance with the rules of sound criticism, Exhibits 543, 544, and 545, based on their comprehensive assessment in line with the evidentiary elements incorporated into the debate. ii) The second instance judgment presents an infringement of the principle of derivation, which prevents its effectiveness: In accordance with the reasoning contained in folios 174525 to 174526 of volume XLI of the case file, it is clear that the Tribunal de Apelación, in Judgment 2012-2550, incurs an infringement of the rules of sound criticism, specifically the principle of derivation, when it categorically states that Exhibits 543, 544, and 545 are illegal and unusable within this process, because: “…the alleged correspondent relationship (corresponsalía) or reciprocal representation contract between BAC San José and Bahamas Bank Limited is another important issue that has not been demonstrated in the species and it is also not known whether the mentioned banks can exchange available information from their accounts by mere internal administrative request for the normal course of their financial activities (…) Thus, the evidence obtained without any correspondent relationship contract between the banks, and without the lifting of bank secrecy makes the obtained information illegal and unusable as evidence in the criminal process under review. Furthermore, the effects already considered from the appeal filed by the defendants [Name02 001], [Name01 028], [Name01 041], and [Name01 018] apply…” (Cf.f.174526 of volume XLI of the case file. Our emphasis), while from Exhibit 413, linked to the official letter of January thirty-first, two thousand six, signed by the Jefa de Gestión de Riesgos Operativos of BAC San José, [Name01 233] (Cf.f.6673 of volume XV of the case file), a different conclusion can be drawn, since the mentioned document certifies that: “…In accordance with our correspondent relationship contract, in which BAC San José operates as the agent bank for BAC Bahamas Bank Limited and duly authorized by the legal counsel and the Administration of said institution, we proceed to make the following clarifications related to the information delivered by BAC Bahamas to the Fiscal General of the Bahamas on June 9, 2005, document with reference CLE-GEN-00293, thereby responding to your official letter No.40-FADECT-06-MM of January 19, 2006./ As part of the information sent by BAC Bahamas to the Fiscal General of the Bahamas on June 9, 2005, photocopies of the following three investment certificates with their respective coupons were delivered (…) These certificates were received by BAC San José(sic) on January 15, 2002 to transfer to BAC Bahamas together with an amount of $8,165.23 debited from account No.[Value 047] in the name of [Name01 018]. With this money plus the principal and interest of certificate 720016762 in the name of [Name01 018] totaling $161,725, BAC Bahamas constituted on January 15, 2002, certificate No.720096897 in the name of [Name01 018] for $200,000…” (Cf.f.6673 of volume XV of the case file). In this way, it is clear that from said evidence it is possible to derive a commercial relationship between BAC San José and BAC Bahamas Bank Limited, which determines, without a doubt, the existence of the aforementioned correspondent relationship (corresponsalía) between the banking entities indicated above, and that the conclusion of the Tribunal de Apelación did not integrally consider evidence of transcendental value such as the content of Exhibit 413, making the aforementioned assertion lightly.

• iii)Nor did the Ad quem assess evidentiary item 110, which is particularly related to evidentiary items 543, 544, and 545. Within the concept of bank secrecy, as upheld by legal doctrine, “…there are limits (…) of a merely private nature or subjective limits, such as the express consent of the client, interbank information, or the legitimate interest of the Bank in lifting bank secrecy, the latter normally referring to cases of conflict with the client…” (GUILLÉN FERRER, María José, El secreto bancario y sus límites legales (límites de derecho público), Tirant lo Blanch, 1997, p. 115). Regarding the client's express consent, it has also been established that “…the basis of this limit finds its reason for being in the fact that (sic) the very holder of the secrecy, the principal interested party in (sic) maintaining confidentiality, agrees to the revelation of the secrecy in itself considered as the will to conceal. The client's express consent to the lifting of bank secrecy constitutes a limit unanimously admitted by doctrine, which must be related to the waivable nature of the right to privacy in general that every person, both natural and legal, possesses. Consent in these cases does not imply the absolute abdication of this right or an absolute and abstract renunciation thereof, but rather constitutes a partial and voluntary relinquishment of the powers conferred by the right to privacy…” (GUILLÉN FERRER, María José, El secreto bancario y sus límites legales (límites de derecho público), Tirant lo Blanch, 1997, pp. 115-116). This subjective limit of bank secrecy, unlike in other legal systems, is legally recognized in our country in Articles 615 of the Commercial Code (Código de Comercio) and 29 of Law 7425 (Ley 7425), since the lifting of bank secrecy can arise both from an express judicial resolution and from the respective authorization of its holder. However, in the specific case, that evidence was never examined in relation to the authorizations issued by the accused [Name01 028] and [Name01 221], who freely and voluntarily empowered Cuscatlán Financial Group to provide any information and documentation requested by the Judicial Authorities of Costa Rica concerning their bank accounts, nor was it examined that these Banks, in light of Articles 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica), have the particularity of forming a financial group based in Costa Rica, where the information regarding those accounts was stored in our country, which made it possible to establish that all account movements were carried out from Costa Rica. On this matter, it must be recognized that Article 29 of Law 7425 establishes that: “There shall be no illegitimate intrusion when the holder of the right grants express consent. If there are several holders, the express consent of all must be obtained. This consent shall be revocable at any time” (Emphasis added), which implies that this right to privacy is available to the account holder, such that the subject may waive it, as long as it is done freely and spontaneously, since bank secrecy, as it pertains to the natural person, is available individually or through a legal entity. (See also, Name85 (Mario), Secreto Bancario, in Name86 (Name87) et al., Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p. 525). Thus, if the co-defendant [Name01 028] and his wife decided, through respective official letters, to reveal their accounts to third parties, given the criminal proceedings pending against them, this Chamber finds no illegality whatsoever; on the contrary, it is considered that said evidence should have been analyzed by the competent Court in light of evidentiary items 543, 544, and 545, which is notably absent in the instant case. In conclusion, in accordance with Articles 467, 468, 469, and 471 of the Criminal Procedure Code (Código Procesal Penal), the first, second, and third grounds of the Third Section of the Public Prosecutor's Office's Cassation Appeal are granted; therefore, on these grounds, the acquittal judgment issued in favor of [Name01 001], [Name01 028], [Name01 041], [Name01 018], [Name01 022], [Name01 033], and [Name02 006] is annulled…”. As extracted from the text transcribed above, the Third Chamber concluded that evidentiary items 543, 544, and 545 were lawful, just as the trial court had indicated. Specifically, the cassation body considered that since it is not proscribed by the legal system, there was no impediment to transferring the information related to BAC Bahamas Bank Limited, obtained in case file 04-005356-042-PE, known as Caja-Fischel, to the present case. Likewise, based on evidentiary item No. 413, it concluded that there was a correspondent contract by virtue of which BAC San José operated as the agent bank for the former. This being the case, by upholding the claims made by the requesting body, the Chamber settled the questions raised by the defense counsel of [Name01 018] and by the accused himself, since by reason of the first point (the legitimacy of the transfer of evidence carried out), it is ruled out that this information should only be weighed in the Caja-Fischel case, or that it was necessary to fulfill in this matter the requirements that had already been satisfied in the original proceeding (e.g., the judicial resolution authorizing the lifting of bank secrecy). Also, because of the foregoing, it becomes irrelevant that when translating the letter rogatory from English to Spanish, information contained in the one sent to the Bahamas was omitted, namely, the indication that the evidence would be used solely to elucidate the facts investigated in the Caja-Name01 case (cf. folios 6,628 and 6,6524 of Volume XV). This is to the extent that such a statement, inserted in the letter rogatory within the section intended to explain the relevance of the requested evidence (f. 6,628 front, second paragraph), does not change the fact that within Law No. 7425 there is no norm whatsoever that prohibits transferring bank information obtained in one proceeding to another, the only scenario in which, according to the Third Chamber, the transferred evidence would be unlawful. Similarly, by reason of the second point (the existence of the correspondent contract between BAC San José and Bahamas Bank Limited, which the cassation body reasonably deduces from the evidence, particularly from item No. 413), the local bank had no impediment whatsoever to deliver the information in question. Finally, the Third Chamber, when ordering the remand, ordered this office to analyze evidentiary items 543, 544, and 545, “… from a comprehensive assessment in consonance with the evidentiary elements incorporated into the debate.” In this regard, two considerations must be made. The first is that the appellant is not questioning the examination that the trial court made of such evidence, or the conclusions it derived from them, but their legitimacy, understanding that they were obtained and incorporated into the proceeding irregularly, a point that, as already explained, was settled in cassation, concluding that the evidence is lawful. The second is that in effect, as the a quo indicated at folio 15,323 front of Volume XXXI and as the Third Chamber suggests in its resolution, specifically at folios 176,472 front to 176,473 back, the cited evidence also lacks the essentiality claimed, since there is other evidence that allows establishing the transit of funds, namely, the information gathered in relation to the transactions carried out by [Name01 058] through the various entities that make up the Cuscatlán Financial Group, of special importance being evidentiary item No. 132, folios 28 to 33, which this chamber has had in view and where the three original investment certificates and their respective coupons appear, all stamped as received by BAC San José and endorsed by BSJ International Bank. Therefore, the grounds must be dismissed, not only because evidentiary items 543, 544, and 545 have been deemed lawful by the Third Chamber, which, in its core, confirmed what the trial court stated, but also because there is other evidence that, in the same way, allows linking [Name01 018] with the acceptance of the certificates in question. For the foregoing reasons, the objection is declared without merit.

XXIX.- Due to the existing relationship, the fourth through seventh, eleventh, and twelfth grounds of the appeals will be resolved jointly. Fourth ground. Absence of the circumstantiated determination of the fact that the court deems accredited, in violation of Article 369 subsection b) of the CPP. On this point, the appellant claims: “… Recital X of the judgment, found at Folios 1555 in fine and following, refers to the so-called intellectual and legal evidentiary basis regarding the conduct of [Name01 018], culpability, and sanction to be imposed. It begins by describing via a synopsis a criminal conduct deriving, according to the Majority Judges, from the offering and subsequent payment of a gift to the accused [Name01 018], culminating in a conviction for the crime of illicit enrichment. One must then ask: if the conviction of [Name01 018] is for the crime of illicit enrichment, which requires only the admission of gifts, what relevance does the issue of an offer or offering have for the purposes of the criminality of the conduct? The Judges state at Folio 1561 that the money received by [Name01 018] was in the form of a gift, which reinforces that the reason for the conviction is solely for that alleged receipt and not for accepting any promise, and less so for carrying out any kind of action as consideration for the gift he received, according to the majority vote. But at Folio 1567, the Judges again refer to the topic of a promise, when they indicate that [Name01 018] was made a REMUNERATORY PROMISE similar to the one made to [Name01 064] and that this scenario, the Judges indicate, IS DETERMINING FOR THE RESPONSIBILITY OF [Name01 018]. Thus, Honorable Magistrates, what is it that the Majority Judges consider proven: the remuneratory promise, the receipt of the money, or both. If in point C) beginning at Folio 1567 it is determined that a meeting took place between [Name01 018], [Name01 063], and [Name01 041], and its only proof is an invoice showing the payment of a bill at the [...] café, indicating on its back that it was a breakfast at 8:21 a.m. on August 17, 2000, according to evidentiary item 81, it is evident that for the Judges it is fundamental to prove that the meeting was held and that [Name01 274] made a remuneratory promise to [Name01 018], because otherwise, said meeting would have no importance whatsoever; they would only spend their time proving the alleged receipt of the gifts and not their offering…” (F. Telf01 and Telf02 front). The appeal asserts that to overstate [Name01 018]'s actions, “they depict him as accepting a remuneratory promise derived from a meeting with [Name01 041], which is proven solely by a credit card payment voucher...” (Telf04 front). The judges acknowledge that there is no direct evidence of “the offer of a remuneratory promise from [Name01 041] to [Name01 018],” but they conclude that it can be inferred from the direct evidence available about prior and subsequent events. This, says the appellant, is unbelievable. There is no evidence in this regard; no one stated what was said at that meeting; hence, it could have been about any other topic. No one saw them at that place, no one testified about the holding of the meeting, yet the mere existence of the voucher, for the majority vote, constitutes proof of the meeting. Using this same thesis, the defense counsel ironically remarks, [Name01 041] could have indicated on the expense justification that he had lunch with [...] Name25 and that would be sufficient proof thereof. He adds that this leaves a doubt as to which fact is being considered proven, namely, the existence of the remuneratory promise from [Name01 041] to [Name01 018], the receipt of the gifts, or both. There is a difference between seeking to prove the remuneratory promise and seeking to prove the mere receipt of the gift. Fifth ground. Insufficient reasoning of the judgment and failure to observe the rules of sound criticism, in violation of Articles 142, 184, and 369 subsection d) of the CPP. He again questions the finding that an offer of a gift was proven without evidence thereof, relying solely on the expense justification from [Name01 041]'s credit card, which speaks of a breakfast with [Name01 018] and [Name01 063]. This proves that [Name01 041] justified the expense, but it does not prove that the meeting actually took place. Even less can the content of the meeting and its consequences be derived from this evidence: “It is not possible that the receipt of the gifts presumes their offering, as that would erase the difference between accepting gifts for an act already performed and bribery or aggravated corruption. It does not follow ([Name11]) that because a gift is received, it was previously offered...” (F. 172,755 front). Sixth ground. Insufficient reasoning of the judgment and failure to observe the rules of sound criticism, in violation of Articles 142, 184, and 369 subsection d) of the CPP. In this ground, it is stated: “… Recital X-D of the judgment, found at Folios 1572 to 1579, purports to demonstrate that [Name01 018] received a fractional payment of the gift offered on a specific date. It has already been indicated that the Majority Judges erroneously consider that in a meeting held on August 17, 2000, at 8:21 a.m., [Name01 018] was offered payment of 0.5 percent of the contract obtained..., with such precision and detail (See folio 1570). For the Judges, this precise but false determination was important, with the aim of attributing to [Name01 018] a fractional receipt of a gift previously accepted and offered. Let us see. The criminal statute of Article 346 subsection c), under which the Judges sanction [Name01 018], establishes that this crime is committed when gifts are admitted... WHILE ONE REMAINS IN THE EXERCISE OF OFFICE. [Name01 018] ceased to be a Deputy of the Legislative Assembly on April 30, 2002; therefore, any receipt of funds by [Name01 091] after that date would fall outside the criminal classification. It is indicated that the so-called first investment certificates were deposited into [Name01 018]'s accounts in January 2002, while he was a Deputy of the Legislative Assembly, which generates other issues of criminal classification and evidence that will be discussed later. But for now, we will limit ourselves to the transfers and alleged gifts remitted after April 30, 2002; that is, delivered to [Name01 018] when he was no longer remaining in the exercise of office and, therefore, without meeting the characteristics of a crime under the terms of the criminal statute described. But fully straining the evidence, the Majority Judges state that the payments made after April 30 had been offered to and accepted by [Name01 018] since that August 17, 2000. As we have already demonstrated, it is impossible to derive from the evidence that this meeting was held, and even if its existence were accepted, it is materially impossible to know what was discussed in it, and even less to specify its content in detail with the exactness that the Judges deduce…” (F. 172,756 front). As the appellant explains, since it is not possible to establish that [Name01 041] offered fractional payments to [Name01 018], any receipt of money made after May 1, 2002, would not be criminal, as [Name01 018] no longer held the office for which the gifts were allegedly offered to him. He reiterates that the judgment breached the rules of sound criticism by concluding that there was a promise of fractional payment from [Name01 041] to [Name01 018] and that this promise can only be proven through an “imaginative and creationist” act by the judges. The section concludes by stating that the existence of a promise of fractional payment cannot be demonstrated and that, therefore, since [Name01 018] did not hold public office for the payments made after April 30, 2002, his conduct would be unpunished. Seventh ground. Non-observance and erroneous application of substantive law, in violation of Article 369 subsection j). According to the court, there was a remuneratory promise fractionated into gifts from [Name01 041] to [Name01 018], which is not real. [Name01 018]'s legislative term extended from May 1, 1998, to April 30, 2002 (folio 1557 of the judgment), and therefore, the gifts he supposedly received after this latter date would go unpunished. Moreover, the judgment attempts to prove that [Name01 091], through [Name02 058], paid gifts to [Name01 018]. On this topic, it is stated: “… Let us examine in detail each of these so-called deliveries, noting that the first two were made, according to the Judges, between January and February 2002; that is, when [Name01 018] was still a Deputy, which we will address in another section. We will now analyze the deliveries from the third to the seventh. Third delivery: detailed at folio 1584 to 1587. According to the Judges, the funds leave [Name01 058]'s account and reach [Name02 018] through [Name01 063] in January and October 2003, for a total amount of 55,000 dollars. At those dates, [Name01 018] no longer held the office of Deputy; since May 8, 2002, he was the Executive President of the CCSS, a position absolutely different from that of Deputy, with no relation to it, and even less to [Name01 091]'s activities. Therefore, it is clear that, even if such transfers and deliveries of money existed, which is not the case, as will be analyzed later, they would be atypical, as they were received when he was no longer remaining in the exercise of office, which is an element of the criminal statute of illicit enrichment. Fourth delivery: detailed at folio 1587 to 1598. According to the Judges, there are 19 investment certificates delivered by [Name01 018] to [Name01 158] that are not included in the accusation and, therefore, cannot serve as a basis for conviction; in any case, all of them were issued after May 1, 2002, as recorded at Folio 1594, since the first is dated July 2 of that year, more than two months after [Name01 018] had left the office of Deputy. In any case, the receipt of such investment certificates is not an accused fact. The only one reported is number [Value 041] for 50,000 dollars, described at folio 1596, and according to the Judges, it was delivered to [Name01 018] on May 5, 2003, more than a year after he had left the office of Deputy; therefore, its alleged receipt would be atypical. Fifth delivery: detailed at folios 1598 to 1607. According to the Judges, through the company [Name 215], [Name01 018] received three transfers of 55,000 dollars on July 17, 2003, 275,000 dollars on October 27, 2003, and 100,000 dollars on January 7, 2004, as indicated at folio 1598 in fine. All of them are evidently after May 1, 2002, and they would have been transferred, if it were true that they were directed to [Name01 018], 14 months, 17 months, and 20 months later, respectively, after he had left the office of Deputy; therefore, their eventual receipt would be atypical. Sixth delivery: detailed at folios 1607 to 1608. In a completely malicious manner, the transfer of October 27, 2003, mentioned in the previous point, is repeated with the spurious aim of inflating and overstating [Name01 018]'s conduct. Seventh delivery: detailed at folios 1608 to 1613. Again, in a malicious manner, the transfer of January 7, 2004, is repeated. Therefore, there are not seven deliveries but five that the Judges analyze; the other two are repeated with malicious intent. But the worst is what they state at Folio 1610, when they indicate that all these sums they attribute to [Name01 018] as having been received originate from a single act of illicit enrichment and that they were received in late 2001 and early 2002. UNBELIEVABLE. It is proven that the sixth and seventh deliveries did not exist and are nothing more than repetitions of the previous ones. It is demonstrated that it is impossible to prove that there was a remuneratory promise in August 2000 for the total of the gifts and that it was therefore a matter of fractional payments of a total gift already admitted since that year 2000, as the Judges maliciously claim…” (F. 172,757 and 172,758 front). Any payment, gift, or transfer of money that [Name01 018] allegedly received after May 1, 2002, is an atypical act, because he no longer held the office of deputy, a capacity in which, according to the judgment, he received those sums of money. Eleventh ground. The judgment is insufficient in its reasoning for determining the quantum of the penalty imposed on [Name01 018] and for denying the grant of conditional execution of the sentence, in violation of Articles 59, 60, and 71 of the Criminal Code (Código Penal) and 367 and 369 subsections d) and i) of the C.P.P. The court imposed on [Name01 018] the penalty of two years of imprisonment (understandably, the maximum penalty) for a crime of illicit enrichment and denied him the benefit of conditional execution of the sentence. The reasoning for both decisions is insufficient. Regarding the first, they considered the defendant's understanding of his acts, his intelligence, his status as a deputy, and his capacity to conceal his illicit enrichment. Now, the challenger alleges that “if he understood and acted accordingly” is a condition that must be considered to determine culpability and not to impose the penalty. Furthermore, his status as a deputy is not a circumstance that justifies aggravating the sanction, as this would lead to imposing the maximum penalty every time a deputy is declared guilty. See also that [Name01 018] did not carry out any activity as a deputy in the exercise of his functions; therefore, neither the public function nor public treasury assets were endangered. Regarding the amount of the gift, which the judges estimate at over 500 thousand dollars, he questions that they consider sums he allegedly received after he ceased to be a deputy, in clear violation of Article 346 of the Criminal Code: “Thus, if that sum were excluded, what would remain are the 30,000 dollars estimated to have been received in the Bahamas account, whose legality is questioned, and the 40,000 dollars constituted by the certificates whose delivery is debated in this appeal; but even accepting as a hypothesis the receipt of the gift while he remained in the office of Deputy, its amount would be 15 percent of what the judges calculate; therefore, the penalty would never be the maximum set…” (F. 172,763 front). Regarding what occurred when he was no longer a deputy, since it is not punishable, it could not be considered to increase the penalty either. He adds that matters related to his daughter's vehicle and the alleged use of [Name01 063]'s and [Name01 158]'s accounts refer to amounts supposedly received when the defendant did not hold the office of deputy. Likewise, he considers that the rejection of the benefit of conditional execution of the sentence, regulated by Article 59 et seq. of the Criminal Code, is not reasoned. Although it is a benefit and not a right for the accused, the court should have provided reasons for the denial, as the Constitutional Chamber (Sala Constitucional) stated in Resolution No. 3624-96. Observe that the judges, to justify the denial, only mention the criminal participation from the Legislative Assembly, the so-called social damage caused, and the amount of the gift allegedly received. The challenger states: “… Let us analyze this reasoning: with this thesis, Deputies who are convicted cannot receive the benefit, which improperly applies a criminal law of the author rather than the act. The mere fact of being a Deputy is enough to deny the benefit. It refers to a social damage caused when the same judgment omits a pronouncement on the civil compensatory action, Name03 claiming that alleged damage, so it is contradictory to rely on the alleged existence of damage and not resolve it. Regarding the amount of the gift, this has no relation to the requirements for the benefit to proceed, which are incorporated in Article 60 of the Criminal Code, to which the Court never referred; it completely ignored it, as if it did not exist, and denied the benefit praetorianly, without any legal basis…” (F. Telf03 and Telf05 front). Therefore, he requests that the imposed penalty be annulled, or at least the rejection of the benefit of conditional execution of the sentence. Twelfth ground. The judgment does not apply the rules of sound criticism, provides no reasoning whatsoever, and departs from the provisions regulating the penalty of disqualification when it sanctions [Name01 018] with twelve years of disqualification from obtaining and holding public jobs, positions, or commissions, in violation of Articles 142, 184, and 369 subsections d) and i) of the C.P.P. and 50, 57, 58, and 358 of the Criminal Code. Although it is within the judges' power to sanction with disqualification, its application must be reasoned, as must its duration, which is not the case here. The matter was justified in two lines, at folio 1,625 in fine. A twelve-year disqualification was imposed, and the reasons why this penalty is deemed appropriate are not explained, nor is the choice of that quantum. It is not explained why it covers all “public employment” and not only those positions of popular election, which was the one [Name01 018] held when committing the crime. The challenger considers the judgment null and void in this respect, due to a total absence of reasoning.

XXX.- The objections must be partially granted, in the terms and with the consequences that will be stated. For the sake of greater expository clarity, it is necessary to reproduce some of the facts accused by the requesting body and those that the court considered proven in relation to [Name01 018]: “…220) It so happened that between the months of July and August 2000, the accused [Name01 018] and [Name01 063] held meetings with the defendant [Name02 041] and the indictee [Name01 078], in which the topic of the lack of opening by I.Name72 to public tenders for cellular telephony continued to be discussed. In one of these encounters, the accused [Name01 041] and the indictee [Name01 078] offered the accused [Name01 018], in consideration of his office, the delivery of a gift consisting of money if the opening to public tenders at I.C.E. was achieved, equivalent to 0.5% of the contract obtained. 221) By virtue of the foregoing, the accused [Name01 018] expressed his consent to the offer of the gift and decided to share it with [Name01 063], for having made the contact with the corruptors. 222) As had been agreed, once the award of the abbreviated public tender was secured in favor of [Name01 060], the accused [Name01 041], in common agreement with the indictee [Name01 078], began the fractional delivery of the gift that had been promised to the co-defendant [Name01 018] in consideration of his office. 223) To do this, they employed the payment method used with other accused I.C.E. officials, channeling the funds through the accused [Name01 028] and his company [Name01 058]. 224) Thus, on December 10, 2001, the accused [Name01 028], according to the plan previously devised with the indictee [Name01 078] and the accused [Name01 041], using money previously transferred by the company [Name01 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against [Name01 058]'s account at Cuscatlán International Bank, and on December 10, 2001, acquired with that sum a series of bearer investment certificates at Banco Cuscatlán of Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to have the securities deposited into account No. [Valor 060] in the name of BSJ International Bank at Banco San José. 225) On January 15, 2002, the accused [Name01 018], while remaining in the exercise of his office as deputy, admitted the gift that was presented to him in consideration of his office by receiving at BAC San José the three aforementioned certificates, which totaled thirty thousand dollars ($30,000). On that same date, he began enjoying the illicit money received; to do so, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] at BAC San José and $161,725 corresponding to the principal and coupon of investment certificate No. 720016762, in order to reach the total of two hundred thousand dollars ($200,000) at BAC International Bank, an amount with which he acquired, in his name, certificate No. 720096897 from the same banking entity in the Bahamas.

226) Likewise, with the funds indicated in the preceding fact, the accused [Nombre01 028] acquired investment certificates (certificados de inversión) No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he had delivered to [Nombre01 063]. Once in his possession, [Nombre01 063] endorsed the certificates with their respective interest coupons and deposited them into account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares.

227) On January 10, 2002, the defendant [Nombre01 041] continued the delivery of the illicit gift (dádiva ilícita) in favor of the accused [Nombre01 018], following what was agreed regarding the distribution of the funds with the accused [Nombre02 028]. In this manner, he applied a debit to the account of [Nombre 058]. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them numbers 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Nombre01 028] to [Nombre02 018], who accepted them on February 11 of that same year, their maturity date, immediately endorsed them, and deposited them into his account No. [Valor 047] with BAC San José, along with the four interest coupons totaling $129.16.

228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002 and issued to bearer, were delivered between January 9 and February 11, 2002, to [Nombre01 063], who, upon their maturity between February 11 and 13, 2002, endorsed them and deposited them into his Scotiabank, S.A. account No. [Valor 061], with their respective interest coupons amounting to $64.58.

229) Without specifying a date but at the end of 2002, after the accused [Nombre01 018] accepted the gift delivered to him in consideration of his office as deputy, without the total delivery thereof having been made and without there having been a prior collaboration agreement, he devises a procedure to avoid being directly linked to the crime and to divert the controls of the national banking system. To this end, he asked the accused [Nombre01 063] for an account number to partially receive the gift; knowing the illicit origin of the money, [Nombre01 063] provided him with bank account number No. [Valor 059] with Banco Internacional de Costa Rica (BICSA) at the Miami Agency, information that [Nombre01 018] transmitted to [Nombre02 041], who in turn referred it to the defendant [Nombre02 028].

230) Thus, on January 16, 2003, the accused [Nombre01 028], through his company [Nombre02 058], ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059] of the accused [Nombre01 063], but intended for [Nombre01 018], by applying a decrement to the demand investment No. Identificacion21 for the cited sum.

231) With the crediting of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, the accused [Nombre01 063] acquired from BICSA bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus interest coupons for $74.44, for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and maturing on February 28, 2003. Subsequently, the accused [Nombre01 063], after endorsement, delivered them to the accused [Nombre01 018].

232) Once this part of the gift was accepted through the intermediation of [Nombre01 063], the co-defendant [Nombre01 018], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Valor 047] with BAC San José; he canceled eight thousand dollars ($8,000) in payment of his credit card [Valor 050] from BAC San José and kept the sum of nine thousand nine hundred dollars ($9,900) in cash.

233) To complete the delivery to the accused [Nombre02 018] of the fifty-five thousand dollars ($55,000) received in his account, the accused [Nombre01 063], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Nombre02 018] No. [Valor 047] with BAC San José, on October 28 of that same year.

234) In this way, the accused [Nombre01 063] helped ensure that the defendant [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment obtained for having accepted the gift delivered by the employees of [Nombre01 091].

235) On an unspecified date but approximately at the beginning of 2003, the accused [Nombre01 028] continued with the delivery of the remainder of the gift originating from [Nombre01 060] via [Nombre 058]., in favor of the defendant [Nombre02 018]. The latter, for the purpose of evading banking controls and concealing the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; thus, [Nombre01 018], covering up the illicit origin of the funds and the reason for their receipt, asked [Nombre01 158], a trusted friend, to lend him a bank account outside Costa Rica, claiming he needed it because money from the sale of a property would be coming in and he wished to keep it in an account outside the country. Thus, [Nombre01 158] provided him with the bank account registered in the name of his company [Nombre 215], No. [Valor 041] with BAC Panamá.

236) On April 2, 2003, the defendant [Nombre02 028], by means of a note, requested the application of a debit to account No. [Valor 012] of [Nombre 058]. with Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was No. Identificacion22 for fifty thousand dollars ($50,000) with a 33-day term. This instrument was delivered to [Nombre01 018], who, with the aim of evading detection in his criminal activity, on May 5, 2003 gave it to [Nombre01 158] to deposit into the account of [Nombre02 215]. In turn, [Nombre01 158] entrusted [Nombre01 225], a trusted employee, to carry out the corresponding procedure; thus, [Nombre01 225] liquidated that certificate along with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian company [Nombre01 215]., which was deposited into account No. [Valor 041] with BAC International Bank Panamá on May 6; thereby, [Nombre01 018] succeeded in illicitly increasing his assets with the money originating from [Nombre01 091], via [Nombre 058].

237) The defendant [Nombre01 018] informed the co-defendant [Nombre01 028] of the account number in the name of [Nombre01 215] to which subsequent deliveries should be sent. Consequently, on July 17, 2003, the accused [Nombre01 028], as legal representative of [Nombre01 058]., continued with the delivery of the illicit gift in favor of [Nombre01 018]; to do so, he again instructed the banking entity to apply a debit to his company's account and to transfer to the order of [Nombre02 215], to account No. [Valor 041] with BAC Panamá, the sum of fifty-five thousand dollars ($55,000).

238) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Nombre02 215]., without specifying a date, but shortly before August 11, 2003, the accused [Nombre01 018] asked [Nombre01 158] for help in purchasing a vehicle for his daughter [Nombre01 243]. [Nombre01 158] contacted the sales manager of Agencia Purdy Motor, with whom he coordinated the purchase of a Toyota brand RAV 4 model vehicle and gave her the telephone number of the accused [Nombre01 018] to arrange the purchase.

239) To pay for the vehicle, the accused [Nombre01 018] asked [Nombre01 158] for a check for its value. Consequently, [Nombre01 158] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from the checking account No. [Valor 041] of his represented company [Nombre 215] with BAC International Bank Panamá payable to Banco San José, and instructed [Nombre01 225] to use it to purchase a cashier's check in the name of Purdy Motor for the stated sum. On August 11, 2003, [Nombre01 018] formalized the transfer of the RAV 4, Toyota, red, four-door vehicle, license plate [Valor 052], into the name of [Nombre01 243], to whom he gifted it.

240) Continuing with the disposal of the money originating from [Nombre01 060], the accused [Nombre 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre01 215] to combine it with money from another source and acquire a dwelling in [...].

241) On October 27, 2003, the accused [Nombre01 028] ordered that from the account of [Nombre 058]., with Banco Cuscatlán, a debit of one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) be applied and that a transfer be made to account No. [Valor 041] of [Nombre 215]., with BAC International Bank Panamá, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the accused [Nombre01 018], a deposit that became effective on October 29, 2003.

242) Finally, on January 7, 2004, the defendant [Nombre01 028], as legal representative of [Nombre 058]., instructed the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum to send a transfer for one hundred thousand dollars ($100,000) to the account of [Nombre 215]., No. [Valor 041] with BAC International Bank Panamá.

243) According to the foregoing, the defendant [Nombre01 028], through his company [Nombre 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] with Cuscatlán International Bank in favor of [Nombre02 215]., to account No. [Valor 041] with BAC International Bank in Panama, to be delivered to the accused [Nombre 018], an effective receipt reduced by $21.00 due to bank fees, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán, he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, via this route, [Nombre02 018] accepted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). On the other hand, through [Nombre01 063], he also accepted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift on account of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82).

244) On the other hand, for having achieved the initial contact between him and the employees of the company [Nombre01 091], the accused [Nombre01 018] voluntarily decided to give money to [Nombre01 063], as explained below.

245) On November 11, 2003, [Nombre02 018] asked [Nombre01 158] to use the money deposited by the company [Nombre 058] into the account of his represented company [Nombre 215] to acquire a cashier's check in favor of [Nombre02 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre01 158] issued check No. 008 for that sum and entrusted the procedure to [Nombre02 225], who purchased at BAC San José bank the cashier's check No. 75741-8 in favor of [Nombre 063], for fifty-six thousand seven hundred forty-six dollars ($56,746).

246) After receiving the negotiable instrument from [Nombre01 158], [Nombre 018] delivered it to [Nombre 063], who, on November 19, 2003, deposited it into account No. [Valor 051] with Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares.

247) On February 4, 2004, the accused [Nombre01 018] again asked [Nombre01 158] to use the funds originating from the company [Nombre01 058]., deposited in the account of [Nombre 215]. with BAC International Bank in Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre02 063], for which [Nombre01 158] issued check No. 010, with which [Nombre01 225], to whom the procedure was delegated, purchased cashier's check No. 75992-0 from BAC San José for the stated sum. After receiving it from [Nombre02 158], [Nombre02 018] delivered said check to [Nombre01 063], who cashed it on February 10, 2004.

248) Finally, [Nombre01 018] asked [Nombre01 028] to transfer, from the money originating from [Nombre01 091], the sum of fifty thousand dollars to [Nombre02 063]. Thus, on April 2, 2003, [Nombre01 028] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre01 028] delivered it to [Nombre 063], who liquidated it along with the accumulated interest of $121.45 and deposited all the money into account No. [Valor 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] with said institution. [Nombre01 063] added other money of unknown origin and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003.

249) Via [Nombre 215], [Nombre01 063] received from the money accepted by [Nombre 018] the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21)." (F. 14,494 and 14,500 front, volume XXX, highlighting is not from the original). Regarding the proven facts, it is held that: "201) The accused [Nombre01 018] held the status of public official as a result of a popular election in which he was designated as a Deputy of the Legislative Assembly for the Partido Unidad Social Cristiana, for the constitutional terms from May 1, 1990 to April 30, 1994 and from May 1, 1998 to April 30, 2002.

202) In the exercise of his duties as deputy, the accused [Nombre01 018] was a member of the special joint legislative committee that was formed following the social movement that arose against the legislative projects known as the "ICE combo," and on April 4, 2000, he was appointed chairman of the Special Joint Legislative Committee, taking on a direct leading role in the political activity related to the matter of telecommunications.

203) [Nombre01 063] also served as a public official from August 1, 1974 to September 27, 2004, holding a permanent position at ICE, an institution where he worked in various positions, the last of which was as Deputy Head of Management in different units from December 1, 1996 to September 27, 2004, including the ICETEL subunit attached to the UEN of International Services and the UEN of Project Development and Execution. During that period, Mr. [Nombre01 063] was a coworker of Mr. [Nombre01 128], who later left his job at ICE and began working at the company [Nombre 091] Costa Rica, the local subsidiary of the corporation [Nombre01 091].

204) Having been previously informed that [Nombre01 063] knew the Head of the PUSC caucus, the accused [Nombre01 018], Mr. [Nombre02 128] (at that time Commercial Director of client accounts at [Nombre01 091]) made a telephone call to [Nombre01 063] during 1999 to ask him to facilitate a meeting between them. At that time, [Nombre01 091] was seeking to establish communication with important actors in national political affairs, including deputy heads of caucuses in the Legislative Assembly, in order to present [Nombre01 091]'s complaint against the direct purchase contract "ICE-ERICSSON" for the acquisition of 83,000 cellular lines, considering that ICE was avoiding competitiveness among suppliers and technological improvements in mobile telephony.

205) As a result of [Nombre01 063]'s intervention, an initial meeting took place between the accused [Nombre01 018] and [Nombre01 128] at the end of 1999, in which the latter presented the public complaint against the aforementioned project.

206) Subsequently, in the year 2000, [Nombre01 091] continued with another public complaint campaign against ICE's reluctance to allow the development of cellular telephony through GSM technology, and with the purpose that this company could enter that field through public bidding. Therefore, following the same dynamic as before, starting in March and April of that year, [Nombre01 128] facilitated, through [Nombre01 063], new communication with the accused [Nombre01 018], in consideration of his status as deputy and head of the PUSC caucus, which was the majority bloc during that legislative period, and his prominent role in the discussion of telecommunications issues.

207) On an unspecified date but approximately during the first months of the year 2000, at the initiative of representatives of the company [Nombre01 091], the accused [Nombre01 018], on account of his office, met with [Nombre01 128] on several occasions, occasionally with [Nombre02 063] participating, in which the employee of [Nombre01 091] raised the convenience of ICE opening up to open bidding regarding the acquisition of cellular telephony and the benefits of GSM technology. He commented on the complaint filed by [Nombre01 091] before the Contraloría General de la República, as well as the need for it to receive real attention; a presentation made with the aim of seeking mechanisms to facilitate its success in the different political and administrative forums where the issue was discussed. These meetings took place, for example, at the Legislative Assembly, in nearby cafes, or at the Hotel San José Palacio.

208) Without being able to establish the exact date, but between the months of February and July of the year 2000, the defendant [Nombre01 018], after several meetings with [Nombre01 128], requested a meeting be arranged with his superiors, the accused [Nombre01 041] and the sentenced person [Nombre01 078].

209) It was thus that on August 17, 2000, the defendant [Nombre01 018] and [Nombre02 063] held a meeting with the accused [Nombre01 041] at Café [...], in which they continued addressing the issue of ICE's lack of openness to public bidding in the matter of cellular telephony. In one of these meetings, the defendant [Nombre01 041] and the sentenced person [Nombre01 078] offered the defendant [Nombre01 018], in consideration of his office, the delivery of a gift consisting of money if openness to public bidding at ICE was achieved, equivalent to 0.5% of the contract obtained.

210) By virtue of the foregoing, the accused [Nombre01 018] expressed his consent to the offer of the gift and decided to share it with [Nombre01 063], for having established the contact with the corruptors.

211) As had been agreed, once the award of the abbreviated public bid was achieved in favor of [Nombre01 060], the accused [Nombre01 041], by mutual agreement with the sentenced person [Nombre01 078], began the fractional delivery of the gift that had been promised to the co-defendant [Nombre01 018] in consideration of his office.

212) To do this, they used the payment method employed with other of the accused ICE officials, channeling the funds through the accused [Nombre01 028] and his company [Nombre 058].

213) In this way, on December 10, 2001, the accused [Nombre02 028], according to the plan that he had previously devised with the sentenced person [Nombre01 078] and the accused [Nombre01 041], using the money previously transferred by the company [Nombre 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058]. with Cuscatlán International Bank and on December 10, 2001, acquired, with that sum, a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the instruments into account No. [Valor 060] in the name of BSJ International Bank with Banco San José.

214) On January 15, 2002, the accused [Nombre01 018], while still serving in the office of deputy, accepted the gift presented to him in consideration of his office by receiving at BAC San José the three aforementioned certificates, which totaled thirty thousand dollars ($30,000). On that same date, he began to enjoy the illicit money received; to do so, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] with BAC San José and $161,725 corresponding to the principal and coupon of investment certificate No. 720016762, in order to reach the total of two hundred thousand dollars ($200,000) with BAC International Bank, an amount with which he acquired, in his name, certificate No. 720096897 from the same banking entity in the Bahamas.

215) Likewise, with the funds indicated in the preceding fact, the accused [Nombre01 028] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he had delivered to [Nombre02 063]. Once in his possession, [Nombre01 063] endorsed the certificates with their respective interest coupons and deposited them into account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares.

216) On January 10, 2002, the defendant [Nombre01 041] continued the delivery of the illicit gift in favor of the accused [Nombre01 018], following what was agreed regarding the distribution of the funds with the accused [Nombre02 028]. In this manner, he applied a debit to the account of [Nombre 058]. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Nombre01 028] to [Nombre 018], who accepted them on February 11 of that same year, their maturity date, immediately endorsed them, and deposited them into his account No. [Valor 047] with BAC San José, along with the four interest coupons totaling $129.16.

217) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002 and issued to bearer, were delivered between January 9 and February 11, 2002, to [Nombre02 063], who, upon their maturity between February 11 and 13, 2002, endorsed them and deposited them into his Scotiabank, S.A. account No. [Valor 061], with their respective interest coupons amounting to $64.58.

218) Without specifying a date but at the end of 2002, after the accused [Nombre01 018] accepted the gift delivered to him in consideration of his office as deputy, without the total delivery thereof having been made and without there having been a prior collaboration agreement, he devises a procedure to avoid being directly linked to the crime and to divert the controls of the national banking system. To this end, he asked the accused [Nombre01 063] for an account number to partially receive the gift, and [Nombre01 063] provided him with bank account number No. [Valor 059] with Banco Internacional de Costa Rica (BICSA) at the Miami Agency, information that [Nombre01 018] transmitted to [Nombre 041], who in turn referred it to the defendant [Nombre 028].

219) Thus, on January 16, 2003, the accused [Nombre02 028], through his company [Nombre 058], ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059] of [Nombre 063], but intended for [Nombre01 018], by applying a decrement to the demand investment No. Identificacion21 for the cited sum.

220) With the crediting of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, [Nombre02 063] acquired from BICSA bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus interest coupons for $74.44, for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and maturing on February 28, 2003. Subsequently, [Nombre01 063], after endorsement, delivered them to the accused [Nombre01 018].

221) Once this part of the gift was accepted through the intermediation of [Nombre01 063], the co-defendant [Nombre02 018], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Valor 047] with BAC San José; he canceled eight thousand dollars ($8,000) in payment of his credit card [Valor 050] from BAC San José and kept the sum of nine thousand nine hundred dollars ($9,900) in cash.

222) To complete the delivery to the accused [Nombre02 018] of the fifty-five thousand dollars ($55,000) received in his account, [Nombre02 063], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Nombre01 018] No. [Valor 047] with BAC San José, on October 28 of that same year.

223) In this way, with the intervention of [Nombre01 063], the defendant [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment for having accepted the gift delivered by the employees of [Nombre01 091].

224) On an unspecified date but approximately at the beginning of 2003, the accused [Nombre01 028] continued with the delivery of the remainder of the gift originating from [Nombre01 060] via [Nombre 058]., in favor of the defendant [Nombre02 018]. The latter, for the purpose of evading banking controls and concealing the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; thus, [Nombre01 018], covering up the illicit origin of the funds and the reason for their receipt, asked [Nombre01 158], a trusted friend, to lend him a bank account outside Costa Rica, claiming he needed it because money from the sale of a property would be coming in and he wished to keep it in an account outside the country. Thus, [Nombre01 158] provided him with the bank account registered in the name of his company [Nombre 215], No. [Valor 041] with BAC Panamá.

225) On April 2, 2003, the defendant [Name02 028], by means of a note, requested the application of a debit to account No. [Value 012] of [Name 058] at Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was certificate No. Identification22 for fifty thousand dollars ($50,000) with a 33-day term. This instrument was delivered to [Name01 018] who, Name11 with the purpose of avoiding being discovered in his criminal activity, on May 5, 2003, gave it to [Name01 158] so that he would deposit it in the account of [Name02 215]. In turn, [Name01 158] entrusted [Name01 225], a trusted employee, to carry out the corresponding procedure; in this way, [Name01 225] liquidated that certificate together with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution, he acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian company [Name01 215]., which was deposited in account No. [Value 041] of BAC International Bank Panamá on May 6; thereby [Name01 018] managed to illicitly increase his assets with the money originating from [Name01 091], via [Name 058].

226) The defendant [Name01 018] informed the co-defendant [Name02 028] of the account number in the name of [Name01 215] where subsequent deliveries were to be sent. Name02 on July 17, 2003, the accused [Name01 028], as legal representative of [Name01 058]., continued with the delivery of the illicit gift for the benefit of [Name01 018]; to do so, he again ordered the banking institution to apply a debit to his company's account and to transfer, to the order of [Name01 215], to account No. [Value 041] at BAC Panamá, the sum of fifty-five thousand dollars ($55,000).

227) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Name01 215]., without specifying a date, but shortly before August 11, 2003, the accused [Name01 018] asked [Name01 158] for help in the purchase of a vehicle for his daughter [Name02 243]. [Name02 158] contacted the sales manager of Purdy Motor Agency, with whom he coordinated the purchase of a Toyota RAV 4 vehicle and gave her the telephone number of the accused [Name01 018] so they could arrange the purchase.

228) In order to pay for the vehicle, the accused [Name01 018] asked [Name01 158] for a check for its value. Name02 [Name01 158] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from checking account No. [Value 041] of his represented company [Name 215] at BAC International Bank Panamá, in favor of Banco San José, and entrusted [Name01 225] to use it to acquire a cashier's check in the name of Purdy Motor for the indicated sum. On August 11, 2003, [Name01 018] formalized the transfer of the RAV 4 vehicle, Toyota, red, four doors, license plate [Value 052], in the name of [Name01 243], to whom it was given as a gift.

229) Continuing with the disposition of the money originating from [Name01 060], the accused [Name 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Name01 215] to combine it with money from another source and acquire a dwelling in the [...].

230) On October 27, 2003, the accused [Name01 028] ordered that from the account of [Name 058] at Banco Cuscatlán, a debit be applied for one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) and that a transfer be made to account No. [Value 041] of [Name 215]. at BAC International Bank Panamá for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the accused [Name02 018]; this deposit was made effective on October 29, 2003.

240) Finally, on January 7, 2004, the defendant [Name 028], as legal representative of [Name 058]., ordered the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000) and to send a transfer for one hundred thousand dollars ($100,000) from that sum to the account of [Name 215]., No. [Value 041], at BAC International Bank Panamá.

241) According to the foregoing, the defendant [Name01 028], through his company [Name 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Value 012] at Cuscatlán International Bank in favor of [Name02 215]., to account No. [Value 041] at BAC International Bank in Panama, to be delivered to the accused [Name 018]; this effective income was reduced by $21.00 due to the application of bank fees, meaning that four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited. Additionally, he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93) in investment certificates from Banco Cuscatlán; that is, [Name02 018] admitted, through this channel, five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). Furthermore, through [Name01 063], he also admitted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift on account of his office for a total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82).

242) On the other hand, for having made the initial contact between himself and the employees of the company [Name01 091], the accused [Name01 018] voluntarily decided to give money to [Name01 063], as explained below.

243) On November 11, 2003, [Name02 018] asked [Name01 158] to use the money deposited by the company [Name 058] into the account of his represented company [Name 215]. to acquire a cashier's check in favor of [Name02 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Name01 158] issued check No. 008 for that sum and entrusted the procedure to [Name02 225], who purchased cashier's check No. 75741-8 from BAC San José bank in favor of [Name 063], for fifty-six thousand seven hundred forty-six dollars ($56,746).

244) After receiving the negotiable instrument from [Name01 158], [Name 018] gave it to [Name 063], who, on November 19, 2003, deposited it in account No. [Value 051] at Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares.

245) On February 4, 2004, the accused [Name01 018] again asked [Name01 158] to use the funds originating from the company [Name01 058]., deposited in the account of [Name 215]. at BAC International Bank in Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Name02 063]. Therefore, [Name01 158] issued check No. 010, with which [Name01 225], who was delegated the procedure, purchased cashier's check No. 75992-0 from BAC San José for the indicated sum. After receiving it from [Name02 158], [Name02 018] gave the said check to [Name01 063], who cashed it on February 10, 2004.

246) Finally, [Name01 018] asked [Name01 028] to transfer the sum of fifty thousand dollars to [Name02 063] from the money originating from [Name01 091]. Thus, on April 2, 2003, [Name01 028] applied a debit from account No. [Value 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Name01 028] gave it to [Name 063], who liquidated it together with the accumulated interest of $121.45 and deposited the entirety of the money into account No. [Value 048] of Sama Fondos de Inversión S.A., to be credited to his account No. [Value 051] with that institution. [Name01 063] supplemented it with other money of unknown origin and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003.

247) Via [Name 215], [Name 063] received, from the money admitted by [Name 018], the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Name 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21)." (F. 15,477 to f. 15,487 front, the highlighting is not from the original). The trial court, when analyzing the accusation, affirmed that it did not describe an improper bribery (cohecho impropio), given that although reference was made to the offer of a gift and the acceptance of said offer by [Name 018], another of the components of that criminal type was not mentioned, namely, the act proper to his functions that was expected of [Name 018]. The lower court indicated: "Therefore, this court considers that regardless of whether the conduct described by the Prosecutor's Office in its conclusions was proven or not (a remunerative promise for attending to the public), the truth is that the accusation does not contain such a description and, in application of the principle of correlation between accusation and sentence, that possibility could not even be assessed. The Public Prosecutor's Office states that [Name01 018] had the duty to receive the public without charging them, as political control corresponds to the Legislative Assembly; however, this is not a matter of evidence, but rather pertains to safeguarding the right of defense because no circumstance is indicated in the accusation, nor is it mentioned that there was a promise or that the gift was given to him for performing an act such as described (one that was within his functions). And although logically, if the basic criminal type does not apply, neither does the aggravating factor, in any case the contracting of the 400,000 cellular lines does not concern the administration where [Name01 018] served (i.e., the Legislative Assembly). For this reason, rather, it is considered that the accusatory description corresponds to the crime of Illicit Enrichment (Enriquecimiento ilícito), but before assessing the reasons for determining that typical adjustment, the issue of the alleged tacit repeal of the criminal type will be addressed ..." (F. 16,055 and 16,056 front). This conclusion, which was not subject to challenge by the Public Prosecutor's Office, is correct, since indeed, the accusation did not contemplate what the act proper to his functions was that the corrupters expected of [Name01 018], a typical element that is of extreme importance, as it allows differentiating improper bribery (cohecho impropio) from other figures, e.g., from proper bribery (cohecho propio), or from some even more complex ones that may become its complement, as additional purposes are sought (as happens, e.g., with the crime of aggravated corruption through bribery, whether proper or improper). Therefore, although certainly, the accusation affirmed that [Name01 018] accepted the promise of remuneration, and even though the court deemed its content to be proven, the truth is that said matter is irrelevant, since, as is well recognized in the appealed sentence, it is impossible, or at least it is without violating the principle of correlation between accusation and sentence, to deem it accredited that [Name01 018] accepted that promise of remuneration in exchange for "receiving the public," as the Public Prosecutor's Office indicated, to remedy the error contained in its accusation. Having clarified this, it is pertinent to recall that the criminal type of illicit enrichment (enriquecimiento ilícito) applicable in this case contemplated the admission of gifts that were presented or offered to the public official in consideration of his office, while he remains in the exercise of the position. As explained in the sixth whereas clause, to which the appellant must refer, it is a criminal type that provides for two distinct scenarios, namely, i) the admission of gifts presented and ii) the admission of gifts offered. In the first hypothesis, the presentation and receipt of the advantage, and in the second, the offering and admission thereof, must take place while the public official remains in the position in consideration of which the remuneration is presented or offered. This is a difference that in matters such as the present one is not trivial, since in the second scenario, the crime is configured regardless of whether the active subject receives the economic remuneration, whereby this receipt constitutes a subsequent unpunishable act, which can take place after the public official has ceased to perform the position. That said, it is important to emphasize that the trial court deemed it proven that [Name01 018] was offered a gift and that he accepted it (f. 16,064 front, last paragraph, volume XXXIII). That is, at least in principle, the second of the aforementioned scenarios would be configured. Against this, Mr. Villalobos Umaña claims that the cited offer cannot be deemed proven. For this Chamber, he is correct. Let us see. To determine the responsibility of [Name01 018] concerning illicit enrichment (enriquecimiento ilícito), the court weighed a series of circumstances described from folio 15,997 front to 16,054 front of volume XXXIII, which can be schematized as follows: i) [Name01 018] was a deputy in the Legislative Assembly from May 1, 1998, to April 30, 2002, and then, from May 8, 2002, to April 21, 2004, he was the executive president of the Caja Costarricense del Seguro Social; ii) as a deputy, he was part of the special mixed commission that was formed after the protests over the so-called "Combo del ICE." The intent was for said commission to issue a report and until it did so, no legislative bill related to the ICE would be processed. The foregoing is of interest, says the court, because in the management of [Name01 091], a document was seized titled "New Telecommunications Law (Combo ICE), impact on [Name01 091] and actions to follow," which reveals the importance for the company of any action that could modify or affect commercial expectations or contracts with the said institution (f. 15,999 front); iii) [Name01 063] worked at the ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Name01 091] and [Name01 018]. The representatives of [Name01 091] approached the latter, thanks to the mediation of [Name01 063], to present their concerns about the direct contracts awarded by the ICE and which, according to them, excluded them from the market. The evidence accounts for this (expert report No. 428-DEF-443-05/05, evidence No. 630, PC06, file "Libro blanco," and the declaration of [Name01 128]); iv) it was ruled out, based on the testimonial evidence presented, that [Name01 018] had been a consultant for the company [Name 091], as well as that he had had any commercial or labor relationship with [Name01 058] that justified the receipt of the monies delivered to him. Furthermore, [Name01 158] declared that this defendant told him he had earned some money with [Name01 091] easily, as he had done nothing, and, according to witness [Name01 116], [Name 041] spontaneously told her that he had paid bribes to public officials, among them [Name01 018]. The same applies to [Name01 142], who pointed out that [Name01 041] acknowledged having paid gifts to public officials in the media. Finally, the company [Name 091] had within its hiring policies a prohibition against hiring public officials as consultants. v) Based on the declaration of [Name 128], it was established that [Name 018] was informed about the issue of mobile telephony and [Name01 091]'s interest in eliminating direct contracting without bidding. [Name01 091] had carried out two public and denunciation campaigns: one to oppose the contracting of lines to Ericsson in 1999 and another in 2000, regarding the GSM technology, with contact having existed with [Name01 018] since 1999. There were several meetings with the then-deputy, and on one occasion, [Name01 018] asked [Name01 128] to speak with his superiors, a meeting that, according to the witness, did take place. vi) The court considered that from what [Name01 128] said, it can be inferred that [Name01 018] was contacted to discuss the elimination of direct contracts and the opening of bidding, which leads to the issue of the 400,000 cellular lines. This confirms the version of [Name02 064], in the sense that the offer of the gift had to do with the issue of mobile exchanges and GSM technology, and in that regard, there is indiciary evidence that allows us to glimpse that a remunerative promise was also made to [Name01 018] under modal and temporal circumstances similar to the one made to [Name01 064], except that while the latter was called by [Name01 078], it was [Name02 018] who asked to speak with the superiors of [Name01 128]. Moreover, the payments were also made through the same channels as to other defendants. vii) There is documentation showing that on August 17, 2000, at the [...] café, [Name01 041] met with [Name 018] and [Name 063]; viii) [Name01 144], a messenger for the company [Name01 091], said he had delivered envelopes sent by [Name01 041] to the accused [Name01 022], [Name 001], [Name 018], and [Name01 028], at their homes and offices. The secretary of [Name01 041] said that envelopes were sent to the ICE and to the defendants and that she knew their content; however, "...this does not exclude that [Name01 144] carried envelopes that were not the ones she knew about; envelopes that also had different characteristics from those described as known to her person." (F. 16,011 front). ix) Name02 just as in the year 2000 the public campaign of [Name 091] in favor of public bidding and migration to GSM technology began, also between July 2000 and December of that year, representatives of [Name01 091] met with deputies and other figures from the political sphere. It is then that the meetings with [Name01 018], [Name01 001], and [Name01 064] occurred, all of whom ultimately received money originating from [Name01 060]. x) Finally, the lower court weighed abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [Name01 018] originated from [Name01 060]. Having analyzed this indiciary evidence and considering, of course, the hypothetical suppression that must be carried out of the testimony of [Name01 064], the undersigned conclude that it is not possible to deem it proven that on August 17, 2000, at the [...] Café, [Name 041] extended to [Name01 018] a promise or offer of economic remuneration. This Chamber does not doubt that the cited meeting took place; however, this is not enough to prove the offer, especially considering that such meetings were not unusual and that [Name01 128] himself acknowledged that part of [Name01 091]'s strategy was to meet with people from different sectors, including deputies. Likewise, the fact that [Name01 018] asked [Name01 128] to speak with his superior ([Name01 041]) is an amphibological indicium, which even allows us to think of other hypotheses, for example, that it was this public official who, abusing his status as a deputy, forced or induced another to give or promise the financial benefit he later received. Regarding the envelopes mentioned by the lower court, the same reflection made in previous whereas clauses applies. Their content is an unknown and, in that regard, it is speculation by the court to maintain that they contained documentation related to the crime. Name11 along these lines, no one doubts that [Name01 018] received money from [Name01 060] in the same way that other defendants in this case did; however, extracting from this, with a degree of certainty and not probability, that on the mentioned 17th day a promise or offer of economic remuneration was conceived is impossible, especially considering that the core evidence to deem the cited promise and its scope as proven was the declaration of the cooperating defendant [Name01 064], and this was considered illegal evidence. Without this account, as with the other defendants, other possibilities cannot be ruled out, as already indicated: that the monies were demanded by the public officials themselves, among whom is [Name02 018]; that they were economic remunerations received without a prior promise, for an act performed or omitted in the capacity of a public official; or also, that the promise had a different content from that contemplated in the accusation. The range of possibilities, as can be seen, is extensive. The issue here is not the receipt of funds of irregular origin, a fact that was amply demonstrated, but rather establishing that before that receipt, specifically, on August 17, 2000, a promise or offer of economic remuneration was made and that [Name01 018] accepted it. Not only is it impossible to deem it proven that on the cited date a gift was promised to [Name01 018], but even less so that it was in exchange for "attending to the public" (an act proper to his functions which, according to what the Public Prosecutor's Office said in its conclusions, [Name01 041] expected of [Name 018], f. 16,055 front). Now, despite the error in the assessment of the evidence, it is unnecessary to annul the decision and order a new trial, since, as was explained when examining the situation of other defendants, the possibility of incorporating additional elements of evidence to those already existing is not foreseen, and in that regard, there is also no impediment to proceed at this procedural stage to directly resolve what corresponds, considering both the factual framework charged and the facts that have been deemed proven and that remain unaffected after excluding the offer of a gift. Indeed, once the promise or offer is suppressed, what is necessary to deem the crime of illicit enrichment (enriquecimiento ilícito) as configured subsists, and therefore, to confirm the first instance sentence insofar as it declared so. The criminal type of enrichment has two modalities, as already stated: the admission of a gift presented and the admission of a gift offered. While it cannot be assured that [Name01 018] admitted a gift that was offered to him, it can be affirmed—since Name02 it was contemplated both in the accusation and in the statement of proven facts—that this defendant admitted several economic remunerations that were presented to him in consideration of his office and while he held the position of deputy. It is now appropriate to examine each one of those remunerations. First delivery: In proven facts No. 213 and 214, it is affirmed that on December 10, 2001, the accused [Name01 028], from the money previously transferred by the company [Name 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Name 058] at Cuscatlán International Bank and, on December 10, 2001, acquired with that sum a series of bearer investment certificates at Banco Cuscatlán de Costa Rica, among which were those with No. Identification18, No. Identification19, and No. Identification20, each for the sum of ten thousand dollars ($10,000), and he ordered the financial entity for the instruments to be deposited in account No. [Value 060] in the name of BSJ International Bank at Banco San José. Likewise, that on January 15, 2002, the accused [Name02 018], while still in the exercise of the position of deputy, admitted that gift that was presented to him in consideration of his office, by receiving at BAC San José the three aforementioned certificates, which totaled thirty thousand dollars ($30,000). For the undersigned, these facts clearly configure the crime of illicit enrichment (enriquecimiento ilícito), since the presentation of the gift occurred on account of the position that [Name 018] held in the Legislative Assembly, and furthermore, this presentation, as well as the admission of the economic advantage, occurred while he was serving as a deputy. Second delivery: [Name01 018] was a deputy until April 30, 2002 (f. 15,998 front). In proven fact number 216, it is indicated that on January 10, 2002, [Name02 028] applied a debit to the account of [Name 058] No. [Value 012] at Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica, for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Name01 028] to [Name 018], who admitted them on February 11 of that same year—their maturity date—and immediately endorsed them and deposited them in his account No. [Value 047] at BAC San José, together with the four interest coupons for a total of $129.16. This also constitutes a crime of illicit enrichment (enriquecimiento ilícito), since a gift was admitted on account of the office, during the exercise thereof. Third and successive deliveries: As extracted from the proven facts, the third through seventh deliveries of gifts to [Name01 018] occurred after he had left the position of deputy, whereby his actions (consisting of accepting those economic remunerations) are atypical. It is important to indicate that from the criminal type under discussion, and in particular, from the scenario whereby a gift presented is admitted, it is inferred that the admission must take place while the public official exercises the position in consideration of which the economic remuneration is presented to him, in this particular case, the position of deputy, it not being sufficient that he merely holds the status of a public official. For this reason, it is irrelevant that from May 8, 2002, to April 21, 2004, [Name 018] was the executive president of the C.Name82. Consequences of the foregoing decision. For this Chamber, the aforementioned decision has no impact on the legal classification attributed to the facts that have been deemed proven, since once the reference to the promise or offer of a gift is hypothetically suppressed, and consequently, the existence of a single economic remuneration that was offered and paid in installments, the necessary elements to deem at least the crime of illicit enrichment (enriquecimiento ilícito) for which the trial court convicted [Name01 018] remain unaffected, namely, that this defendant admitted the gifts that were presented to him due to his status as a deputy and, in particular, as president of the legislative commission that would address the telecommunications issue, all of which occurred while he was performing the said position. As we saw, it was deemed proven that on January 15 and February 11, 2002, he accepted several bearer investment certificates. Specifically, on January 15, 2002, three certificates for ten thousand dollars each (proven fact No. 214) and on February 11, 2002, four certificates, also for an amount of $10,000 each (proven fact No. 216). It is important to note that although for this court, not one, but two illicit enrichments (enriquecimientos ilícitos) in material concurrence are configured, the lower court considered that a single crime was configured, a decision that was not challenged by the prosecuting authority and, in that regard, cannot be modified to the detriment of the defendant. With regard to the remaining gifts transferred to [Name01 018], the situation is different. As we already explained, because they were presented during the year 2003 and early 2004, understandably, after [Name01 018] left the position of deputy, their receipt is atypical. We refer to the economic remunerations described in proven facts numbers 219) to 241) and which, in brief, relate to what [Name01 018] received through the account of [Name01 063] at Banco Internacional de Costa Rica in Miami ($55,584.44, cf. proven facts No. 219 to No. 223); an investment certificate for $50,000 that was delivered to [Name01 018] by [Name01 028] and which, according to the proven facts, he asked [Name01 158] to deposit in the account of [Name01 215] (fact No. 225); and finally, the monies that entered to him through the bank account of the said company—[Name 215]—in Panama (proven facts No. 224 to 241). This situation, which has no incidence as far as the legal classification is concerned, since as indicated supra, the trial court convicted for a single crime of illicit enrichment (enriquecimiento ilícito) that was configured from the moment [Name01 018] accepted the gifts presented to him while he was still a deputy, does have an incidence regarding the penalty imposed, since the sentence applied the maximum limit provided for in the criminal type (two years of imprisonment), after considering, among other aspects, the total amount received by [Name01 018] and not only what was admitted while he held the position of deputy (f. 16,066 front, volume XXXIII). Added to this, as the appellant denounces in the twelfth ground, the lower court also imposed the penalty of disqualification (inhabilitación) without explaining the reasons for that decision (which is confirmed by a simple reading of the aforementioned folio).

In summary and based on the foregoing, the trial court's judgment remains unaltered insofar as it declared [Name01 018] criminally responsible for a single offense of illicit enrichment, while clarifying, however, that this conviction only concerns the financial payments admitted by this accused on January 15 and February 11, both in 2002 (proven facts No. 214 and 216). The judgment is annulled insofar as it imposed a penalty of two years' imprisonment and a 12-year disqualification from obtaining and holding public jobs, positions, or commissions on [Name01 018]. The case is remanded to the trial court so that, with a new panel and proper reasoning, it may proceed to set the quantum of the corresponding sanction.

XXXI.- Eighth ground. Erroneous assessment of the evidence in violation of the rules of sound criticism, infringing Articles 142, 184, and 369(d) of the CPP. In this section, the appellant states: “… Recital X-D refers to what it calls the second delivery of the gift to [Name01 018]. The majority vote incorporates into its reasoning the thesis that [Name01 018] received six investment certificates from [Name01 091] through delivery made by the company [Name 058]. First, it must be noted the error incurred by the Judges when indicating that it involves six certificates, as they refer to Folio 1579, when in reality there are 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 [Name 058] from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. At Folio 1580, the Judges state that those securities were delivered by the accused [Name01 028] to the defendant [Name01 018] and that the latter admitted them from the former on February 11, their maturity date, and immediately endorsed and deposited them into his account at BAC San José. The Judges refer to evidence 417, which only demonstrates that [Name01 018] endorsed the securities and deposited them into his account, but in no way proves that [Name01 028] delivered them to him nor the date on which such an event occurs, and this makes the reasoning null as irrational and contrary to the rules of sound criticism. These are bearer securities, which are transferred by simple delivery and whose transfer occurs without the need for endorsement on the back of the document, according to Article 712 of the Commercial Code. This is what is called simple tradition and therefore it cannot be established who delivered the security to its possessor, and that is the sense of its designation as BEARER. Even for this reason, the security is non-replaceable in case of loss, as regulated by numeral 719 of the same Code, since the legitimate possessor is not recorded. If [Name01 028] acquired the securities issued on January 10, 2002, and there are no endorsements on the back of the documents—as cannot be recorded—and these appear deposited in the account of [Name02 018], the only thing this demonstrates is that the securities were delivered by someone through simple tradition to [Name01 018], but in no way that this person was [Name 028], as the Judges adventurously state...” (F. 172,758 to 172,759 front). In the present ground of the appeal, it is affirmed that a month elapsed between the moment [Name01 028] withdrew the securities and the moment they were deposited into [Name01 018]'s account, making it possible that the former delivered them to any other person, who in turn delivered them to another, and so on, step by step, until they reached [Name01 018], without it being possible to presume that [Name01 028] gave them to [Name01 018]. The judges, in support of their position, cite Article 717 of the Commercial Code, which was repealed since 1990, by Law No. 7201. In any case, this rule stated that the security belongs to whoever holds it in their possession, which no one has questioned. Likewise, that good faith and just title are presumed, as corresponds in application of the principle governing movable property. But from this rule it is not derived that the initial acquirer must be considered the one who delivered the security to the depositor. He adds that the judges ignore the basic rules of commercial law when they state that "... the absence of a chain of transferors determines that the security was transferred from the one who originated it to the one who appears as its holder before the teller or respective official of the banking entity, so in this specific case, it is inferred that it passed from [Name01 028] to [Name01 018].” According to the judges, 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. The foregoing is only [Name02] in nominative securities, which are transferred by endorsement, and not in bearer securities, such as those examined in this case. He adds that in bearer securities, it is characteristic for the chain of transferors to be absent, hence what the court finds lacking is what [Name11] occurs in this matter, meaning, there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced that [Name01 028] was the one who delivered the documents to [Name 018]. He adds that another error of the court is pointing out that since the securities have a legend on the back stating that they can only be deposited into the account of [Name01 018], this proves that [Name01 028] delivered them. For the appellant, one thing has nothing to do with the other. [Name01 018] received the securities from an undetermined person and endorsed the documents with that legend to deposit them into his account, without this being relatable to [Name01 028]. According to the majority vote, since it was deposited into the same account as other transfers, this suggests that [Name01 028] delivered them. However, this is nonsense, which would lead to maintaining that every sum that reached that account originates from [Name01 028]. In synthesis, the conclusion that it was [Name01 028] who delivered the securities to [Name01 018] is a biased conjecture, which despises the rules of commercial law and correct human understanding. Given that such a situation cannot be verified, the acquisition of the securities must be considered legitimate and legally correct and, consequently, [Name01 018]'s conduct would be unpunishable.

XXXII.- The ground cannot prosper: First, it is important to note that the offense is deemed configured from the moment the defendant accepted the first three certificates (No. [Identificacion18], [Identificacion19], and [Identificacion20]), such that the appellant's arguments referring to the second receipt of certificates in no way modifies what has been resolved in the judgment. Second, although on folio 16,020 front six certificates are referenced, it is explained with absolute clarity that four of them are those related to [Name01 018] (f. 16,021 front), so the error alleged in the appeal is not present. Finally, to refute the court's conclusion that these four certificates were delivered to [Name01 018] by [Name01 028], the appellant disregards a series of elements that are analyzed throughout the decision in an integral and harmonious manner and that allow the cited circumstance to be considered reasonably proven, namely: i) the four certificates were endorsed by [Name01 018], making it undeniable that he was their recipient; ii) [Name01 018] disposed of the funds, by depositing them into his account and then merging them with the first three certificates he received from [Name01 058]; iii) these four certificates have the same characteristics as the three previously received, namely, they originate from Banco Cuscatlán, are bearer, have a one-month-and-one-day maturity, and [Name01 018], in a similar manner, cashed and deposited them into his Banco San José account on February 11, 2002; iv) these certificates originate from a $60,000.00 deposit investment ordered by [Name 028] that gave rise to a group of 6 certificates, 4 delivered to [Name02 018] and 2 to [Name 063] (in fact, the two cashed by [Name01 063] are the one preceding and the one closing the numerical series, namely, Nos. 3851 and 3856), which is not a product of chance (f. 16,021 to 16,024 front). For this Chamber, from the preceding inferences (considered integrally) it follows that the certificates were also a gift delivered to [Name01 018] and admitted by him while he held the position of deputy. The defense elaborates an entire explanation to try to break the link connecting the certificates with [Name01 018], affirming that, being bearer, it is impossible to determine that it was [Name01 028] and not a third party who delivered them to the defendant. However, this is a convoluted explanation based on a fractioned and biased analysis of the evidence, which in no way conforms to the most elementary rules of common experience. For, once again, these are not certificates whose funds have an unknown origin. Quite the contrary, they are certificates with funds from [Name02 060], processed by [Name 058], under the same conditions as other gifts delivered in this matter, and even under the same conditions as those certificates that [Name 018] had previously received; certificates that are endorsed and disposed of by him, depositing them into his account to later join them with the funds he had received before, also from [Name01 060], via [Name 058]. This is so [Name02] that the defense itself admits this point, when attempting to justify the receipt of the funds with a supposed consultancy whose existence was reasonably ruled out. Added to this, it is not coincidental that the payments were made in this manner, since undoubtedly the defendants, among them [Name01 018], are the main ones interested in trying to distance themselves from the illicit gains. Finally, for the purpose of establishing that those certificates were delivered to [Name01 018] on the occasion of his position, it is not a negligible inference to consider that the other two certificates—out of a series of six—were cashed by [Name02 063], a person whose connection with [Name01 018] is more than demonstrated in the judgment and who was attributed with contacting him with the leaders of [Name01 091]. In sum, only through a biased and fragmentary examination of the evidence, removed from the most elementary rules of common experience, could the defense's thesis be endorsed, in the sense that since the certificates are bearer, it is impossible to establish a link between [Name01 058] and [Name01 018]. It is important to reiterate that although this defendant, after being a deputy in the period from May 1, 1998, to April 30, 2002, held the executive presidency of the Caja Costarricense de Seguro Social (specifically, from May 8, 2002, to April 21, 2004), the acceptance of sums coming from [Name01 060] while he was in this latter position cannot be considered constitutive of the offense of illicit enrichment investigated and judged here, since what the criminal definition contemplates is that the gift be received while holding the position that motivated its presentation—in this case, that of deputy—and not any other. For greater abundance, note that the accusation establishes a direct relationship between the gift and [Name01 018]'s condition as a deputy, not [Name02] with his condition as executive president of the mentioned autonomous institution, which would also allow discarding any possibility of including within the offense of illicit enrichment judged here the gifts he admitted while holding this latter position. Based on all the foregoing, the objection is rejected.

XXXIII.- Ninth ground. An abrogated criminal definition was applied, in disrespect of Article 369(i) of the CPP. The appellant affirms: “… This representation maintains that Article 346(3) of the Penal Code was tacitly abrogated by Article 32 of Law 6872 of June 17, 1983, called the Law on Illicit Enrichment of Public Servants. Let us recall that the Penal Code entered into force in 1971, in accordance with its Article 406, so, by virtue of the principles of legal interpretation, when dealing with the same conduct, the later law abrogates the earlier one. Numeral 346 applied in this case sanctions those who accept gifts in consideration of their office with a prison penalty of six months to two years. Article 26 of Law 6872 established the offense of illicit enrichment with a penalty of six months to six years. In principle, it is absurd for two criminal categories with the same name of criminality to exist in two different legal bodies, which reflects that the tacit legislative intent was to render ineffective the categories under 346 of the Penal Code under the title of illicit enrichment and substitute them with those of Article 26 of that law with the same name. But if it is interpreted that criminal definitions with the same [Name01] can exist in two different laws, it is clear that the legislator had two things in mind: to aggravate the penalty, increasing the maximum from two to six years, and creating the category of sanction when the actions are carried out within the year following cessation from office, which was not regulated in Article 346. That, in principle, justifies the regulatory change, but there is even more. Subsections a) and c) of Article 26 regulate conduct such as the acquisition of goods of any kind or nature, within which is evidently the bearer security or cash money or mere enrichment per se, beyond their ordinary remuneration, which is a sort of catch-all or sponge concept that absorbs any receipt of money or goods not derived from their employment relationship with the State. The receipt of gifts is a form of enrichment or acquisition of goods, now with a higher maximum penalty and with the incorporation of the sanctioning rule for the year following the cessation of the service relationship. That is why the Court's statement to the effect that those conducts under numeral 26 are totally distinct from those of Article 346, as it erroneously indicates on folio 1617, is not true. In support of our thesis, we must indicate that the Court at no point makes a detailed analysis of the defined conducts to reach its conclusion, beyond listing them and copying them in a nice table, without any explanation, which it transcribes on folios 1619 to 1622. It does not elaborate on reasons why it considers they are different conducts, … Its error is such that it attributes the approval of subsections a) and c) of Article 26 to the Inter-American Convention Against Corruption of 1996, when those texts were approved in 1983, THIRTEEN YEARS BEFORE. Once again, the carelessness and lack of legal knowledge, which are repeated in the majority judgment. The other argument to sustain the validity of subsection 3) of Article 346 of the Penal Code is that, according to them, its numbering was modified by Article 185(a) of Law 7732 of December 17, 1997, which moved it from 344 to 346. That statement is ABSOLUTELY FALSE and again reflects the negligence and carelessness of the Judges. What numeral 185 of Law 7732 does is create two new criminal definitions, under the category of Stock Market Offenses, without making any reference to numeral 346 nor expressly moving its numbering, so no one presumed its validity in said Law 7732. It also maintains that Article 69 of Law 8422 of October 6, 2004, recognizes the validity of Article 346 by abrogating one of its subsections. What the Judges do not say, because it is not convenient for them, is that the Constitutional Chamber, in its Voto 11584-2001 of November 9, 2001, established that some of the subsections of 346 were abrogated since Law 6872 of 1983, as has been stated, but that their express verification is the competence of other courts, understood to be criminal ones. But the Judges disrespect the Chamber's ruling, as many other times, and ignore it entirely; for them, the entire numeral 346 is in force and they do not even stop to reflect on completely omitting the constitutional criterion. The opinion of this defense regarding the existence of this vote is even cited, but it does not merit the slightest comment from the Judges, possibly because it was not convenient for their purposes. The important thing about this abrogation of 1983 is that then the alleged conduct of [Name01 018], which occurs according to the judgment between January 2002 and January 2004, would be regulated no longer by Article 346 of the Penal Code, but by Article 26 of Law 6872. But given that subsections a) and c) of that norm were declared unconstitutional by the Constitutional Chamber through resolution 1707-95 at 3:39 p.m. on March 28, 1995, they would not be applicable to the case and [Name01 018]'s actions would become atypical. It is only as of the entry into force of Article 45 of Law 8422 of October 6, 2004, in force from the 29th of that month, that the increase of wealth in the exercise of office is defined again, which is not applicable to the accused acts because it is a substantive norm in force after those acts, according to Article 11 of the Penal Code…” (F. 172,760 and 172,761 front). Finally, the appeal adds that the court criticized the defense for not citing Ruling No. 205-1995 of the Third Chamber, [Name02] suggesting that what was stated in relation thereto was an invention, when the truth is that the trial court itself mentioned it when explaining that there are subsections of Article 346 of the Penal Code that were abrogated, among them subsection 3), an abrogation that occurred through Law No. 6872, and [Name02] requests that it be so declared by this Chamber.

XXXIV.- The ground is not accepted: The issue in question was also resolved by the Third Chamber, which, in what is relevant, indicated: “The ground is accepted. The former Article 346 of the Penal Code of 1970 (current Article 353 of the Penal Code), conceived the criminal definition of Illicit Enrichment as residual, inasmuch as it could only be applied in the face of the legal impossibility of proving other more serious categories against public officials, as deduced from the letter of the norm, which in what is relevant stated: “Shall be punished with imprisonment from six months to two years, the public official who, without incurring a more severely penalized offense: 1) Accepts any gift or the promise of a gift to exert the influence derived from his position before another official, so that the latter does or refrains from doing something related to his functions;/ 2) Uses for profit for himself or a third party information or data of a confidential nature of which he has become aware by reason of his position;/ 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position; and /4) (ABROGATED by Article 69 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function of October 6, 2004). [Name02] modified the numbering of this article by numeral 185(a), of Law No. 7732 of December 17, 1997, which moved it from 344 to 346)” (The supplied matter does not belong to the original). However, with the entry into force of Law No. 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, a disjunctive arose, concerning whether with the entry into force of Article 26 of the latter normative body, numeral 346 cited above had been eliminated, since Law 6872 was silent on its validity, or if, on the contrary, they are two norms that complement each other, given that ordinal 32 established as part of the provisions for the entry into force of the cited Law, the condition that stated: “… Comes into force upon its publication and abrogates and modifies the legal provisions that oppose it” (The supplied matter does not belong to the original), it being necessary to understand the full validity of Article 346, based on an absence of tacit abrogation, which is inferred from the comparison of the criminal actions described in that criminal definition with those regulated in norm 26 of Law 6872, to determine their non-opposition in regulation and therefore the parallel subsistence in the Costa Rican legal system. Certainly, for purposes of a better understanding, from the following comparative study it is possible to verify the variety of illicit conducts that both criminal definitions describe, without it being possible to infer any opposition between them as the sole circumstance under which the tacit abrogation contained in numeral 32 of Law 6872 can be applied:

In accordance with the table above, it is possible to deduce that with Law 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, in force until the promulgation of Law 8422, of October 29, two thousand four, the offense of Illicit Enrichment contemplated in former numeral 346 of the Penal Code, far from being tacitly abrogated, remained in force, as the offense of Illicit Enrichment conserved the description of criminal conducts that were not included in Article 26 of Law 6872. Note, verbi gratia, that the typical actions contemplated in cited numeral 346 included the admission of gifts presented or offered to the public official by reason of his position (Article 346(3) of the Penal Code); the acceptance and promise of a gift to exert the influence derived from the official's position (Article 346(1) of the Penal Code); and the use for profit for himself or a third party of information or data of a confidential nature obtained by reason of the performance of the public function (Article 346(2) of the Penal Code); while the actions contemplated in numeral 26 of Law 6872, Law on Illicit Enrichment of Public Servants of June 17, 1983, apart from increasing the sanction at its maximum end and presenting the novelty of being applied to subjects whose service relationship had already ceased within the previous year, presented the description of conducts diverse from those contained in Article 346 of the Penal Code, in which the terms promises or presentation of gifts were not used, but rather involved the prosecution of acts in which public officials had inexplicably improved their economic situation (Article 26(b) of Law 6872); consented, facilitated, or intervened in any way in the enrichment of a third party, whether a public official or not (Article 26(ch) of Law 6872); in which the [Name10] [Name11] granted benefits for their exclusive benefit, or for their relatives up to the second degree of consanguinity or affinity, by dictating laws, decrees, agreements, or resolutions (Article 26(d) of Law 6872); among others. In this way, since both norms do not contradict each other, their described criminal actions remained in force, in accordance with the letter of numerals 32 of the same Law 6872 and the subsequent validity of Articles 69 and 70 of Law 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 29, 2004, which upon its entry into force expressly abrogated only subsection 4 of Article 346 cited above (Article 69 of Law 8422) and the Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983 (Article 70 of Law 8422), it being understood that in said abrogation Article 26 of Law 6872 must have been included, which proves that the legislator also recognized their simultaneous validity in our legal system and, therefore, had to decree the abrogation of subsection four of the former Article 346 and of Article 26 of Law 6872 in its entirety. On this last topic, it must be recognized—as the majority vote of judgment 167-2011 did at the time—that this Third Chamber, in vote 205-F-1995, at nine hours, on April seven, nineteen ninety-five, implicitly recognized the validity of subsection 2) of former Article 346 of the Penal Code, when it reclassified in a case brought to its attention the proven acts from extortion to the crime of Illicit Enrichment, despite the fact that Law 6872 had already entered into force at that moment. Likewise, that with the reform to former Article 346 of the Penal Code, introduced in 2004, with Law 8422, subsections 1), 2), and 3) of said norm were neither tacitly nor expressly abrogated, because ordinals 69 and 70 of the mentioned law only expressly abrogated subsection four of that numeral and Law 6872 in its entirety, it being understood from the literalness of both norms that cited subsections 1), 2), and 3) are in force: “Article 69.-Abrogation of subsection 4) of Article 346 of the Penal Code. Subsection 4) of Article 346 of the Penal Code is abrogated. Article 70.-Abrogation of Law No. 6872. The Law on the illicit enrichment of public servants, No. 6872, of June 17, 1983, is abrogated” (The supplied matter belongs to the original).

See, in the same vein, Legal Opinion 018-J-2000, of February seventeenth, two thousand, of the Attorney General's Office of the Republic, in which, regarding the bill for the Law against Corruption and Illicit Enrichment, which was under review by the Permanent Committee on Government and Administration, it was also established: “…16.- Of the crimes: Through Chapter V of the Bill called \"Of the crimes\", a series of criminal offenses are created whose common denominator is the fight against corruption, recreating a wide range of circumstances to which the public official or servant is commonly subjected./ The total repeal of the Law on Illicit Enrichment of Public Servants (No. 6872) is also provided for, which contains a series of criminal offenses similar to those proposed in the bill; but it must be noted that Name11 certain illicit acts that are similar to those intended to be incorporated remain in force within the Criminal Code…” (The emphasis is ours).” On the other hand, it must be pointed out that the scope that the Court of Appeals grants to ruling 2001-11584, of eight hours and fifty-three minutes, of November ninth, two thousand one, of the Constitutional Chamber, to disapply former rule 346 of the Criminal Code, does not derive from the text of the aforementioned judgment, since in it, regarding the argument of tacit repeal of said article 346, used by the consulting legislators, it was established: “Tacit repeal of article 346 of the Criminal Code. Finally, article 68 of the bill is consulted, because said numeral introduces confusion related to the principle of legal certainty. The rule takes for granted the validity of the subsections it does not repeal, despite the fact that with the enactment of Law No. 6872 of June 17, 1983 'Law on Illicit Enrichment of Public Servants', the legislator had already provided for the repeal in article 32 of that law. For the consultants, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are violated. Certainly, the provisions that oppose Law number 6872 of June 17, 1983 were repealed as provided in its article 32, but the verification of which provisions it affected and whether they included subsection 4) of article 346, now repealed by article 68 of the consulted bill, is not a question of constitutionality on which this court must render its opinion…”, that is, that Jurisdictional body recognized as a discretionary power of interpretation of the validity of such subsections to the Judges, who, through the study of both regulatory bodies, could determine if they contradicted each other, given that if these supposed contradictions were not verified, the rule of former 346, with the exception of the fourth subsection, remained in force, denoting in the second-instance reasoning that the Judges determined the non-validity of the rule, based on supposed incompatibilities between both articles, although without specifically determining what the contradictions were or juxtaposing both norms in their study, as the Trial Court did in its moment in the sub judice, from folios 000016061 to 00016063 of volume XXXII of the case file. In sum, upon verifying in the case the defect of erroneous application of former article 346 of the Criminal Code, it is appropriate to annul the judgment, regarding the accused [Name01 018] and remand the present process to the Court of Appeals of Sentence, so that with a new integration, it proceeds according to law.” As observed, the validity of article 346 subsection 3) of the Criminal Code is an issue that was expressly decided by the Third Chamber, concluding that the trial court did not commit an error in concluding that this rule was applicable to the case under examination. It is a position that the undersigned must observe when resolving the remand, but which in any case they also share, since the scope of application of article 346 subsection 3) of the Criminal Code and of the referred numeral 26 do not coincide in their content. While the former contemplates the admission of the gift presented or offered in consideration of the public official's office during the performance of the position, the mentioned article 26 criminalized something different, namely, a patrimonial increase whose licit origin the public official could not prove. Thus, subsection a) of numeral 26 contemplated the acquisition of goods of any kind or nature without being able to prove their licit origin and subsection c), enrichment in any manner, as an exclusive consequence of the office, without accrediting the lawfulness of the increase in fortune and the verisimilitude of the sources of resources invoked. Whereas in article 346 subsection 3) of the Criminal Code the action is limited to the admission of the retribution or the promise thereof under certain circumstances (in consideration of the office and during the performance thereof), it being even plausible that the material receipt of the gift constitutes a subsequent unpunished act (this is the case of the admission of the offered gift), in article 26 what is criminalized is the enrichment that effectively took place, where the determining factor is the impossibility of the public official to demonstrate the legitimate origin of the experienced patrimonial increase. Even though subsection c) speaks of enrichment as an “exclusive consequence of the office”, it suffices to read the complete subsection to conclude that it contains a legal presumption, according to which all of the public official's assets that the latter fails to justify, will be considered obtained on the occasion of the office held. In other words, in this case the typical action is not to use the office to enrich oneself, but rather to increase one's assets without any justification, a hypothesis that, besides being clearly unconstitutional, excludes the one provided for in numeral 346 subsection 3) of the Criminal Code. For the foregoing, the ground is dismissed.

XXXV.- Tenth ground. Numeral 346 subsection 3) of the Criminal Code was applied in violation of the binding interpretation of the Constitutional Chamber, in disrespect to article 13 of the Law of Constitutional Jurisdiction and subsections i) and j) of article 369 of the Code of Criminal Procedure. In this section, the challenger states: “The Majority Judges consider that [Name01 018] received a gift by virtue of his office and that this is punishable based on Article 346 subsection 3) of the Criminal Code regardless of whether or not he performed any work for the benefit of his presumed payer. If Article 346 subsection 3) of the Criminal Code is considered in force at the date of the facts, the rule must be interpreted in accordance with what the Constitutional Chamber has ordered, in full respect for the binding nature of precedents indicated by Article 13 of the Law of Constitutional Jurisdiction. The way in which that subsection 3) is drafted reflects that any gift presented or offered in consideration of the official's office becomes illicit, even if the former has not performed any licit or illicit action, proper or contrary to his functions. The mere receipt of the gift is already criminal. The Constitutional Chamber already, from ruling 1707-95 indicated, in its Considerando III, that the accusing 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 relied on what was explained in Ruling 5171-93 and upheld it without any doubt, for which reason it declared unconstitutional the norms of Law 6872 that had substituted the crime of illicit enrichment. But even clearer was the Constitutional Chamber in its Ruling 11584-01 of 8:53 hours 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 states, in the wording of Magistrate Name33, 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, thus infringing the principle of innocence by indirectly obliging him to prove the origin of his goods. This is important, since in the words of the Chamber it is not enough that the official receives goods that increase his assets, nor that this is demonstrated; it is necessary that this increase comes from an illicit activity which cannot be the mere receipt but something more, since otherwise, the accused would have to demonstrate the origin of his increase, in violation of the prohibition of reversing the burden of proof. This doctrine is fully applicable to the case at hand, since in this case the criminal offense of Article 346 subsection 3) punishes the mere receipt of gifts without the need for the accusing entity to prove the illicit activity that motivates that receipt, with which the accused, in his defense, must prove the origin of those funds, in violation of the stated constitutional principles…”. (F. 172,761 and 172,762 front). He reproaches the court for not applying “the doctrine” previously referred to, despite having been requested to do so. The interpretation made of the mentioned article 346, on the contrary, opposes the Political Constitution and is null, for contravening article 13 of the Law of Constitutional Jurisdiction.

XXXVI.- The claim is not admissible: Contrary to what the appellant states, in the process examined here, the burden of proof has not been reversed. Note that the requesting body, with abundant evidentiary elements, managed to demonstrate that the gift that the accused [Name01 018] received during the months of January and February 2002 was presented to him because of his status as a deputy and member of the commission in charge of the telecommunications matter; that it came from the company [Name 091] (a provider in that field) and, above all, that said economic retribution was admitted by [Name01 018] during the performance of that public office. In the same manner, the trial court dismissed, adhering to the rules of sound criticism, the defense's thesis for the defendant, in the sense that the monies were obtained for having performed consulting services for [Name01 091]: “Up to this point it is seen then that the accused [Name01 018] served as a deputy of the Legislative Assembly and it is by virtue of that condition that the first approach by representatives of [Name01 091] occurred, with the purpose of forming his opinion on the topic of direct contracting at ICE because the company [Name 091] considered that they caused its exclusion from the market. It is worth pointing out, at once, that the defendant's legal representative (who did not testify, as is his right), has maintained that [Name01 018] provided consulting services to the company [Name01 091] without his condition as a deputy recognizing any prohibition against providing said professional service. From this argumentation, it is important to highlight firstly, how –implicitly– the defense of [Name01 018] acknowledges as true the accusation regarding the receipt of monies coming from [Name01 060] via [Name01 058], and that what it only rejects is that it was by way of a gift, since it maintains that what was received was a remuneration for the provision of such services. Among those appearing at the debate with a similar trajectory in the Legislative Assembly, Messrs. [Name01 249], [Name01 250] and [Name01 251], among others, all coincided in terms, more or less similar, that deputies are not recognized a prohibition and that, in fact, some simultaneously exercise liberal professions. However, as will be analyzed throughout this Considerando, the evidence produced determines completely the opposite, i.e., that the money received was not for professional consulting services or anything resembling it, but simply and plainly was by way of a gift, moreover received and taken advantage of by [Name01 018]. Therefore, even if the accused [Name01 018] had denied it –a thing which, as stated, he implicitly does not do, because by pointing out that it was for a different reason, he admits the receipt of the money– with the body of evidence it is confirmed that [Name01 018] received the cited monies coming from [Name01 060] as a result of a gift and not as payment for a licit remuneration. Hence, it lacks relevance whether some of the witnesses have stated the legal possibility for a deputy to exercise a liberal profession or, indeed, to dedicate himself to tasks other than the deputy function simultaneously. The foregoing because that is a statement by the declarants on the theoretical plane, but they do not account for what occurred in the concrete reality of [Name01 018], which reflects something different from the theory. The expert Nombre97 stated that from the analysis of the banking documentation, it does not derive that for the date of these facts [Name01 063] was a legislative advisor, nor was it established that [Name01 018] was an advisor to [Name01 091], or had any commercial or employment relationship with [Name 058]. Note also that [Name02 091] already had a political strategist and in accordance with the assessments and recommendations that [Name01 124] had made, key actors in certain sectors had been approached, which, in practice, initially legal, finally led to the payment of such officials, among them [Name01 063] and [Name01 018]. There is also no reference whatsoever about the existence of the alleged consultancy, but rather evidence to the contrary. Besides what was said, note that in the company [Name 091 252] expressed that all consultancies were done in writing and that they were on file at the company and that is why no verbal contract was possible when more than $700 thousand is paid, that he never sees a consultancy contract nor approves the delivery of this money. He pointed out that all consultancy contracts for more than $10 thousand passed through his hands and this did not occur. Also [Name01 128], [Name01 132] and [Name01 111] pointed out that the only political advisor or strategist was [Name01 124]. Witness [Name01 111] added that she was present throughout the entire contracting process for the 400,000 cellular lines and never saw [Name01 018], nor heard of an advisor with that name, nor that he had worked for the company [Name01 091]. On the other hand, [Name01 158], his friend for many years, also did not see him or hear talk of such consultancy, but rather only sees him attending to his clientele in his private practice. On the contrary, the version that [Name01 018] gives to [Name01 158] is that he earned some money with [Name01 091] in an easy way because he did nothing. With the cited body of evidence, while it is possible to affirm that the provision of professional services or distinct remunerated tasks are not incompatible with the office of deputy, since for the performance of this office no prohibition payment is recognized, the truth is that it is clear to the court that [Name01 018] did not act, under any circumstance, as an advisor to [Name01 091] and that the money received from said company was as a gift on the occasion of his condition as a deputy, which are two different things. Other reasons support the foregoing consideration: [Name01 142] says that [Name01 041] told the media that he gave gifts to public officials; [Name01 116] also points out that spontaneously [Name01 041] pointed out that he paid bribes to public officials and among them he mentions [Name01 018] and adds a fundamental aspect in the sense that such revelation was made by [Name01 041], even before that information was revealed in the national press…Likewise, in the contracting rules of [Name01 091] there is a prohibition for those acting as advisors to be public officials; it is expressly stated that consultant agents cannot be public officials. Finally, when the scandal comes to light, [Name01 158] relates that he talks with [Name01 018] who had previously told him that the money comes from the sale of a property in Jacob (sic), but that at that moment he confesses to him that the money does not come from the sale of said property, but from the offering of [Name01 041] for a consultancy that he had carried out with [Name01 091] so that they would win the cellular phone bidding, that [Name02 063] is an ICE engineer who had helped him with that and that SNQC was the means channeled for the delivery of the money. It is observed that in the narrative of [Name01 018], while he maintains that the money is caused by carrying out a consultancy, he equally partially recognizes that the receipt of money is related to his intervention in a bidding for cellular phones, this last circumstance -as was said- which can be clearly deduced from the evidence; however, regarding the provision of the consultancy, it has already been extensively explained why it is a version dismissed by this jurisdictional body.” (Cf. f. 16,001 to 16,004 front). Given this panorama, it lacks any foundation to maintain that the trial court reversed the burden of proof, demanding that [Name01 018] demonstrate the licit nature of the funds. Quite the contrary, its irregular origin was duly accredited through abundant evidence described in the previous considerandos (to which the appellant must adhere), evidence which, simultaneously, allowed the a quo to also dismiss the thesis that the income was payment for a consultancy. Finally, it is important to emphasize that [Name01 018] was not reproached for unjustifiably or suspiciously increasing his assets (which would clearly be unconstitutional for placing the public servant in the situation of having to prove the licit origin of his goods). In reality, he was punished for admitting or accepting gifts that were presented to him by the heads of [Name01 091] by virtue of his condition as a deputy and, more specifically, for his role in the commission related to the telecommunications matter, all of which happened while he held that office. This also allows marking a substantial difference like the case analyzed by the Constitutional Chamber in resolution No. 2001-11584 that the appellant cites, since in that case what was being weighed was the constitutionality of a bill where, in that case indeed, the possession of goods by the public official in an unjustified manner, that is, without giving reason for their origin, was criminalized. On that occasion, the Constitutional Chamber pointed out:

“I.- In accordance with the provisions of article 96 subsection b) of the Law of Constitutional Jurisdiction, this concerns the facultative consultation, raised by ten Deputies, for which reason this Chamber will review only the aspects specifically questioned by the consultants and not general aspects of constitutionality of the Law that contains the challenged norm, as provided in article 99 of the law governing this jurisdiction. In that sense, subsection c) of article 45 of the consulted bill is excluded from the analysis of this court, since the consultants did not clearly indicate the reasons for which there are doubts or objections regarding its constitutionality.

II.- On the content of the questioned norms. The consulted norms are the following:

"Article 45.- Illicit enrichment.

Will incur the crime of illicit enrichment and will be punished with imprisonment from one to eight years, the person who after assuming a public office, or that person who with powers of use, custody, administration or exploitation of public funds, services or goods, under any title or modality of management, is verified to:

a. Be in possession of goods or in the enjoyment of rights, for themselves or through an intermediary natural or legal person, whose value exceeds their legitimate and normal economic possibilities, those of their spouse, partner, siblings and other relatives up to the third degree of consanguinity or affinity.

b. Has canceled debts or extinguished obligations that affected their assets, those of their spouse, partner, siblings and other relatives up to the third degree of consanguinity or affinity, in terms and conditions that exceed their legitimate and normal economic possibilities and those of the indicated relatives.

c. Consents to, facilitates or conceals as an intermediary person, the illicit enrichment of another, in the terms and scopes of the previous subsections" "Article 46.- Illicit enrichment of relatives Will be punished with imprisonment from one to eight years, the person who, being the spouse, partner, or relative up to the second degree of consanguinity of a public official, is verified to have increased their assets, in the terms indicated in the previous article" "Article 68.- Repeal of subsection 4) of article 346 of the Criminal Code Subsection 4) of article 346 of the Criminal Code is hereby repealed" III.- Of the principle of legality of criminal norms. It is pointed out in the consultation, and this court renders its opinion on these norms, that articles 45 subsections a) and b) and 46 of the bill do not correctly criminalize the conduct intended to be repressed as a crime. For the consultants, the phrase in subsection a) of article 45 "Be in possession of goods or in the enjoyment of rights" does not refer to an action but to a state. Likewise, the phrases "whose value exceeds their legitimate and normal possibilities" and "in terms and conditions that exceed their legitimate and normal economic possibilities" provided in both subsections contain indeterminate economic concepts that prevent the judge from starting from objective criteria and hinder the understanding of the norm. These defects are also present in article 46, by punishing the spouse, partner, or relative up to the second degree of consanguinity of a public official whose proven increase in assets has been verified through the application, by the judge, of indeterminate economic concepts. The Chamber has referred to the principle of legality in criminal matters on various occasions. In the judgment of sixteen hours twenty minutes of January fifteenth, nineteen ninety-one, it stated:

"Criminal offenses must be structured basically as a conditional proposition, consisting of a presupposition (description of the conduct) and a penalty consequence; in the first, it must necessarily be indicated, at least, who the active subject is, since in specific crimes they meet certain conditions (nationality, public employee status, etc.) and what the constitutive action of the infraction is (active verb); without these two basic elements (there are other accessory ones that may or may not be present in the typical description of the act) it can be assured that a criminal offense does not exist. From all the foregoing, it can be concluded that there exists a legislative obligation, in order for legality to constitute a true citizen guarantee, characteristic of a democratic State of law, to use legislative techniques that allow correctly criminalizing the conducts intended to be repressed as a crime, since the absolute effectiveness of the principle of reservation, which as indicated is established in article 39 of the Constitution, only occurs in cases where the judge's activity is bound to the law, and it is clear that this is in turn entirely related to the greater or lesser degree of concreteness and clarity achieved by the legislator. The necessary use of language and its restrictions obliges that in some cases the same level of precision cannot be achieved; not for this reason can it be considered that the description presents constitutional problems in relation to legality; establishing the limit of generalization or concreteness demanded by the principle of legality must be done in each particular case." Also in judgment number 3625-93 of fifteen hours twenty-one minutes of July twenty-eighth, nineteen ninety-three, in relation to legality, the Chamber expressed:

"The consultation under study involves, as fundamental themes, the principle of legality and that of prejudiciality in criminal matters. In relation to the first, it is important to previously analyze the principle of legality in the criminal field. The principle of legality in general is that which defines the investiture, competence and powers of public authorities and circumscribes them to a framework of constitutionality and legality, outside of which they would become illegitimate and arbitrary. This principle together with the general right to justice, constitute essential presuppositions of due process, the absence or violation of which entails constitutional transgressions. Among its most important corollaries is the principle of reservation of law, which in criminal matters, acquires specific characteristics due to the necessary prior and clear definition of the actions that constitute a crime, in order to safeguard the legal security of citizens. Article 39 of the Political Constitution enshrines, among others, this principle which in criminal matters means that the law is the only creative source of crimes and penalties. This guarantee is directly related to legality which is an essential presupposition for deeming the repressive activity of the State legitimate and in turn determines that criminally relevant conducts are individualized as prohibited by a norm or criminal offense. Legality guarantees that no human action can constitute a crime, unless it is defined as such by a prior law issued by the competent body." In the case of article 45 subsections a), regarding legality, the criminal offense is defective, as the legislator failed to invest it with the necessary concreteness and clarity, according to the transcribed jurisprudential guidelines. The constitutive action of the infraction is not described, that is, the verb is not recorded. Criminal offenses are those norms that are directed at a specific person and that correspondingly formulate the conduct that must be avoided. Through them, legally protected interests of relevance to society are protected and at the same time they limit the fundamental rights of the active subject, in most cases personal freedom, for which they must be constructed with great rigidity. The phrase "be in possession of goods" does not describe the action of the subject to whom the repressed conduct is destined, which defers or transfers to the judge the task of configuring which actions are punishable, which in reality corresponds to the legislator. Now, in both subsection a) and b) of the cited article, it is said that they contain indeterminate concepts and consequently produce a harm to the guarantee of legality. The phrase "in terms and conditions that exceed their legitimate and normal economic possibilities" due to its lack of definition and technical imprecision leaves open the possibility that these "terms and conditions" be supplied by the judge, Name02 as well as the words "legitimate and normal economic possibilities", because it is not enough to reproach the active subject for the asset increase unless it bears a relationship with the work of the public official. Also in the case of article 46, an infraction of the principle of legality occurs, since it seeks to penalize the relative of the public official for the mere fact of increasing their assets without describing any action to achieve that result and with the same degree of imprecision as subsections a) and b) of article 45 because it refers to them. The defects noted in the drafting of the consulted articles affect the guarantee implied by the constitutional principle of legality in criminal matters.

IV.- Of the principle of innocence. The consultants also consider that there exists a violation of the principle of innocence, in its modality of the burden of proof, according to which it is the Public Prosecutor's Office's responsibility to demonstrate the facts attributed to the accused. The deputies making the consultation base the judgment of unconstitutionality on the fact that articles 45 and 46 of the bill oblige the accused to have to demonstrate ex officio the source of their wealth to prove their innocence. On the subject, the Chamber has already pointed out on various occasions:

"E) THE PRINCIPLE OF INNOCENCE: Like the previous ones, it derives from article 39 of the Constitution, insofar as it requires the necessary demonstration of guilt. No person can be considered or treated as guilty as long as there is no final conclusive judgment against them, issued in a regular and legal process that declares them as such after having destroyed or overcome that presumption.

Furthermore, by virtue of the defendant's state of innocence, it is not he who must prove his lack of guilt, but the accusing bodies..." (Judgment number 1739-92 of 11:45 hours on July 1, 1992) In another resolution, it established:

"The Chamber considers that the principle of innocence protected by article 39 of the Constitution demands the full demonstration of the accused's guilt, beyond all reasonable doubt. Consequently, if a judgment has been issued against the appellant without having reached this state of conviction, the judgment would have violated their right to due process in its substantial element..." (Judgment number 4700-93 of 15:51 hours on September 28, 1993.

In the same vein, judgment number 4784-93 of 8:36 a.m. on September 30, 1993).

In similar terms, judgment number 6660-93 of 9:33 a.m. on December 17, 1993, sets forth:

"Taking into account, furthermore, the principle of innocence (no person may be considered or treated as guilty while there is no final, conclusive judgment against them, issued in a regular and legal proceeding declaring them as such), from which we can extract the principle of the burden of proof that governs our criminal matters, according to which it falls upon the Public Prosecutor's Office (as the organ holding the monopoly on criminal prosecution) to convincingly demonstrate in the proceedings the facts attributed to the accused, thus excluding, by virtue of the defendant's state of innocence, the duty of the accused to prove their lack of culpability. It can be affirmed that if it is proven that any of these aspects has been overlooked by the corresponding jurisdictional organ, there could then exist a violation of the principle of due process and the right of defense." From the foregoing, it can be concluded that demonstrating culpability, through the burden of proof, is the exclusive task of the Public Prosecutor's Office and therefore, it is the legislator's obligation to use techniques that allow the accusing organ to fulfill this constitutional guarantee. In the draft bill under consultation, although the legislator inserted phrases such as "it is proven to him that," the lack of a correct classification of the offense intended to be suppressed causes the presumption of innocence to be reversed, and for the mere fact that the active subject remains in possession of assets or increases his wealth, he will be punished, without demonstrating that this increase in his wealth has a nexus with the illicit activity of the public official, which consequently forces the accused to demonstrate the origin of his assets, thereby flagrantly violating the principle of innocence.

V.- Tacit repeal of Article 346 of the Penal Code. Finally, Article 68 of the draft bill is consulted, on the grounds that said article introduces confusion related to the principle of legal certainty. The norm takes for granted the validity of the subsections it does not repeal, despite the fact that upon the enactment of Law No. 6872 of June 17, 1983, "Ley de Enriquecimiento Ilícito de los Servidores Públicos," the legislator had already ordered the repeal in Article 32 of that law. For the Consultants, the principles governing the validity and repeal of laws enshrined in Article 129 of the Political Constitution are broken. Certainly, provisions opposing Law number 6872 of June 17, 1983, were repealed as provided in its Article 32, but the determination of which provisions were affected and whether subsection 4) of Article 346, now repealed by Article 68 of the draft bill under consultation, was included among them, is not a matter of constitutionality on which this Tribunal must render its opinion.

Por tanto:

The optional legislative consultation on the draft bill of the "Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública," expediente legislativo number 13.715, is hereby resolved in the sense that Articles 45 subsections a) and b) and 46 are unconstitutional. The consultation is inadmissible regarding subsection c) of Article 45 and regarding the effects or possible interpretations of the repeal of subsection 4) of Article 346 of the Penal Code, contained in Article 68 of the draft bill." (Sala Constitucional, resolution No. 2001-11584 of 8:53 a.m. on November 9, 2001). As observed, while in the draft bill examined by the Sala Constitucional what was intended to be criminalized was unexplained wealth increase, obligating Nombre02 the public official to demonstrate the lawful origin of his assets, since otherwise he would lose his wealth, the applied Article 346 subsection 3) of the Penal Code foresees a more concrete conduct, namely, admitting a gift that was not presented to him by chance or coincidence, but that was given to him on the occasion of the position he holds and during the exercise thereof. This is a conduct that certainly violates the protected legal interest, inasmuch as the public official, who should act outside of any economic interest, or at most outside of any interest other than those of the institution itself in which he serves and for which he must watch, Nombre11 within the provisions of the legislation, uses his condition to obtain personal profit. For all the above reasons, the ground is rejected.

XXXVII.- Thirteenth ground. The norms relating to forfeiture (comiso) under Article 110 of the Penal Code are improperly applied by ordering that certificate number 62445223, renewed under 62736757, be transferred to the State, without any grounds or reasoning, additionally infringing Articles 142, 184, and 369 subsection e) of the C.P.P. When ordering the forfeiture, point 9 includes a time deposit certificate with number 62736757, which is neither described nor is its nature and reason indicated. The trial court indicates that the effects of the offense, the means or instruments used in its preparation and execution, and the profits derived from its commission are subject to forfeiture, which is merely a reiteration of what is indicated in Article 110 of the Penal Code. Then, this is ordered, without substantiating whether each of the assets "... are means or instruments with which the offense was committed, effects thereof, or profits derived from its commission, nor why this is so..." (F. 172,765 front). Regarding the forfeiture of the certificate, the reasons for this decision are not indicated, which renders the ruling null for being unfounded. It is not explained whether it is an instrument of the offense, an effect, or a profit derived from it, making it impossible to know the trial court's motivations. Faced with this situation, the appropriate course is to annul the decision of the majority female judges and resolve that such forfeiture is improper, ordering the return of the corresponding sum to its legitimate owner.

XXXVIII.- Although for different reasons, the argument is granted: Before examining the specific case, it is important to make some general considerations regarding Article 110 of the Penal Code. According to this norm, forfeiture (comiso) entails the loss in favor of the State of the instruments with which the offense was committed, of the things or values originating from its commission, or that constitute for the agent a profit derived from the same offense. We speak of a forfeiture that, as in other legal systems such as the German or Spanish ones, is projected onto three categories of assets, namely, instruments, effects, and profits of the offense. Instruments are, in short, "... the tools or means used for the execution of the criminal act" (Nombre98, Josep Miquel; Nombre99. "Título VI. De las consecuencias accesorias." In: Nombre100 (Dir.); Nombre12 (Coord.). Comentarios al Nuevo Código Penal. Navarra, Editorial ARANZADI, S.A., 3rd edition, 2004, p. 649). We speak, for example, of "... the tools for committing robbery or forgery, the weapons used in a hold-up, the capital with which the drug trafficking business is set up, the motor vehicle used for smuggling or to transport the victim who will later be raped..." (Nombre101. "Notas sobre el comiso y la propiedad de terceros." In: Actualidad Penal. Revista semanal técnico-jurídica de Derecho penal. Madrid, La Ley-Actualidad S.Nombre13., No. 24, week of June 9 to 15, 1997, p. 523). In the case of the terms things or values, greater precision is required. The thing, which comes from the Latin causa, according to the Diccionario de la Lengua Española is everything that has entity, whether corporeal or spiritual, natural or artificial, real or abstract. Although it is also defined as a material object as opposed to the rights created over it and personal services, it is no less true that it is considered synonymous with the term good, and this is understood as material or immaterial things as objects of law. In other words, with the term things the Costa Rican legislator does not allude solely to corporeal things, but also to immaterial ones. Value, for its part, alludes to the quality of things, by virtue of which a certain sum of money or equivalent is given for possessing them, or to the quality possessed by some realities, considered goods, for which they are estimable. Nombre02 therefore, we understand by value any economically estimable good. Article 110 of the Penal Code provides for the forfeiture of things or values originating from the commission of the offense. With this expression, it alludes to what in doctrine is known as producta sceleris in the strict sense, that is, goods produced, transformed, or manipulated from the very conduct constituting the infraction, e.g., the falsified document or money, or the drug when it results from the commission mechanics itself (thus, Nombre101, "Notas sobre el comiso y la propiedad de terceros.", op. cit., p. 524; Nombre101. "Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal." In: Documentación Jurídica. Monográfico dedicado a la propuesta de anteproyecto del Nuevo Código Penal. Madrid, Gabinete de Documentación y Publicaciones, Secretaría General Técnica, Ministerio de Justicia, Volume 1, January/December, 37/40, 1983, p. 246 and Nombre102 (Coord.); Nombre14, Nombre103; Nombre15, Nombre16. Las consecuencias jurídicas del delito en el nuevo Código Penal español. El sistema de penas, medidas de seguridad, consecuencias accesorias y responsabilidad civil derivada del delito. Valencia, Tirant lo Blanch, 1996, pp. 450-451). Finally, the Costa Rican legislator also contemplated the forfeiture of the profit from the offense. This term, coming from the Latin profectus, is defined by the Real Academia Española as the benefit or utility obtained or originated from something or by some means. Benefit, of which it is a synonym, is defined in turn as the economic gain obtained from a business, investment, or other commercial activity. Likewise, utility is the profit, convenience, interest, or fruit derived from something. In summary, when speaking of profit, it refers to the gains derived from the offense. Another aspect to consider is the prerequisite for forfeiture (comiso). According to the general rule provided in Article 110, forfeiture is linked to the offense. Forfeiture is a consequence of this and not, for example, of the commission of an act that, although typical, does not meet other requirements, such as unlawfulness or culpability. The offense, from a technical dimension, must be understood as typical, unlawful, and culpable conduct and not as a simple legislative provision independent of a declaration of responsibility in a specific case, since Nombre02 it follows from Article 103 of the Penal Code which, insofar as relevant, indicates that forfeiture has as a prerequisite a punishable act and will be imposed in the conviction judgment. This Chamber is not unaware that some courts have applied this legal institute in other circumstances, for example, when despite a definitive dismissal being issued due to the extinction of criminal liability after payment of the fine, the assets are intrinsically dangerous. In this sense, judgment No. 629-2000, issued by the Tribunal de Casación Penal de San José, at 12:00 noon on August 14, is expressed. This judgment also indicated that forfeiture may proceed after an acquittal judgment is handed down: "It is logical to understand it Nombre02 since forfeiture is decreed as a result of a judgment, be it conviction or acquittal, and, among the latter, by analogy, the dismissal, which ultimately has the same procedural effects. In that same sense, Article 465 CPP determines that 'when the judgment orders the forfeiture of an object, the court shall give it the destination that corresponds according to its nature, in accordance with the norms governing the matter.' There will be very relevant cases in which, despite the defendant's exoneration, it is necessary to decree forfeiture. For example, the destruction of drugs, explosive materials, or poisonous substances. In these cases, the safeguarding of transcendent public interests (public health or common safety) is at stake. It is obvious to understand that these are measures to be imposed with caution and prudence, lest the interests of the accused be unnecessarily harmed, despite their acquittal. From this perspective, the situation in each specific case must be assessed, and if, in accordance with the provisions of the law, decreeting the forfeiture of assets is appropriate." The foregoing argument, besides not corresponding to what is set forth in Article 110 of the Penal Code (since it alludes to the "offense" as the prerequisite for seizure), can only be invoked for the forfeiture of effects and instruments, not Nombre02 for the forfeiture of profits, since while the basis for the former is the danger associated with the asset and what is sought with the legal institute is to protect the community against that danger [thus Nombre101, "Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.", op. cit., p. 246 and Nombre104. "El comiso en materia de tráfico de drogas: visión comparada de las regulaciones española y chilena". In: Anuario da Facultade de Dereito da Universidade da Coruña (Revista jurídica interdisciplinar internacional). Universidade da Coruña, Servicio de Publicacións, No. 10, 2006, p. 853], in the case of profits, the situation is different. The forfeiture of these is explained solely by the need to suppress a wealth increase that has been obtained irregularly (Nombre105. "El comiso de las ganancias provenientes del delito y el de otros bienes equivalentes a éstas." In: Revista Penal, No. 19, 2007, p. 166. Article available online: http://www.uhu.es/revistapenal/index.php/penal/article/view/312/303). The seizure of profits cannot be justified with the argument of their dangerousness, since unlike what happens with other assets (e.g., certain firearms or explosives), money is not an intrinsically dangerous asset. Likewise, its forfeiture cannot be based on the probability that these profits will be used in the commission of new infractions, because this would lead us to deny the application of the institute when that risk does not exist, allowing the perpetrator of the act, or those close to them, to enjoy the benefits obtained irregularly. The forfeiture of profits, therefore, is based on the need to suppress enrichment that has its origin in an act that, at least in principle, is of interest to the criminal legal system and whose characteristics are defined by the legislator in each country. Nombre02 for example, in Germany, the forfeiture of benefits requires the unlawful commission of the defined act, but not its culpable commission (Nombre02, Nombre106, Nombre17; WEIGEND, Thomas. Tratado de Derecho Penal. Parte General. Translation by OLMEDO CARDENETE, Miguel. Granada, Editorial Comares, S.L., 5th renewed and expanded edition, 2002, p. 851). In the Spanish case, in addition to a mandatory forfeiture of profits whose prerequisite is the penalty imposed for an offense (Article 127 of the Spanish Penal Code), recently - in July 2015 - a norm was included (Article 127 ter) that provides for an optional forfeiture in cases where there is no conviction and the illicit wealth situation is demonstrated through an adversarial process. This is a possibility that can only be considered in the following scenarios: a) The subject has passed away or suffers from a chronic illness that prevents their prosecution and there is a risk that the facts may become time-barred, b) they are in absentia and this prevents the facts from being prosecuted within a reasonable period, or c) they are not penalized because they are exempt from criminal responsibility or because it has been extinguished. The comparison of our regulation regarding forfeiture with that of other countries allows us to conclude, without any doubt, that contemplating the offense as the sole prerequisite for applying this legal institute is insufficient. In the case of effects and instruments, their forfeiture should be conditioned on the intrinsic dangerousness of the asset and the need to protect the community against its eventual use. In the case of profits, the prerequisite for forfeiture must be the demonstration of conduct that is at least typical and unlawful and from which irregular enrichment has been obtained. What is not possible, according to this Chamber's view, is for the legal operator, faced with a clear norm, to resort to an extensive interpretation to endow the cited Article 110 with a content it does not have, with a view to ordering a forfeiture that is not appropriate. Having said this, we find that in this specific case, at folio 16,339 front of volume XXXIV, the trial court ordered the forfeiture of investment certificate No. 62445223, which was renewed in certificate No. 62736757 for the amount of ₡5,463,555.65 (five million four hundred sixty-three thousand five hundred fifty-five colones sixty-five céntimos), without ever setting forth any reason why this should proceed in such a manner, that is, without explaining, either in this section or anywhere else in the judgment, what the relationship is between said certificate and the offense, specifically, whether it is an instrument, an effect, or a profit derived from it. This is a transcendental error if two issues are taken into account. The first is that the conduct of [Nombre02 018], in admitting economic remuneration from [Nombre01 060] after leaving the position of deputy, is atypical. Those wealth advantages cannot be considered profits from the offense and therefore, are not subject to forfeiture (comiso). The second point to consider is that although the trial court, in the section dedicated to examining the situation of [Nombre01 018], stated that certificate No. 62736757 is related to the RAV 4 vehicle, plate [Valor 052], that this defendant bought, that conclusion is not extracted from the evidence it cites to support the foregoing. Let us see. According to the accused and proven facts, the RAV 4 vehicle, plate [], was acquired by [Nombre01 018] for his daughter, [Nombre01 243], with funds originating from [Nombre01 060] that were transferred in 2003 and were in the bank account of [Nombre02 215], located in Panama (thus, cf. order to open trial, imputed facts numbers 237 to 239, f. 10,484 to 10,485 front, volume XXIII and proven facts numbers 224 to 228, transcribed above). Based on the evidence identified with numbers 418 to 422, the trial court indicated that in April 2004, [Nombre01 243] sold the mentioned vehicle to Mr. [Nombre01 254] and that on April 30, 2004, she acquired the Peugeot sedan-style vehicle, plate [Valor 053] (f. 16,040 to 16,044, volume XXXIII), this being "... handed over to the Procuraduría General de la República as confirmed in evidence No. 764" (F. 16,044 front). Now, having reviewed the latter by this Tribunal de Apelación de Sentencia Penal, evidence which is described in the trial court's judgment as "Official communication AEP-386-2010 of August 18, 2010, signed by Miguel Cortés Chaves of the Procuraduría de La Ética y La Función Pública, requesting the liquidation of time deposit certificate No. 62445223 and interest coupon 62445223-1, proceeds from the sale of the vehicle handed over by [Nombre01 018] to the Procuraduría General de la República," we find that it merely alludes to time deposit certificate No. 62445223 and interest coupon 62445223-1, renewed in certificate No. 62736757 for the amount of ₡5,463,555.65, in the Nombre01 of the Procuraduría General de la República. Nombre02 things, contrary to what the lower court (a quo) states without basis, at least from evidence No. 764 the relationship of the certificate with the funds obtained from the sale of the Peugeot vehicle, plate [Valor], is not extracted. Now, notwithstanding the foregoing, ordering a remand to discuss the point again is unnecessary, since if what is stated by the appealed judgment regarding the origin of the funds backing certificate No. 62736757 (and which is a renewal of No. 62445223) is admitted, an aspect that furthermore was not subject to any challenge, the only conclusion that can be reached is that this asset does not have a criminal origin, since for the year 2003 [Nombre01 018] did not hold the status of deputy and for that reason, the admission of the economic remuneration used to buy the RAV 4 vehicle is conduct that, although censurable in ethical terms, is not typical. Even less could one speak of a criminal wrong and even less of the commission of an offense as the source of the resources whose forfeiture is sought. Finally, and for the sake of further clarification, it is important to note that the accusation formulated by the requesting organ is completely silent regarding the link between certificate No. 62736757 and the profits originating from [Nombre01 060], or at least with the motor vehicle that, according to the lower court, was acquired using those profits, a matter that was essential to guarantee the discussion on the factual prerequisites that authorize the imposition of forfeiture. So clear is the issue that it was the trial court that, breaching the principle of correlation between accusation and judgment and without the proper substantiation - as was already indicated -, proceeded to incorporate into the judgment the missing information, with the purpose of explaining how part of the profit obtained by [Nombre01 018] underwent multiple transformations until becoming investment certificate No. 62736757, whose forfeiture it ordered. In summary, we understand that in the specific case the forfeiture of the certificate is not appropriate, not only because the decision was adopted without adequate substantiation, but because in any case, starting from the facts demonstrated by the lower court and which were not subject to appeal - some of them, moreover, not described in the accusation, thereby breaching Nombre02 the principle of correlation between accusation and judgment -, the funds backing the certificate did not originate from an offense, but from an atypical act. For the foregoing, the claim is granted. The judgment is annulled solely insofar as it imposed the forfeiture of investment certificate No. 62445223, which was renewed in certificate No. 62736757, ordering its return to whoever proves to be its legitimate owner.

XXXIX.- Appeal in cassation filed by attorney Mario Navarro Arias, private defense counsel for [Nombre01 028]. As explained in previous recitals, after granting certain grounds of the appeals formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, private defense counsel for [Nombre01 041], and by the defendant [Nombre01 033] personally, the opportunity criterion granted to [Nombre01 064] and, consequently, the statement he made at the trial, were declared unlawful. Pursuant to the provisions of Article 443 of the Código Procesal Penal on the extensive effects of the appeal, we proceeded to examine for all the defendants the consequences of that decision, and in the case of [Nombre01 028], it was ordered to annul the judgment insofar as it declared him the responsible perpetrator of three offenses of penalty of the corrupter for aggravated corruption in the modality of improper bribery in material concurrence, in relation to [Nombre01 022], [Nombre01 001], and [Nombre01 064], and instead, he was acquitted of all penalty and responsibility for the referenced offenses. Likewise, given the foregoing decision, it was considered unnecessary to resolve the claims raised by his defense counsel, attorney Mario Navarro Arias, with the exception of that which the appellant termed the third ground on procedural grounds and which will be addressed below. Third ground on procedural grounds. Erroneous and inadequate substantiation. Violation of due process and the right of defense due to erroneous application of Article 110 of the Penal Code. The legal basis for this ground is found in Articles 39 of the Political Constitution, 110 of the Penal Code, 1, 2, 12, 142, 178, 363 subsection b), 369 subsections d) and j), 458, 459, and 460 of the Código Procesal Penal. The appellant points out that the trial court, in section XVII of the judgment, imposed the forfeiture (comiso), among others, of the following assets: 1) Partido de Heredia registered under the folio real system, title number [Valor 006], sub-title in the Nombre01 of the company [Nombre 053]. A company belonging to the defendant [Nombre02 028] "... who proceeded to nourish it with illicit funds coming from [Nombre01 060], and with those funds carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.". 2) Shares of [Nombre01 028] in the company [Nombre 057], owner, among others, of the real estate registered in the Registro Público under the Folio Real System Title No. [Valor 007], Sub-title 000 and Title No. [Valor 009], Sub-title 000, real estate "... that were acquired with illicit funds that came from [Nombre01 060]." For the private defense counsel, the lower court breached what is stated in Article 110 of the Penal Code by failing to substantiate the decision to forfeit the aforementioned assets: "It is not enough to order 'the loss in favor of the State of...', but the causal nexus existing between the commission of the illicit act and the assets upon which the forfeiture falls must not only be demonstrated at trial, and that these constitute a profit derived from the same offense; but also the Court must demonstrate that neither the defendant nor a third party has rights over these assets..." (F. 17,174 front). Furthermore, expert report No. 202-DEF-445-05/06 (Evidence No. 619), in point 4.4, indicates that the company [Nombre 053] was incorporated on April 8, 2002, by the defendant [Nombre01 028] and [Nombre01 257], before Notary Oki Emilio Rojas Chacón. The corporate capital was formed by the sum of one million colones, represented by one hundred common, nominative shares of ten thousand colones each, of which [Nombre01 028] subscribed 99 shares and partner [Nombre01 257] one share. According to a notarial certification of 2:00 p.m. on January 27, 2003, [Nombre01 028] holds the position of president with judicial and extrajudicial representation of the company [Nombre 053], a company that is registered in the Mercantile Section of the Registro Público, at folio 196 of volume 1497, entry 98 (thus, annex 13 of report 202, folio 170). In point 4.3.1 of the same report, it is indicated that the Company [Nombre 057], legal ID CED07° [Valor CED08], was incorporated on May 5, 2003, by [Nombre 264] and [Nombre02 266], before the notary office of Oki Emilio Rojas Chacón. The corporate capital was established in the sum of ¢50,000,000.00 (fifty million colones), represented by 50,000 shares of one thousand colones each, of which Mr. [Nombre01 264] subscribed 49,999 shares of one thousand colones each, and [Nombre01 266] one share of one thousand colones. Therefore, from the same evidence, it follows that the forfeited assets are duly registered in the Nombre01 of corporations in which, besides [Nombre01 028], other partners exist. Jurisprudence and doctrine have determined that the court ordering forfeiture must be very cautious and zealous when 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 proceedings. Likewise, 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; absolute certainty is required, so as not to violate the principles that inform due process, such as: the principle of legality, innocence, defense, fair trial, culpability, etc., as ruled by the Sala Tercera de la Corte Suprema de Justicia, in resolution No. 865-97. In support of his claim, he also mentions resolution No. 00377-2010, of the Tribunal de Casación Penal de Cartago, according to which the causal nexus existing between the assets upon which forfeiture falls and the commission of the illicit act must be demonstrated. He adds that even clearer is ruling No. 00121-2010 of the Sala Tercera, which he transcribes, highlighting from said text the reference that exists regarding the need for said decision to be duly substantiated. He adds that in the case under review, the judgment failed to substantiate the forfeiture. There is not a single reason to conclude that its issuance should have proceeded, to the detriment of the interests of both [Nombre01 028] and third parties unrelated to the proceedings. He adds that the trial court also did not refer to the origin of the funds with which the properties subject to forfeiture were acquired. There are no indications that suggest even as probable, let alone with certainty, that they were those originating from [Nombre01 091] and used by [Nombre01 041] and [Nombre01 078] for the payment of the gifts investigated here. According to the complainant, their origin could have been any other. He reiterates that since 1997 there was a legal relationship between [Nombre01 060] and [Nombre01 058], where legitimate, authentic acts founded on real consulting agreements were executed. The expert reports, the challenger continues, even though they provide a breakdown of amounts by date, cannot specify whether such sums received can be linked to the consulting contracts or to services outside of these.

It is added in the appeal: “… The monies that entered the account of my client, according to the bank information included in the record, arrived a very long time after the charged crime was consummated, so given the long-standing commercial relationship, it is highly probable that the monies in question originated from any of the previously occurring commercial acts. For this reason, it is absolutely necessary for the Court to demonstrate beyond all doubt that all of the monies that entered my client's bank accounts are, in the first place, proceeds of a crime and, secondly, that the crime from which that money came is precisely the one being investigated here, so as not to affect the rights of all those persons who have no relation to the illicit act, nor to violate the principles informing due process, such as: the principle of legality, of innocence, of defense, of a fair trial, of culpability, etc., …”. (F. 17,182 front). He questions why, if the assets of [Name 058] are confiscated (comisados), the same decision was not made regarding the monies received by the Bufete Valerio Casafont, for professional fees, from the account of [Name 058]. In support of this assertion, he cites the testimonies of Name107 and of [Name01 111], to the effect that the funds came from that company's bank accounts. As the ruling is not substantiated, it is unknown why a different course of action was taken regarding the assets of the mentioned law firm. The only substantiation in this regard is a transcription of Article 110 of the Código Penal (Criminal Code), with no analysis of the substantial sums of money that were also paid from the accounts of [Name 058] to other companies: “It is clear, as Name02 determined in the ruling, that [Name01 028] was sanctioned for giving public officials money as payment of bribes (dádivas). Three crimes of aggravated improper bribery (cohecho impropio agravado) in its modality of penalty for the corruptor. The instrument used for the commission of the crime, according to the legal classification, was the money given to the co-defendants. It is clear, as Name02 found it accredited in the ruling, that the money used for that purpose was PRIVATE FUNDS, coming from [Name01 091] AND RECEIVED NOT INTO THE ACCOUNT OF [Name 028], BUT OF [Name01 058]. It is clear and evident that said account handled more than fourteen million dollars and that according to the EXPERT REPORT ADDENDUM NUMBER 202 which explored the movement of the account holder's account, the sums delivered to the involved companies or persons did not exceed fifty percent. As indicated supra, substantial sums were paid to Bufete Valerio Casafont, TO THE COMPANIES MACRO INVESTMENT AND TELEINVEST SOCIEDAD ANÓNIMA, TO THE LATTER A SUM EXCEEDING ONE MILLION ONE HUNDRED THOUSAND DOLLARS. The experts from the Organismo de Investigación Judicial never conducted a study on who those recipients were, despite the sums being substantial. Moreover, THE SENTENCING COURT DID NOT EVEN TAKE THE TROUBLE TO ANALYZE THE RECIPIENTS OF THE SUMS OF MONEY BEYOND THOSE INVOLVED IN THESE EVENTS. Leaving aside a very high percentage of money distributed by the company SNQC. It does not decree the confiscation (comiso) of the money paid to Name108, deeming it to be money received lawfully, thus distorting all of its argumentation regarding the handling of monies by the company SNQC ...” (f. 17,184 and 17,185 front). After citing evidence 619, expert report N° 202-DEF-445-05/06 from the Economic and Financial Crimes Section of the Criminal Investigations Department of Name12 and its annexes, consisting of 178 folios and 7 evidence binders (N°1 with 40 folios, N°2 with 437 folios, N°3 with 368 folios, N° 4 with 232 folios, N°5 with 113 folios, N°6 with 192 folios, N° 7 with 251 folios), the appellant states that these elements prove the origin and destination of [Name01 060]'s money that was delivered by [Name01 028] to the benefit of those charged in the case, but the court did not take care to analyze this evidence. Ignoring that these were private monies handled by the company [Name 058], it decreed the confiscation (comiso) of two assets, specifically a PERCENTAGE IN A COMPANY CALLED [Name01 057] and a dwelling belonging to [Name01 053], acquired with money unrelated to THE OBJECT OF THE CRIME OF IMPROPER BRIBERY (COHECHO IMPROPIO). The appellant adds: “… The point under discussion is that one and its analysis is important. IF SNQC HANDLED PRIVATE MONIES, AND FROM THOSE MONIES SUMS WERE DELIVERED TO THOSE INVOLVED IN THESE EVENTS, WE DO NOT DISPUTE THAT; ACCEPTING AS MUST BE DONE OUT OF RESPECT FOR THE FACTS, the instrument of the crime WAS THE BRIBE (DADIVA), and the benefit of that BRIBE (DADIVA) WAS THE APPROVAL OF THE BIDDING PROCESS IN FAVOR OF [Name 091], such that assuming that assets WERE ACQUIRED with [Name01 091]'s money by means of TWO PRIVATE CORPORATIONS (SOCIEDADES ANONIMAS), those assets cannot be the object of confiscation (comiso) if they are not related to the criminal type attributed to my client …” (F. 17,186 front, tome XXXVI). Based on the foregoing, he requests that this ground be declared with merit and that it be ordered, first, the revocation of the confiscation (comiso) or, in the alternative, that a retrial be ordered so that, with a new panel and in accordance with the rules established in Article 359 of the Código Procesal Penal (Criminal Procedure Code), the court determines and substantiates whether or not the ordered confiscation (comiso) is applicable.

XXXX.- Although for different reasons, the ground is upheld. In section XVII of the judgment, specifically from folio 16,337 front to 16,341 front, tome XXXIV, the confiscation (comiso) of the following assets was ordered: “A.4) Property in the Partido de Heredia registered under the system of Folio Real, Registration Number Nº [Value 006], Sub-registration in the name (a Nombre01) of the company [Name 053]. A company belonging to the accused [Name01 028] who proceeded to fund it with illicit monies coming from [Name01 060], and with that money carried out various bank transactions and businesses of different kinds (sic), such as the purchase of the described estate…4) The shares of [Name01 028] in the company [Name 057], owner, among others, of the properties registered in the Registro Público under the system of Folio Real, Registration Number Nº [Value 007], Sub-registration 000, and Registration Number Nº [Value 009], Sub-registration . Real estate that was acquired with illicit monies coming from [Name01 060].” As can be observed, the trial court indicated that the estate in the Partido de Heredia registered under the system of Folio Real, registration number Nº [Value 006], sub-registration 000, in the name (a Nombre01) of the company [Name 053], was acquired with the proceeds coming from [Name01 060]. The same was affirmed regarding the properties registered in the name (a Nombre01) of the company [Name 057], ordering the confiscation (comiso) of [Name01 028]'s shares in the cited company. In light of the lower court's (a quo) assertion, in which the seized (decomisados) assets are profits derived from the crime of penalty for the corruptor in its modality of aggravated corruption for improper bribery (corrupción agravada por cohecho impropio), this chamber concluded, in earlier recitals, that the conduct of [Name01 028] (that which could be proven) is atypical, and consequently, he was acquitted of all penalty and responsibility. Under these new circumstances and as already indicated when examining the confiscation (comiso) of investment certificate Nº 62736757 (thus, recital XXXIX.- of this resolution), the confiscation (comiso) is absolutely improper, since if there is no typical action, still less will there be criminal wrongdoing (injusto penal) and still less a crime that can be deemed the origin of the funds used to acquire the assets whose confiscation (comiso) was ordered in the appealed judgment, the latter being the prerequisite contemplated by Article 110 of the Código Penal (Criminal Code). For this reason, the claim is declared with merit. The judgment is annulled insofar as it ordered the confiscation (comiso) of the estate in the Partido de Heredia registered under the system of Folio Real, registration number Nº [Value 006], sub-registration in the name (a Nombre01) of the company [Name 053], and of the shares of [Name 028] in the company [Name02 057], owner, among others, of the properties registered in the Registro Público under the system of Folio Real, registration number Nº [Value 007], sub-registration 000, and registration number Nº [Value 009], sub-registration . The immediate return of the aforementioned assets to whoever proves to be their legitimate owner is ordered.

XXXXI. - Appeals of cassation and of appeal against the judgment (apelación de sentencia) filed by licensed attorney Juan Luis Vargas Vargas, special judicial representative of [Name02 077] in his capacity as president of the company [Name 061]. Licensed attorney Juan Luis Vargas Vargas, special judicial representative of [Name01 077] in his capacity as president with unlimited general powers without limit of sum of the company [Name02 061], filed an appeal of cassation (f. 17,649 to 17,674 of tome XXXVII; as Name02 as an appeal of appeal against the judgment (cfr. f. 172,273 to 172,291 of tome XXXIX), against judgment Nº 167-2011, cited above. In both, after referring to the need to guarantee a comprehensive review of the decision, he alludes to his standing to appeal, explaining that both the doctrine and the jurisprudence of the Sala Tercera (resolutions Nº 138-91; 1080-98; 583-2003; 712-2006 and 125-2010), as Name02 as that of the Sala Constitucional (resolutions Nº 5447-95, 4121-96 and 5464-96), recognize the right to file an appeal for anyone who, without having been a party in the proceeding, was affected by the challenged resolution. He speaks, in particular, of the right to challenge recognized for a third party who is harmed by the confiscation (comiso) of an asset of their property, as happened in this case. Given that the content of both challenges (cassation and appeal against the judgment) is essentially the same, this chamber will provide a single description of what is claimed. “Sole ground of the appeal. Violation of due process due to infringement of the right of defense for having ordered the confiscation (comiso) of a real estate asset belonging to a corporation (sociedad anónima)” (f. 172,279, tome XXXIX). As violated regulations, the appellant cites Articles 39 and 41 of the Constitución Política (Political Constitution), 8 subsection 1) of the Convención Americana sobre Derechos Humanos (American Convention on Human Rights), and 369 subsection j) of the Código Procesal Penal (Criminal Procedure Code). As erroneously applied provisions, he mentions numerals 103 and 110 of the Código Penal (Criminal Code). According to him, the right to due process was violated, by not guaranteeing the right of defense and audience to the company owner of the real estate asset whose confiscation (comiso) was ordered. After citing doctrine and some pronouncements of the Corte Interamericana de Derechos Humanos (Inter-American Court of Human Rights) on due process, and of the Sala Constitucional and the Sala Tercera on the subject and in particular, on the right of defense and audience (from the Sala Constitucional, resolutions Nº 5447-95; 4121-96 and 5464-96; from the Sala Tercera, votes Nº 74-98; 1080-98; 583-2003; 1273-2005; 712-2006; 96-2009; 125-2010 and 163-2010), Mr. Vargas Vargas states that the confiscation (comiso) of the property [Value 003], belonging to the company called [Name01 061], legal identification number (cédula jurídica) [Value CED09], was ordered without giving it participation in the process. For the appellant, the substantiation given for the confiscation (comiso) is not valid “… as it constitutes mere general assertions without a specific reference to the case, and above all to the intervention of the company from which the repeatedly cited property is confiscated (comisa). The defect denounced in this ground prevented the sentencing judge from issuing any pronouncement on the confiscation (comiso), since the minimum premises of adversarial process guaranteeing that the defense of the harmed company had been heard had not been established in the proceeding. In this sense, the decision taken on the confiscation (comiso) is not based on a prior discussion between the parties, as is proper in an accusatory system, and even more so on a matter involving the loss of property of an asset. For this reason, the decision to order the confiscation (comiso) in the judgment is surprising because during the processing of this case, the referred company was not given any notification (traslado), thus providing it no opportunity whatsoever to present its reasons opposing such a possibility of losing the mentioned property in favor of the State” (folio 172,288, tome XXXIX). He reiterates that the court ordered the confiscation (comiso) of the property without giving the owner company an opportunity for defense, causing it irreparable harm. He adds that in cases like the present one, the Sala Tercera has ordered the partial nullity of the decision and ordered a retrial for a new substantiation of the point, a position he does not share, because: 1.- It would give an undue advantage to the civil actors, who did not bring action in due time and form against the corporation (sociedad anónima): “This implies a breach of the rule of defective procedural activity which establishes that under the pretext of repeating an act, the criminal proceeding cannot be rolled back to precluded stages” (Folio 172,289). 2.- “Due to the large dimensions of the denounced procedural defect, 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 adequate mechanism to re-establish the enjoyment of the company's intervention rights. And this is Name02 because ordering a partial nullity would imply curtailing the opportunity to offer evidence and rebut the evidence and arguments of the actors in an intermediate phase already precluded” (Folios 172,289 and 172,290). Therefore, he deems it contrary to logic and procedural economy to order the partial repetition of the trial, the only solution being to refer the interested parties “to the corresponding venue,” if they deem it appropriate. Regarding the request of the appeal, he requests that it be declared with merit, that the judgment be annulled insofar as it ordered the confiscation (comiso) of the estate registered under the sequence number [Value 003], of the Partido de Guanacaste, which belongs to the company [Name01 061], and, as it is the only solution consistent with the defect alleged, that the parties be referred to the corresponding venue, if they deem it appropriate. Finally, it must be noted that the appellant offered evidence at this procedural stage, admitting the special judicial power of attorney from [Name01 077] to licensed attorney Juan Luis Vargas Vargas; the copy of the legal capacity (personería jurídica) of the company [Name01 061]; and a registration certification (certificación registral) stating that this legal entity is the owner of the property that is the object of confiscation (comiso).

XXXXII. - Although for reasons and with consequences different from those alleged, the appeal is declared with merit. The trial court ordered the confiscation (comiso) of the estate registered in the Partido de Guanacaste, system of Folio Real, registration number [Value 003], sub-registration and which belongs to the company [Name01 061], after understanding that it was acquired with part of the economic retribution (retribución económica) that was promised to [Name01 001] by the heads of [Name01 091], that is, with the profit obtained from the crime of aggravated corruption for improper bribery (corrupción agravada por cohecho impropio) (thus, f. 16,338 front, tome XXXIV). However, this chamber acquitted [Name01 001] of that crime, after ruling out as a proven fact that he accepted a promise of economic retribution (retribución económica) in the terms contemplated in the accusation, and also excluding that his conduct, in what can be considered proven with certainty by the lower court (a quo), could be subsumed under another criminal type. Given this new scenario, the confiscation (comiso) of the estate belonging to [Name01 061], a corporation (sociedad anónima) represented by [Name01 077], the accused's father, must be considered improper, since even though the property was acquired with the funds coming from [Name01 060], in this particular case no crime was configured, a basic requirement for the provisions of Art. 110 of the Código Penal (Criminal Code) to apply. For the foregoing reasons, the challenged judgment is annulled insofar as it ordered the confiscation (comiso) of the estate registered in the Registro Público de la Propiedad (Public Property Registry), Partido de Guanacaste, under the system of Folio Real, registration number [Value 003], sub registration . The return of the asset to its legitimate owner is ordered.

POR TANTO (THEREFORE):

• 1)The second ground of appeal against the judgment (apelación de sentencia) filed by licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Name01 041]; section two point D); and section three point A), of the appeal of appeal against the judgment (apelación de sentencia) filed by the accused [Name02 033], in a personal capacity, are declared with merit. By virtue thereof, it is resolved as follows: 1.1) The prosecutorial discretion criterion (criterio de oportunidad) granted to [Name01 064] and the evidence derived from it is declared unlawful; 1.2.) The challenged judgment is partially annulled, only as regards the following: the convictions ordered against [Name01 033] and [Name01 041]. Likewise, by extended effect, the convictions handed down against [Name01 028], [Name02 001] (only for the crime of aggravated corruption (corrupción agravada)), and [Name01 022] are also annulled. By application of the principle in dubio pro reo, these five accused are acquitted of all penalty and responsibility for the crimes that have been attributed to them. 1.3.) As unnecessary, pronouncement on the other claims made by [Name01 033] in a personal capacity; the appeals filed by his defense counsel, licensed attorney Rafael Gairaud Salazar; the other claims contained in the appeals filed by licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Name 041]; the grounds raised (with the exception of the third from each of their appeals) by licensed attorney Mario Navarro Arias, defense counsel for [Name 028]; by licensed attorney Yamura Valenciano Jiménez, public defender of the co-defendants [Name02 001] and [Name01 022], is omitted. 2) The fifth ground on procedural form, point 1), of the appeal filed by licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, public defenders of [Name 006], is declared with merit. By virtue thereof, the judgment is annulled only insofar as it ordered this accused to pay personal costs (costas personales). A retrial of the case to the trial court is ordered, so that this point is decided again, with proper substantiation. 3) The fourth, fifth, sixth, seventh, eleventh, twelfth, and thirteenth grounds of the appeals filed by licensed attorney José Miguel Villalobos Umaña, private defense counsel for [Name01 018] and by this accused in a personal capacity, are declared with merit, with the following consequences: 3.1) The judgment is annulled only regarding the penalties imposed on [Name01 018] for the crime of illicit enrichment (enriquecimiento ilícito). Regarding said point, a retrial of the case to the trial court is ordered so that, with a new panel and proper substantiation, it proceeds to set the corresponding sanction. 3.2.) The judgment is annulled insofar as it ordered the confiscation (comiso) of the investment certificate N° 62445223 which was renewed in certificate Nº , ordering its return to whoever proves to be its legitimate owner. 4) The third ground of the appeal filed by licensed attorney Mario Navarro Quirós, private defense counsel for [Name02 028], which he called “Erroneous and inadequate substantiation. Violation of due process and the right of defense due to erroneous application of Article 110 of the Código Penal (Criminal Code)”, is declared with merit. By virtue thereof, the judgment is annulled only insofar as it ordered the confiscation (comiso) of the estate in the Partido de Heredia registered under the system of Folio Real, registration number Nº [Value 006], sub-registration in the name (a Nombre01) of the company [Name01 053], and of the shares of [Name 028] in the company [Name 057], owner -among others- of the properties registered in the Registro Público under the system of Folio Real, registration number Nº [Value 007], sub-registration 000, and registration number Nº [Value 009], sub-registration . The immediate return of the aforementioned assets to whoever proves to be their legitimate owner is ordered. 5) The appeals filed by licensed attorney Juan Luis Vargas Vargas, special judicial representative of [Name01 077] in his capacity as president of [Name02 061], are declared with merit. By virtue thereof, the challenged judgment is annulled only insofar as it ordered the confiscation (comiso) of the estate registered in the Registro Público de la Propiedad (Public Property Registry), Partido de Guanacaste, under the system of Folio Real, registration number [Value 003], sub registration and which belongs to the cited corporation (sociedad anónima). The return of the property to whoever proves to be its legitimate owner is ordered. 6) The other claims raised by the defendants and their defense counsel are declared without merit. 7) In application of the institutional zero paper policy and given that the resolution is very extensive, for which reason it cannot be notified by fax or email, a compact disc containing it is made available to the parties, which they may pick up at the court clerk's office starting next Wednesday, December 9, 2015. Notify.

Patricia Vargas González Ronald Salazar Murillo Mario Alberto Porras Villalta Judge and Judges of the Criminal Appeals Court Case File: 04-006835-0647-PE (04) Defendant: [Nombre01 033] and others Victim: Instituto Nacional de Electricidad Crime: Aggravated Corruption and others AVARGASQ **JUDICIAL POWER** **CRIMINAL SENTENCING APPEALS COURT** **Resolution: 2015-1620** **Case File: 04-006835-0647-PE (4)** **CRIMINAL SENTENCING APPEALS COURT, Second Judicial Circuit of San José.** Goicoechea, at sixteen hours ten minutes on December second, two thousand fifteen.- **APPEALS** filed in the present case against [Nombre 001], [...]; **[Nombre 006]**, [...]; [Nombre 018], [...]; **[Nombre 022]**, [...]; [Nombre 028], [...]; [Nombre 033], [...]; [Nombre 041], [...]; for the crimes of **AGGRAVATED CORRUPTION IN THE MODE OF IMPROPER BRIBERY, ILLICIT ENRICHMENT, AND PENALTY OF THE CORRUPTOR FOR AGGRAVATED CORRUPTION IN THE MODE OF IMPROPER BRIBERY,** to the detriment of **THE DUTIES OF PUBLIC OFFICE AND THE INSTITUTO COSTARRICENSE DE ELECTRICIDAD.** Participating in the decision of the appeal are Judge Patricia Vargas González, Judges Mario Alberto Porras Villalta and Ronald Salazar Murillo. Appearing at this venue: Dr. [Nombre01 033], together with his defense attorneys, Licenciados Rafael Gairaud Salazar and Cristian Arguedas Arguedas; Licenciado Hugo Santamaría Lamicq, as defender of Mr. [Nombre 046]; Licenciado Mario Gonzalo Soto Baltodano, as President with the powers of a universal general agent without limit of sum for the company named [Nombre 050]; Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defenders of Mr. [Nombre 006]; Licenciado Mario Navarro Arias, as defender of Mr. [Nombre01 028] and special judicial agent for the companies [Nombre 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]. and [Nombre 058].; Licenciado José Miguel Villalobos Umaña, as defender of Mr. [Nombre 018]; Messrs. [Nombre 001], [Nombre 028], [Nombre 041] and [Nombre 018], in a document authenticated by Licenciado José Miguel Villalobos Umaña; Licenciados Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial agents of the company [Nombre 059] (formerly [Nombre 060]); Licenciados Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; Licenciado Juan Luis Vargas Vargas, as special judicial agent of Mr. [Nombre01 077], who is the president with the powers of a universal general agent without limit of sum for the company named [Nombre 061].; Licenciada Yamura Valenciano Jiménez, as defender of Messrs. [Nombre01 001] and [Nombre 022]; Licenciadas Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Ministerio Público; Licenciados Federico Morales Herrera and Erick Ramos Fallas, as defenders of Mr. [Nombre01 041]; and Licenciado Germán Calderón Lobo, as representative of the Instituto Costarricense de Electricidad.

**WHEREAS:** **I.-** The Criminal Tax and Public Function Trial Court of the Second Judicial Circuit of San José, through judgment Nº 167-2011, at 15:00 hours on April 27, 2011, agreed, by majority, as follows: “***A)*** ***Requalifications and incidental issues:*** ***A.1) Requalifications***: unanimously, the facts accused against [Nombre01 018] are requalified from the crime of Aggravated Corruption derived from Improper Bribery to the crime of Illicit Enrichment (Enriquecimiento ilícito); Likewise, the facts attributed to [Nombre01 063], considered by the prosecutorial representation as constituting the crime of Illicit Enrichment, are requalified to the crime of Receiving Stolen Goods (Receptación) provided for in Article 323 of the Penal Code. By majority, with the dissenting vote of Co-Judge Camacho Morales, the three crimes of Illicit Enrichment in material concurrence attributed to [Nombre01 006] are requalified to one crime of Illicit Enrichment. ***A.2)*** ***Statute of limitations defenses***: unanimously, the statute of limitations defense for the criminal action filed in favor of the accused [Nombre01 063] is upheld in relation to the crimes of Receiving Stolen Goods and Facilitation (Favorecimiento Real) provided for in Articles 323 and 325 of the Penal Code, and the statute of limitations defense for the criminal action filed in favor of [Nombre01 006] for one crime of Illicit Enrichment, as requalified, is rejected. ***A.3)** * By majority, with the dissenting vote of Co-Judge Camacho Morales, the statute of limitations defenses for the criminal action are rejected in favor of [Nombre01 033] for four crimes of Illicit Enrichment and in favor of [Nombre01 018] for one crime of Illicit Enrichment, as requalified. ***A.4)*** Unanimously, the defense of res judicata (cosa juzgada) formulated in favor of the accused [Nombre01 018] is rejected. ***A.5)** * By majority, with the dissenting vote of Co-Judge Camacho Morales, the objection for defective procedural activity (actividad procesal defectuosa) filed in defense of the accused [Nombre01 018] and requested for extensive application to the remaining accused, regarding 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, incidents, and defenses 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, [Nombre01 063] is acquitted of all penalty and liability for the crime of **RECEIVING STOLEN GOODS**, as requalified **,** and **FACILITATION** both to the detriment of the **ADMINISTRATION OF JUSTICE**; due to atypicality (atipicidad), [Nombre01 041] is acquitted of a crime of **PENALTY OF THE CORRUPTOR** in relation to the crime of AGGRAVATED CORRUPTION through IMPROPER BRIBERY attributed to [Nombre01 018] and requalified to the crime of **ILLICIT ENRICHMENT** to the detriment of the **PROBITY IN PUBLIC OFFICE**. Likewise, unanimously, in application of the principle of In dubio pro reo, [Nombre01 033] is acquitted of all penalty and liability for four crimes of **ILLICIT ENRICHMENT** to the detriment of **PROBITY IN PUBLIC OFFICE**, and [Nombre01 001] is acquitted of a crime of **SIMULATION FRAUD (FRAUDE DE SIMULACIÓN)** in relation to the transfer of the property registered under Registry Number [Valor 001], Sub-Registry, through deed Nº 244 executed before notary public Nombre01 to the detriment of the **INSTITUTO COSTARRICENSE DE ELECTRICIDAD** and **COLLECTIVE AND DIFFUSE INTERESTS. B.2)** By majority, with the dissenting vote of Co-Judge Camacho Morales, [Nombre01 041] is declared a jointly liable perpetrator (coautor responsable) for four crimes of **PENALTY OF THE CORRUPTOR** for **AGGRAVATED CORRUPTION** in the mode of **IMPROPER BRIBERY,** in material concurrence (concurso material), in relation to [Nombre01 022], [Nombre02 001], **[Nombre01 064]** and [Nombre01 068], 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, in application of 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 completed pre-trial detention (prisión preventiva) has been deducted. The absolute disqualification (inhabilitación absoluta) requested by the 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 Co-Judge Camacho Morales, [Nombre01 028] is declared a jointly liable perpetrator for three crimes of **PENALTY OF THE CORRUPTOR** for **AGGRAVATED CORRUPTION** in the mode of **IMPROPER BRIBERY** in relation to [Nombre01 022], [Nombre01 001] and [Nombre01 064] 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 completed pre-trial detention has been credited. The absolute disqualification requested by the 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 Co-Judge Camacho Morales, [Nombre01 046] is declared a jointly liable perpetrator for one crime of **PENALTY OF THE CORRUPTOR** for **AGGRAVATED CORRUPTION** in the mode of **IMPROPER BRIBERY** regarding [Nombre 068], and the perpetrator (autor responsable) of one crime of **PENALTY OF THE CORRUPTOR** for **PROPER BRIBERY (COHECHO PROPIO)** in relation to [Nombre 064] **,** both to the detriment 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 that may have been served has been deducted. The absolute disqualification requested by the Prosecutor's Office is rejected due to the lack of concurrence of the legal prerequisites for its application. **B.5)** By majority, with the dissenting vote of Co-Judge Camacho Morales, **[Nombre01 022]** is declared the perpetrator of the crime of **AGGRAVATED CORRUPTION** in the mode of **IMPROPER BRIBERY** to the detriment of **PROBITY IN PUBLIC OFFICE**, imposing the penalty of **FIVE YEARS OF IMPRISONMENT,** which must be served in the place and manner determined by the respective penitentiary regulations once the completed pre-trial detention has been deducted. Likewise, he is **DISQUALIFIED** for a period of **TWELVE YEARS** from obtaining and exercising public jobs, positions, or commissions. **B.6)** By majority, with the dissenting vote of Co-Judge Camacho Morales, **[Nombre01 001]** is declared the perpetrator of one crime of **AGGRAVATED CORRUPTION** in the mode of **IMPROPER BRIBERY**, to the detriment of **PROBITY IN PUBLIC OFFICE**, and one crime of **SIMULATION FRAUD** regarding the vehicles transferred through deed Nº 267 before notary public Nombre03 to the detriment of the **INSTITUTO COSTARRICENSE DE ELECTRICIDAD** and **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 that may have been served has been deducted.

He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, positions, or commissions. B.7) By majority, with the dissenting vote of co-judge Camacho Morales, [Name01 006] is declared the responsible perpetrator of a crime of ILLICIT ENRICHMENT, reclassified Name02, committed to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to TWO YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, with credit for the pretrial detention (prisión preventiva) served. Likewise, he is disqualified for a period of TWELVE YEARS from obtaining and holding public employment, positions, or commissions. As the legal requirements are met, he is granted the BENEFIT OF CONDITIONAL EXECUTION OF SENTENCE for 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 co-judge Camacho Morales, [Name01 033] is declared the responsible instigator of the crime of AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY (COHECHO IMPROPIO) to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, once the pretrial detention (prisión preventiva) served has been deducted. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, positions, or commissions. B.9) By majority, with the dissenting vote of co-judge Camacho Morales, [Name01 018] is declared the responsible perpetrator of a crime of ILLICIT ENRICHMENT, reclassified Name02, committed to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to TWO YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, with credit for the pretrial detention (prisión preventiva) served, without considering the concurrence of the legally established requirements to merit the benefit of conditional execution of said sanction. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, 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 [Name 041] is deemed withdrawn, who expressly waived any claim, and the civil plaintiff is ordered to pay costs. C.1.2) No ruling is made on the substantive right discussed in relation to the civil actions filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the civil defendants [Name01 028], [Name 022], [Name 033], [Name 063], [Name 018], [Name 001], [Name 006], [Name 058]. and [Name 060]. C.1.3) The civil lawsuit brought by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the aforementioned defendants is resolved without a special order as to costs for either party. C.1.4) Once the judgment is final (firme), the lifting of the attachments (embargos) decreed in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD regarding the cited civil lawsuits is ordered. C.1.5) The request for a condemnation of damages caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments (embargos) executed to guarantee the results of this process is rejected. C.2) Unanimously, regarding the CIVIL ACTION FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA) filed by the PROCURADURÍA GENERAL DE LA REPÚBLICA: C.2.1) No ruling is made on the substantive right discussed in relation to the civil actions brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA against the civil defendants [Name01 041], [Name 028], [Name 022], [Name 033], [Name 063], [Name 018], [Name 001], [Name 046], [Name 006], [Name 058]., [Name 053]., [Name 057]., [Name 056]., [Name 055]. and [Name 054].. C.2.2) The civil lawsuit brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA regarding the aforementioned civil defendants is resolved without a special order as to costs for either party. C.2.3) Upon the finality (firmeza) of the judgment, the lifting of the attachments (embargos) decreed in favor of Name03 in relation to the civil lawsuits filed is ordered. C.2.4) The request for a condemnation of damages caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments (embargos) executed to guarantee the results of this process is rejected. D) Confiscation (comiso) and declaration of instrumental falsehood: By majority, with the dissenting vote of co-judge Camacho Morales, the confiscation (comiso) of the following assets is ordered in favor of the State: D.1) The properties registered in the Public Property Registry: Partido de Guanacaste under the Folio Real system, Registration Number (Matrícula) N° [Value 002], Sub-registration 000; Partido de Guanacaste under the Folio Real system, Registration Number (Matrícula) N° [Value 003], Sub-registration 000; Partido de Guanacaste, Folio Real system, Registration Number (Matrícula) Nº [Value 005], Sub-registration 002; and Partido de Heredia registered under the Folio Real system, Registration Number (Matrícula) Nº [Value 006], Sub-registration 000. D.2) Of the Investment Certificate N° 62445223 that was renewed in certificate Nº 62736757 for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five céntimos, in the name of Name01 Name03. D.3) Of the sums of fifty-eight thousand dollars and eighty-one thousand four hundred dollars, the economic backing of checks N° 11387-9 from Banco Interfin and N° 201-722218 from Bank of New York Delaware, both drawn to [Name01 064] and deposited to the order of this court. D.4) Of the shares of [Name01 028] in the company [Name01 057]. owner, among others, of the properties registered in the Public Registry under the Folio Real system, Registration Number (Matrícula) Nº [Value 007], Sub-registration 000 and Registration Number (Matrícula) Nº [Value 009], Sub-registration 000. D.5) Of the vehicles make Name04 Grand Vitara XL, license plate Nº [Value 010]; and make Name04 Jimny, license plate Nº []. D.6) The instrumental falsehood of public deed Nº 267 granted before notary public Name03 by [Name01 001] and [Name01 075] is declared, and therefore the transfer of assets arranged in said instrument by the convicts [Name01 076] 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 accepted and the precautionary measure of pretrial detention (prisión preventiva) is decreed against [Name01 028] and [Name01 001] for a period of eighteen months to be computed from April twenty-seventh, two thousand eleven, until October twenty-seventh, two thousand twelve, and against [Name01 041] 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 is due to the modification of the status held by the defendants [Name01 041], [Name01 028], and [Name01 001] before this process, Name02 as well as the nature and quantum of the sentence imposed on each of them, which constitutes a sufficient reason that, if at liberty, each of them would 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) Substitute 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 pretrial detention (prisión preventiva) substitute precautionary measures are imposed on the convicts [Name01 022], [Name01 033], [Name01 046], and [Name01 018]: a prohibition on leaving the country from April twenty-seventh, two thousand eleven, and until the judgment is final (firmeza del fallo), for which each convict must deposit their passport at the seat of this Court within twenty-four hours of the issuance of this resolution; and the obligation to appear before this Office on the twenty-seventh day of each month, extendable to the following business day if it is a non-business day, and a record must be kept where they sign as proof thereof. The described measures will be in effect from the reading of the operative part of the sentence and until the judgment is final (firmeza del fallo), with the warning that failure to comply with the established conditions or the indicated substitute precautionary measures (medidas cautelares sustitutivas) may result in the application of the pretrial detention (prisión preventiva) now relegated. F) Other relevant aspects: F.1) Costs of the process: unanimously, the costs of the criminal process are borne by the State. F.2) Personal costs (costas personales): unanimously, the costs of the process regarding the exercise of the criminal action are borne by the defendants. Given the proven financial solvency of the convicts [Name01 022], [Name 001], [Name02 046], and [Name02 006], who opted for legal advice from lawyers of 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 process. This amount is set at the sum of TEN MILLION COLONES, which covers their professional performance from their appearance until the issuance of this judgment, not Name02 the potential appeals and other proceedings required after its issuance. Said sum must be paid by each of the defendants to the Judicial Branch within fifteen days computed from the finality (firmeza) of the judgment, with the consequent attachment (embargo) and auction of their assets in the event of non-compliance with this obligation. F.3) Communications: by majority, with the dissenting vote of co-judge Camacho Morales, issue the pertinent communications regarding the prohibition on leaving the country for [Name01 022], [Name01 046], [Name01 033], and [Name02 018] to the Dirección General de Migración y Extranjería. Once this sentence is final (firme), the official letters shall be sent to the Tribunal Supremo de Elecciones regarding the absolute disqualifications of [Name01 022], [Name01 033], [Name 018], [Name 001], and [Name02 006] from holding public office by popular election, and to the Civil Service for the absolute disqualifications in the appointment to other public employment, positions, and commissions. Notify the Public Property Registry of the instrumental falsehood declared regarding the deed granted before notary public Name03. Send the communications to the Instituto Nacional de Criminología, the Sentence Execution Court, and the Judicial Registry for them to proceed accordingly. NOTIFY…” (F. 16,497 to 16,506 front, volume XXXIV).

II.- Against the foregoing ruling, appeals were filed by Dr. [Name01 033], in a personal capacity, as well as by his defense attorneys, Licenciados Rafael Gairaud Salazar and Cristian M. Arguedas Arguedas; Licenciado Hugo Santamaría Lamicq, as defense attorney for [Name 046]; Licenciado Mario Gonzalo Soto Baltodano, as president with powers of a general unlimited power of attorney of the company called [Name 050].; Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense attorneys for [Name 006]; Licenciado Mario Navarro Arias, as defense attorney for [Name02 028], Name02 as well as in his capacity as special judicial attorney for the civil defendants [Name01 053]., [Name 054]., [Name 055]., [Name 056]., [Name 057]., [Name02 058]. and [Name 028]; Licenciado José Miguel Villalobos Umaña, as private defense attorney for [Name 018]; the defendants [Name 001], [Name 028], [Name 041], and [Name 018], in a brief authenticated by Licenciado José Miguel Villalobos Umaña; Mr. [Name 018], in a brief authenticated by Licenciado Hugo Santamaría Lamicq; Licenciados Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial attorneys for the company [Name 059] (formerly [Name 060]); Licenciados Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; Licenciado Juan Luis Vargas Vargas, as special judicial attorney for Mr. [Name02 077], who is the president with powers of a general unlimited power of attorney of the company called [Name 061].; Licenciada Yamura Valenciano Jiménez, as defense attorney for [Name01 001] and [Name 022]; Licenciadas Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Public Prosecutor's Office (Ministerio Público); Name02 as well as Licenciados Federico Morales Herrera and Erick Ramos Fallas, as defense attorneys for [Name01 041].

III.- By resolution Nº 2014-1847, at 11:20 a.m. on November 21, 2014, the Third Chamber of the Supreme Court of Justice resolved the following: “THEREFORE. The following are declared without merit: 1) The first claim of the first section; first and second claims of the fourth section, all from the Appeal of the Public Prosecutor's Office; 2) The cassation appeal filed, personally, by the defendant [Name01 001]. The following grounds are upheld: Second of the first section; first of the second section; by majority, (Gómez Cortés, López Madrigal, Desanti Henderson and Sanabria Rojas), the second ground of the second section. Magistrate Cortés Coto dissents; the first, second and third of the third section; the second, third, fourth, fifth, sixth, seventh and ninth of the seventh section; first and second of the eighth section. For lack of interest, the fourth, fifth, sixth, seventh and ninth claims of the sixth section are not heard. The sole admitted cassation ground of the appeal filed by the Procuraduría General de la República is declared with merit. Consequently, judgment 2012-2550 is annulled, the Criminal Sentence Appeals Court, except for the provisions regarding the crimes of simulation fraud, against [Name01 001] and the matters concerning the acquittal of the defendant [Name01 033], for four crimes of Illicit Enrichment, as set forth in point A) of the operative part of the appealed judgment. A remand (reenvío) is ordered for a new proceeding, so that the criminal sentence appeals filed by the defendants may be resolved, except for that which has become final here. The remand (reenvío) to the Trial Court, on the civil matter raised by the Procuraduría General de la República, will be carried out taking into account all the facts of the Civil Action for Damages (Acción Civil Resarcitoria) brief, presented by that party…” (F. 176,528 front and back, volume XLIII).

IV.- Because the cassation body ordered a partial remand (reenvío) to the sentence appeal stage, this court must rule again on the following appeals that were filed against the resolution of the Criminal Court of the Treasury and Public Office of the Second Judicial Circuit of San José:

• A)Appeals filed by [Name01 033].
• B)Appeals filed by Licenciado Rafael Gairaud Salazar, private defense attorney for [Name 033].
• C)Appeals filed by Licenciada Yamura Valenciano Jiménez, in her capacity as defense attorney for [Name02 022] and [Name 001].
• D)Appeals filed by Licenciados Wilson Flores Fallas and Nazira Merayo Arias, as defense attorneys for [Name 006].
• E)Appeal filed in a personal capacity by the defendants [Name01 001], [Name01 028], [Name 041], and [Name 018].
• F)Appeals filed by Licenciado José Miguel Villalobos Umaña, defense attorney for [Name 018], and by the defendant [Name 018] in a personal capacity.
• G)Appeals filed by Licenciado Mario Navarro Arias, defense attorney for [Name 028].
• H)Appeals filed by Licenciados Federico Morales Herrera and Erick Ramos Fallas, defense attorneys for [Name 041].
• I)Appeals filed by Licenciado Juan Luis Vargas Vargas, special judicial attorney for [Name 077], who is the president with powers of a general unlimited power of attorney of the company called [Name 061].

**V.-** 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 appeals.

**VI.-** That the pertinent legal prescriptions have been observed in the proceedings.

Drafted by Judge Patricia Vargas González and, **CONSIDERANDO:** **I.-** As explained in this chamber's resolution No. 2015-695, at 11:00 a.m. on May 12, 2015, the Third Chamber of the Supreme Court of Justice having ordered the remittal (reinstatement of the appeal phase) through resolution No. 1847-2014, at 11:20 a.m. on November 21, 2014, it falls to this panel of the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José to resolve the following challenges:

• A)Appeals filed by [Name 033], personally, with the exception of point d) of the third section of the appeal against the sentence, titled *“Impediment to the exercise of my material defense”* (f. 172,524 to 172,526 front, volume XXXIX).
• B)Appeals filed by attorney Rafael Gairaud Salazar, private defender of [Name 033].
• C)Appeals filed by attorney Yamura Valenciano Jiménez, in her capacity as defender of [Name 022].
• D)Those filed by attorneys Wilson Flores Fallas and Nazira Merayo Arias, in their capacity as defenders of [Name 006].
• E)Appeal filed personally by the defendants [Name 001], [Name 028], [Name 041], and [Name 018], in a document authenticated by attorney José Miguel Villalobos Umaña.
• F)Appeals filed by attorney José Miguel Villalobos Umaña, defender of [Name 018], and by the defendant [Name 018] personally, in a document authenticated by attorney Hugo Santamaría Lamicq, except for the last two claims filed in both challenges (specifically, the fourteenth and fifteenth grounds), as they are related to the issue of the civil action for damages.
• G)From the appeal filed by attorney Yamura Valenciano Jiménez, in her capacity as defender of [Name01 001], the first, second, and sixth grounds will be heard, the latter only regarding the penalty imposed on [Name01 001] for the crime of aggravated corruption in its modality of improper bribery.
• H)Appeals filed by attorney Mario Navarro Arias (deceased), in his capacity as defender of [Name01 028], and only regarding the criminal aspects of the challenged judgment. Therefore, the last three grounds of the appeal against the sentence that he filed in his capacity as special judicial representative of the civil defendants [Name01 053], [Name 054], [Name 055], [Name 056], [Name 057], [Name 058], and [Name01 028] in their personal capacity are excepted, in which he questions the trial court's decision on the civil aspects of the case (see, f. 172,262 to 172,270, volume XVIII).
• I)Appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, in their capacity as defenders of [Name 041].
• J)Appeals filed by attorney Juan Luis Vargas Vargas, in his capacity as special judicial representative of Mr. [Name01 077], who is the president with powers of a general unlimited attorney-in-fact of the company named [Name 061].

**II.-** As explained in the aforementioned resolution No. 2015-0695, the Third Chamber of the Supreme Court of Justice, upon ordering the remittal to this procedural phase, <span style="text-decoration:underline">expressly</span> excluded a series of matters from this appellate court's review, specifically, matters related to the civil aspects of the proceeding; the simulation frauds attributed to [Name01 001]; and matters concerning the acquittal of defendant [Name02 033] for four crimes of illicit enrichment. In addition to the above, this appellate court proceeded to exclude other aspects that, having not been appealed in cassation, became final, that is, the definitive dismissal (sobreseimiento definitivo) issued in favor of [Name01 046] due to his death and the ruling on the confiscation of the vehicle with license plate No. []. Finally, the Third Chamber also made other decisions regarding a series of topics related to the present case, which, although not specified in the operative part of its resolution, must be complied with by this office, as the sentence is a logical-legal unit, and must be understood integrally as such. For example, in resolving the issue of the statute of limitations, the Third Chamber expressly stated: *“[…] the acquittal sentence for the statute of limitations of criminal action 2012-2550, issued in the record by the Criminal Sentence Appeals Court, is annulled, ordering the remittal for a new proceeding as legally appropriate, <span style="text-decoration:underline">this Chamber clearly establishing that, in this case, the criminal action is not time-barred</span>.”* (F. 176,431, volume XLIII, the underline is not from the original). Another example is found in what was agreed regarding piece of evidence No. 588. According to the cited Chamber, this piece of evidence is lawful because its procurement did not require the order or endorsement of a Costa Rican judge. For this reason, it annulled the second-instance sentence issued by this appellate court (with a different panel) insofar as it acquitted the defendants, and ordered this office *“… <span style="text-decoration:underline">to conduct a new comprehensive examination of this evidence together with the remaining evidence of the case</span>.”* (F. 176,448 front, the emphasis is ours). As can be observed, the cassation body not only ruled on these topics, <span style="text-decoration:underline">but expressly conditioned the analysis to be performed with the second-instance remittal</span>. Apart from those already mentioned, there are other aspects on which the Chamber also ruled on the merits, with preclusive and declaratory force, definitively ending the discussion generated around them. These are decisions that, it is reiterated, although not included in the operative part of the cassation sentence, cannot be ignored, as requested by some of the parties during the oral hearing held at the end of September of this year, given that they have been issued for the specific case by the reviewing body that resolves in the final instance. This means that we are not facing the dilemma of whether to accept or not the criteria expressed by the Third Chamber, but rather the duty to respect the limits that jurisdictional body established for the remittal to the second instance, understood as the duty to comply with the decisions it made with preclusive and declaratory effect, and which therefore, this appellate court cannot ignore or reverse. Note that in a system of challenges like ours, where there are two appeals and in which the Public Prosecutor's Office can also appeal, it is not unusual for the Third Chamber, upholding a cassation appeal filed by that party, whether due to contradictory precedents, or for non-observance or erroneous application of a substantive or procedural precept, to annul the resolution issued by the criminal sentence appeals court and confirm that of the trial court (thus, e.g., sentences No. 2014-00416 at 10:18 a.m. on March 13, 2014; No. 2013-00992 at 9:52 a.m. on August 9, 2013, 2013-0956 at 2:36 p.m. on July 31, 2013, and 2013-01814 at 4:03 p.m. on December 3, 2013, among others). Likewise, as happens in this matter, the Third Chamber, despite annulling the appeals court sentence and validating some of the arguments put forth by the trial court, may consider it necessary to order the remittal to this procedural stage (e.g., because there are unresolved claims pending), which in no way authorizes this office to disregard the issues that have already been resolved and defined. This is because the remittal to the second instance does not entail a new examination in the broadest sense of the term, but rather an examination that is necessarily linked to the sentence, in this case of cassation, that annulled the previous resolution. Therefore, the remittal must be carried out within the limits established by that cassation ruling. Things being thus, and independently of the criteria this appellate court may have regarding the aspects the Chamber resolved and defined on the merits, it is concluded that with respect to these, we are not in a position to disagree, nor to issue a different pronouncement. Next, a summary of those decisions that condition or limit the remittal to the second instance ordered by the Cassation Chamber will be made.

**III.- Regarding what was resolved and defined (with declaratory effect) by the Third Chamber for the specific case**: In resolution No. 1847-2014 cited above, the Third Chamber ruled on various topics that it is necessary to recapitulate, namely:

• 1)It concluded that the criminal action was not time-barred for any of the defendants.
• 2)It considered piece of evidence No. 588 lawful, as *“… the order or endorsement of a Costa Rican Judge was unnecessary…”*. This chamber does not disregard that the aforementioned criterion differs from that adopted by the Third Chamber, with a different panel, in case file No. 04-005356-0042-PE, specifically, in resolution No. 499 at 11:45 a.m. on May 11, 2011. In that ruling, by majority vote, the nullity 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 (Name06.) was declared, as well as the evidentiary elements derived from it. However, the divergence that may exist between the aforementioned sentences is a situation that the cassation body must eventually resolve, and what corresponds to this appellate court is to examine the claims made by the parties based on what was decided by the Chamber in the specific case, namely, that piece of evidence No. 588 is lawful. Finally, it is important to add here that the document presented by [Name01 158] to this court on August 27, 2015 (cfr. 176,925 front, volume XLIV) in which, based on Article 29 of the Law on Recording, Seizure and Examination of Private Documents and Intervention of Communications, No. 7425 of August 9, 1994, he revoked the consent he had given for the use of the banking information of the company [Name01 215], is of no importance, as the Third Chamber's decision to deem the referred evidence valid was not based on the cited consent, making the decision taken by the right holder completely inconsequential.
• 3)The Third Chamber also declared pieces of evidence No. 543, 544, and 545 lawful, which had previously been declared unlawful by this Criminal Sentence Appeals Court, with another panel (f. 176,473 back, volume XLIII).
• 4)It dismissed the existence of a defect of lack of correlation between accusation and sentence regarding the conviction imposed on [Name01 006], as well as the erroneous application of Article 346, subsection 3) of the Penal Code (f. 176,499 back).
• 5)It concluded that the penalty for the corrupter does not require proof of an effective agreement of wills between the active subject and the public official to be corrupted, the description of the functional act requested by the corrupter (f. 176,502 back), or the verification of the conducts supposedly carried out by the public officials intended to be corrupted (f. 176,508 and 176,512 front).
• 6)It considered that the accusation filed by the Public Prosecutor's Office did describe what the functional act requested from [Name01 001] was (f. 176,502 back to 176,503 back).
• 7)It concluded that the verb *to give* contemplated in the type of the penalty for the corrupter applicable to the specific case may include the actions of *offering* and *promising* (f. 176,507 back and 176,512 front and back); and, finally, 8) It indicated that Article 346, subsection 3) of the Penal Code contemplates a series of actions that do not contradict the provisions of Article 26 of Law No. 6872, on illicit enrichment of public servants of June 17, 1983, in force until the enactment of Law No. 8422, against corruption and illicit enrichment in public office of October 6, 2004, hence the existence of one did not imply the exclusion or repeal of the other (f. 176,513 back to 176,515 back). Having made the foregoing clarifications, we will proceed to resolve the filed appeals.

**IV.-** Given the existing relationship and for procedural economy, this chamber will address jointly and in the first place, the second ground of the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Name01 041], as well as the second section, point D.-, and the third section, point A.-, of the appeal against the sentence filed by defendant [Name02 033], personally. **Appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Name01 041]. Second ground. Non-observance and/or erroneous application of procedural law. The challenged sentence is essentially based on unusable evidence (unlawful evidence).** The court erroneously applied Articles 22, 23, and 24 of the Code of Criminal Procedure and, consequently, failed to observe the provisions of Articles 96, 180, 181, and 182 of the Code of Criminal Procedure: *“… The foundation of the judgment is erroneous in the determination of the factual framework because it relies, to support the core aspects of the declaration of criminal liability of [Name01 041], on information obtained through the violation of due process. The total annulment of the judgment is warranted (as the same unusable information served as an essential basis for the conviction of other defendants) and remittal so that a court, composed of judges other than those who have already intervened in this case, conducts a new debate where due process is respected…”* (F. 173,091 front). As a grievance, they state that the judgment illegally declared the criminal liability of [Name01 041], as it relied on unusable evidence, specifically, a witness who testified at trial under a procedural advantage derived from a defective procedural activity. According to their statement, if the motions filed by various parties during the debate had been resolved according to law, the aforementioned testimonial evidence would not have been produced. According to the private defenders *“… in the case of co-defendant [Name01 064], the Public Prosecutor’s Office disrespected essential regulations by deciding and negotiating with him and his legal representation the suspension of the exercise of the criminal action - to which the Prosecutor's Office was bound as a consequence of the principle of mandatory prosecution - and, by transmitting information in an omitted and incomplete manner, caused the jurisdiction to incur a procedural error (which also did not strictly follow the procedures imposed by law) so that it ordered the admission of the requested opportunity criterion. Because such is the purpose of the judicially authorized opportunity criterion in this case, [Name01 064] appeared before the sentencing Court and, under the protection of a procedural advantage improperly promised, testified at trial and provided information that the sentencing body essentially used to declare the criminal liability of [Name01 041] and of other convicts in this case. The challenged Sentence, then, is contrary to law precisely because it substantially uses the information provided by the “collaborating defendant” to support in essence the imposed conviction…”* (F. 173,092 and 173,093 front). After citing several excerpts from the sentence, where reference is made to the testimony of [Name01 064], the defenders state that it was essential evidence, as the trial court itself acknowledges in considerando XI.-, point A). From here, the appellants present a series of arguments to explain why they consider the granting of an opportunity criterion in favor of [Name01 064] and the subsequent use of the information he provided to be contrary to law: *“… Description of Procedural Actions: FIRST: On January 31, 2006, the person who appeared as a collaborating co-defendant during the debate, Mr. [Name01 064], 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, according to the provisions of Article 22, subsection b) of the Code of Criminal Procedure (as evidenced by piece of evidence 776, legitimately incorporated in its due time into the Debate). Similarly, see what is recorded in the challenged judgment at folio 1653. SECOND: In accordance with said agreement, the Public Prosecutor’s Office undertook to request in favor of the collaborating defendant [Name01 064] that his prosecution be totally dispensed with in case 04-006835-647-PE. The foregoing conditioned on the collaborating defendant [Name01 064] providing at trial - as indeed happened - a statement similar to the one 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 conditioned on the information provided by [Name01 064] allowing the participation - among others - of the defendants in this same case, [Name01 041], [Name01 078], [Name02 033], and [Name01 046], 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, petitioned 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 petition (which we understand also forms part of piece of evidence 776), the Prosecutor's Office includes in the section called Statement of Facts, following the numbering from 1 through 116, a series of facts and actions that supposedly constitute the object of the investigation. We assert the foregoing because on folio 1 of the referred petition the Prosecutor's Office records: “As a result of that investigation, the facts described below are taken as established.” From which it is inferred that these are the facts being investigated in case 04-6835-647-PE. FOURTH: Likewise, the file on the Application of the Opportunity Criterion also contains the petition 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 defendant [Name01 064]. In said document, the Deputy Prosecutor makes a summary reference to the facts under investigation in that case (specifically on folios 2 and 3 -folios 33 and 34 of the File- and on folio 8 -39 of the File). 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 Statement of Facts, exactly the same content the Prosecutor's Office describes in the section of 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 is included, called On the Merits, in which the Judge points out the nature of the requested opportunity criterion and examines the legal requirements for its admissibility. As the resolution is almost completely lacking in due justification, it suffices to point out that it refers, as facts or conducts appreciated and assessed for determining the greater reproachability, to the conduct of [Name01 064] and the conduct of [Name01 033]. Additionally, the jurisdictional decision refers to the facts investigated in this case in relation to [Name01 041], [Name01 078], [Name01 046], and [Name01 033], which are clearly linked to the contracting of the 400,000 cellular telephone lines that was widely discussed in the oral and public trial that preceded the issuance of the Sentence now being challenged…”* (F. 173,096 to 173,099 front). For the appellants, the Prosecutor's Office must provide the jurisdictional authority with complete information so that the latter, in turn, can control the legality of the granted opportunity criterion, especially to assess whether the reproach that can be made against the collaborator is of lesser magnitude. Now, the factual framework provided by the prosecutorial representation to Attorney Ana Gabriela Sánchez Arroyo, in the petition dated May 30, 2007, through which it requested the application of the opportunity criterion for collaboration in favor of defendant [Name01 064], did not fully correspond to the facts being investigated at that time, since by then, there was evidence linking [Name01 064] to other questionable acts: *“… Indeed, by that point in the investigation, several statements given by co-defendant [Name02 064] 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 Agency; among others, Report 297-DEF-540-04/05 in which, in the point identified as 4.8 point 12., the following is established: “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, in the name of Mrs. [Name02 080], which he stated he received from [Name 046], supposedly, for collection efforts made before [Name02 091], at the request of both the latter and [Name01 033]. On this point, it is worth noting that in other of his statements, [Name01 064] had briefly referred to other sums of money received from [Name01 046]: a check for U.S. $4,000.00 and a certificate for U.S. $9,062.50. Likewise, he mentioned other royalties for U.S. $110,207.00 and U.S. $29,833.95, received from [Name01 083]., and [Name 085]., through [Name 068].” Likewise, the mentioned report states in point 5.11 that, although [Name01 064] maintained that the premium he would receive would range between 1.5% and 2% of the total contract for the 400,000 cell lines, less expenses, the expert report concludes that part of the sums transferred by [Name 058]. to [Name01 064] were also related to other contracts signed by ICE, for the purchase of [Name 091] fixed-line switches. It is important to highlight - continuing with this same line of exposition - that [Name01 064] would have declared in September 2004 that he received improper payments for his participation as a Director of ICE in the approval of the La Joya Hydroelectric Project concession.

Also in October 2004, [Nombre01 064] confessed before the Prosecutor's Office to having received improper monies or payments in relation to the company [Nombre 090]. In November 2004, he also declared regarding the receipt of certain improper monies. Likewise, in May 2005, he stated that he had received monies from Holding and Valores corresponding to payments for improper acts linked to the exercise of his position as a public official. It is clear, then, that by the date on which the Prosecutor's Office applied to the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José for the application in favor of [Nombre01 064] of the principle of opportunity for collaboration, the representation of the Public Prosecutor's Office had sufficient information that allowed it to fully know about the possible participation of the collaborating defendant [Nombre01 064] in other criminal acts different from those linked to the contract for the 400,000 cell lines. However, this information, referring to acts distinct from those directly linked to the contract for the 400,000 lines, was concealed from the Judge. This assertion finds its support in the reading of the account of facts contained in the request filed by the Prosecutor's Office for the approval of the principle of opportunity negotiated with [Nombre01 064], as well as in the very account of facts contained in the resolution issued on June 1, 2007, which approves the aforementioned legal institute. We consider it legitimate to affirm that the other mentioned acts in which [Nombre01 064] participated, distinct from those related to the mentioned ICE contract, were not reported as was proper to the jurisdictional authority. But it was precisely the information that became known during the Debate on the agreement for the application of the principle of opportunity, together with the statements of Licenciada Maribel Bustillo Piedra, who, in her capacity as Prosecutor of the Miscellaneous Crimes Unit of the Public Prosecutor's Office, set down in writing in the brief dated July 25, 2008, which, together with the resolution of 1:40 p.m. on May 18, 2009, appear added to case file 08-000032615-PE (photocopies of which are attached to this Cassation Appeal and we now request be brought ad effectum videndi and as evidence for the decision on this cassation ground), that, alongside the statements spontaneously made by Licenciada Criss González to the public and which at some point were reported during this Debate because they are related to what was the subject of negotiation in the principle of opportunity agreed with [Nombre01 064], allow the conclusion without a doubt, and without it being debatable, that what was opportunely negotiated by the Prosecutor's Office with the accused [Nombre01 064] encompasses the exercise of criminal prosecution regarding the other criminal acts investigated and that are distinct from those related to the contracting of the 400,000 cell phone lines...” (F. 173.101 to 173.104 front, the transcription is literal). The appellants cite what Licenciada Bustillo Piedra indicated in the referred-to brief, namely: “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 [Nombre01 064] that criminal prosecution be dispensed with, not only for the act related to the money unduly received from the company [Nombre 091] on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand GSM mobile lines, but for the entirety of the criminal prosecution under case No. 04-006835-647-PE, which encompasses this and the other acts that the complainant mentions, since all are part of the investigation with the indicated unique number, so much so that the defendant was investigated for all those acts and well before the application of this agreement, on September 30, 2004.” (F. 173.104 and 173.105 front). The challengers add that from the brief dated July 25, 2008, a photocopy of which they attach and which is contained in the case file that has been offered ad effectum videndi, what is indicated in this ground is extracted. The agreement between the Public Prosecutor's Office and [Nombre01 064] was to dispense with the exercise of criminal prosecution in relation to all the acts known and investigated by the prosecutor's office at the time that negotiation took place, that is, as of January 31, 2006. However, when jurisdictional authorization was requested for the application of the principle of opportunity, the authorities failed to report the acts under investigation in case file number 04-6835-647-PE. Attorneys Ramos and Morales claim to seek to demonstrate to this chamber: that those acts were more than those described in the account originally provided by the prosecutorial representation when formulating the request for the application of the principle of opportunity; and that said omission is contrary to the Political Constitution and the Criminal Procedure Code, because the prosecutor's office was obligated to provide the judicial body with all the information necessary to decide. The fact that the information was incomplete constitutes a defect that in turn allowed the approval of the principle of opportunity that favored [Nombre01 064]. The private defense attorneys add that these same procedural actions of the Public Prosecutor's Office, together with the resolution of 9:51 a.m., on June 1, 2007 (namely, the one that agrees to the application of the principle of opportunity in favor of [Nombre01 064] and orders the suspension of the exercise of the public criminal prosecution), could not constitute the prerequisite that would validate the jurisdictional decision contained in the resolution of 1:30 p.m. on September 2, 2010, issued interlocutorily during the debate and that legitimized, by a majority decision, the declaration made by [Nombre01 064] at trial, a declaration that is contrary to what is stated in Article 96 of the Criminal Procedure Code, since, they reiterate, the advantage offered to [Nombre01 064] as a consequence of the jurisdictional approval for the application of the principle of opportunity did not conform to legal provisions. After making an extensive transcription of what was said by the a quo on the subject (see folios 173.107 to 173.113 front, volume XL), the appellants conclude that the trial court considered it unnecessary to determine whether the public criminal prosecution that should have been exercised in relation to all the criminal acts committed by and attributable to [Nombre01 064] was illegitimately abandoned by the prosecutor's office, due to the effects of the principle of opportunity unduly granted. This is despite the impact that circumstance had on establishing the legitimacy of [Nombre01 064]'s declaration as a source of information, which was later used to convict [Nombre01 041]. The trial court, therefore, turned a blind eye to the reality presented to it and allowed the consolidation of a series of undesirable effects of the defective procedural act. In a differing opinion, which the appellants share, Judge Camacho Morales expressed himself. After transcribing what this professional indicated, the challengers set out what, from their perspective, are the main conclusions of the dissenting vote: “1. Incomplete request formulated by the Prosecutor's Office for the Judge to approve the application of the principle of opportunity in the specific case and under the terms indicated by Article 22, subsection b) of the Criminal Procedure Code; 2. Jurisdictional resolution lacking proper grounds that approves the application of the principle of opportunity and justifies the declaration at trial of [Nombre01 064]; 3. Declaration rendered at trial by co-defendant [Nombre01 064] unduly protected by the promise of a procedurally legally impossible advantage. 4. Use of information coming exclusively from illicit evidence to essentially support the factual framework used to convict—among others—[Nombre01 041]...” (F. 173.131 and 173.132 front). For the defense, based on the foregoing, the following is imperative: to grant the present appeal; to declare that the request for the application of the principle of opportunity contained in the brief at folio 1 and following of the respective file (Evidence No. 776) constitutes a defective procedural act; to declare illegitimate, for being essentially sustained on defectively verified procedural acts, the resolution of 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, signed by Licenciada Ana Gabriela Sánchez Arroyo; to dimension the effects of such declarations and also conclude that the trial court's resolution of 1:30 p.m. on September 2, 2010 is illegitimate, insofar as it authorized the production of [Nombre01 064]'s testimony at trial. Likewise, it should be declared that the judgment should not have relied on the declaration rendered in the adversarial proceedings by [Nombre02 064] and that its annulment is appropriate. They request that the ground be upheld and the ruling annulled, ordering remand to the trial stage for a new proceeding pursuant to the law. Finally, it is important to note that of the evidence offered by the appellants to demonstrate the defect they reproach, case file 08-000032-615-PE, followed against [Nombre08], where they were accused of the alleged commission of the crime of breach of duties, was admitted at this procedural stage, as were the photocopies provided from it. Appeal of judgment filed by [Nombre02 033]. Second Section. Disagreement with the incorporation and assessment of evidence. Gross errors in the incorporation and assessment of evidence by the majority vote due to lack of precise and detailed determination of facts proven by the trial court. The majority vote suffers from lack of grounds, contradictory grounds, and disregard of the rules of sound rational criticism regarding evidentiary means and elements of decisive value. As grounds for the claim, Articles 142, 184, 361 subsection b), 363 subsection c), 458, and 459 of the Criminal Procedure Code are cited. D. Assessment of the declaration of the confessed [Nombre02 064] as a suspect. The majority vote recognized that the declaration of [Nombre01 064] is not evidence; however, it accepted his word without any evidence or indication supporting it on substantive points necessary to link [Nombre01 033] to the illicit act. For this reason, the grounds of the ruling are illegitimate, violating the rules of logic, experience, and psychology, and are based on illegal evidence. It causes irreparable harm by illegitimately taking the declaration of a confessed defendant as true, the veracity of which is not corroborated by any other evidence. It requests that the ruling be annulled and his acquittal be declared. The trial court recognizes that, in light of the defendant's declaration, it is necessary to examine it in the context of other evidentiary elements. This is the line expressed by the Constitutional Chamber in resolution No. 12090-09. Now, what happens is that, when assessing [Nombre01 064]'s word, the judges forget the foregoing. While it is true that it is not a matter of corroborating every aspect of the account, a set of converging indications regarding the core of the confessed defendant's declaration is required. To give credibility to [Nombre01 064], the trial court affirms that: a) the subsequent payments confirm the procuration. For the appellant, even admitting their existence, these payments could have been for other concepts (loans, donations without consideration, illicit enrichment, payments for acts already completed, for prior debts, etc.). That is, their existence proves nothing about the crime. b) There was a criminal plan by [Nombre01 091], the existence of which relies on [Nombre01 064]'s word. The appellant considers that this says nothing about his participation as a procurer. [Nombre01 064] acknowledged having accepted [Nombre01 091]'s offer before meeting with [Nombre01 033] (a meeting whose existence [Nombre01 033] also calls into question). Thus, what [Nombre01 064] may have reflected upon upon arriving home is something personal, and furthermore, what [Nombre01 064] stated was that he might need help to fulfill the plan, not that he required convincing. Both [Nombre01 064] and the witnesses were consistent in saying that [Nombre01 033] never requested anything from a director or official of the ICE regarding the bidding for the 400,000 GSM lines, or in relation to any purchase or contract. Finally, although [Nombre01 064] said he had sought out the appellant in case he eventually needed his help, he never stated that he had asked him for it, or at least, that he had informed him of the conditions they supposedly would have asked him to meet. On the other hand, it is absurd to understand that the meeting between [Nombre01 033] and [Nombre01 064] occurred just because all the alleged participants were in Costa Rica (according to the entry and exit records of [Nombre01 064], [Nombre01 041], [Nombre01 078], and [Nombre02 033]). Indeed, his defense counsel demonstrated that [Nombre02 078] did not leave the country on a Saturday at the end of 2000 or at the beginning of 2001, as [Nombre02 064] indicated. Furthermore, the trial court distorted what the challenger's defense said. It was never stated that [Nombre01 033] was not in the national territory. What Attorney Gairaud said was that the meeting was probably said to have occurred at the end of November or the beginning of December because those were dates when his client was in Costa Rica. The appeal states that the judges incurred a "blind credibility" towards [Nombre01 064], despite all the inconsistencies he incurred: "... it is even more unjustified when the lady judges were eyewitnesses to [Nombre01 064]'s declarations regarding the unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Nombre01 064] and corroborated by the OIJ… The bank accounts in colones and other possible accounts of [Nombre01 064] in his name or that of his wife were not investigated because the Public Prosecutor's Office did not request it,… Nor were the other possible crimes of [Nombre01 064] investigated even though the Public Prosecutor's Office was informed of them, as the prosecutors did not request that they be investigated… The lady judges had knowledge of all this, but this did not affect their total credibility, impervious to any contradiction or error in [Nombre01 064]'s word. I could be argued that these were acts not judged and therefore could not be used by the court, as it would breach the principle of innocence. But why then, against me, is it argued that I did not prove a different nature for the supposed payments made by [Nombre01 064]? When it is against me, does the principle of innocence not apply, but only for the confessed defendant [Nombre01 064]?" (F. 172.437 and 172.438 front). Judge Camacho Morales, in his dissenting vote, considers that a prior promise by the alleged corrupters was not demonstrated and further explains how the dates on which this promise was placed are not compatible with the tasks supposedly entrusted to [Nombre01 064]. After citing several excerpts from the judgment (both from the dissenting vote and the majority vote), the appellant affirms that the trial court accepted [Nombre01 064]'s lies even though, to do so, it had to violate the rules of sound rational criticism. Regarding the principle of opportunity granted to [Nombre01 064], the appellant questions that the judges refused to rule on the legality and judicial approval of that principle. Likewise, although the judgment argued that [Nombre01 064] wanted to cooperate from his first declaration in September 2004, it did not take into account that in that account he described acts completely contrary to those he accepted in May 2005, when he reached an agreement to apply an abbreviated procedure, acts that are practically identical to those included for the agreement on the principle of opportunity. Nor did it take into account that the way in which [Nombre01 064] was treated in that first declaration is different from the way in which the other defendants were treated. This makes it appear that, from the very first moment, [Nombre01 064] had an arrangement with the Public Prosecutor's Office. The majority vote indicates that although [Nombre01 064] went unpunished for his actions, that was not the result of their decision, but of the legislative approval of the institute and the approval granted by other judges in that regard. [Nombre01 033] criticizes the previous assertion, believing that the trial court had the duty to rule on the approval of the principle of opportunity and refused to do so. The judges naively believe that [Nombre01 064] collaborated motivated by supposed patriotic reasons, to defend morality in public office, and affirm that if he remained unpunished it is because of the complaint filed against him by attorneys Fernando Apuy and Freddy Coto, which prevented continuing with an abbreviated trial that implied prison for [Nombre01 064]. But this is not so. The case file shows that the negotiated sentence of 4 years had already been served through the house arrest imposed on [Nombre01 064]. Furthermore, it is observed that Apuy and Coto never opposed the abbreviated procedure; rather, it was the intransigence of [Nombre01 064]'s defender that prevented reaching an agreement between the parties (Evidence No. 309). The challenger adds that the Public Prosecutor's Office, instead of partially dispensing with criminal prosecution, limiting itself to not accusing [Nombre01 064] for the acts related to the four hundred thousand lines, totally dispensed with criminal prosecution, including other crimes confessed by him. The majority vote said nothing about the Public Prosecutor's Office's refusal to investigate those other crimes, which were verified through the accounting reports of the O.Nombre09. Nor was anything said regarding the circumstances in which those acts occurred, or the multimillion-dollar sums that, after the principle of opportunity, remained in the possession of [Nombre02 064]. The tendency to favor this person in everything has been clear. He reiterates that the trial court did not rigorously assess this declaration. It took it as the only truth, setting aside lies and contradictions. He affirms that the a quo convicted him in advance and showed animosity towards him, when it alluded to a duty of loyalty that prevails in criminal organizations; when it prevented him from questioning an expert; and when, without foundation, it said that [Nombre01 064] was a person of trust of the appellant. He insists that the tendency to favor [Nombre01 064] was clear, for example, when it was affirmed that the latter did not accept further appointments in the government, or when they refused to hear declarations about his other crimes. The trial court also confused the relationships of the ICE with the Presidency of the Republic. The purchase or lease of equipment is a task of the ICE, a detail that leaves pages and pages of argument in the majority vote without support. The allusion to breakfasts, lunches, and meals given by [Nombre01 091] to public officials, as hundreds of companies do daily, at most demonstrates that [Nombre01 064] received money from [Nombre01 091], but that says nothing about the way in which [Nombre01 064] agreed with [Nombre01 091], or about the meetings in [Nombre01 094] or at the appellant's house. On page 1,679 of the judgment, it is held that, according to [Nombre01 064], to receive the gift it was necessary to involve all the Nombre10 of the ICE's board of directors and that, for him, this was difficult to achieve. However, this is contradictory to what was said by [Nombre01 064] himself and that the judges include on page 1,675 of the ruling, in the sense that what [Nombre01 091] requested was that the bidding process take place, that it was not necessary for [Nombre01 064] to speak with anyone, it being sufficient that the bidding process not be aborted. It is also contradictory to what the collaborating defendant said about the meeting at the appellant's house, since at this meeting he did not even mention the three tasks that [Nombre01 091] entrusted to him, nor did he request any help from [Nombre01 033]. On the other hand, the appellant affirms that, contrary to what was stated in the judgment, it was demonstrated that officials from various technical and administrative instances of the ICE and its seven directors participated in the process to migrate to GSM. Thus, it is not proper to attribute that migration to the actions of two directors conspiring with [Nombre01 091], especially if that decision was already clear from May and June 2000 and was announced on October 6 by the executive presidency, months before the alleged meetings of [Nombre01 091] with those two directors took place. Now, on pages 1,162 and 1,163 of the trial ruling, the trial court tries to explain this, affirming that once the announcement was made by [Nombre01 095], it makes sense that in the memorandum sent by [Nombre01 098] to [Nombre 041] on November 10, 2000, he states that although that announcement is positive, it was necessary to maintain pressure and not allow Ericsson's and Lucent's interests to continue being favored, as it seemed that the ICE was seeking a new purchase of 200,000 lines to expand the current ones, with TDMA technology. According to the judgment, this explains why the corrupters did not consider the announced technology migration for December 2001 a done deal. In response, the appellant questions how a basic precautionary recommendation not to neglect things and to maintain pressure allows the conclusion that the promise took place, disregarding that the direct purchase of TDMA had been suspended and the technology migration to GSM had been declared because it was more advantageous. The trial court says that even as of December 2000, TDMA technology continued to be contracted, thus the defense is incorrect in saying that as of October of that year the migration had already occurred. Faced with this assertion, the challenger counters that no analysis was made of how contracting went from 100% TDMA technology to only 33% and GSM technology was introduced, and furthermore, it was convenient to satisfy the accumulated demand. Another sign of the "subconscious in the strange reasoning of the majority vote," the appellant indicates, can be seen on pages 1,686 and following, where it is stated that [Nombre01 091]'s payments to [Nombre01 064] and the transfers from [Nombre01 064] to [Nombre01 033] are proof both of the meetings and of the agreement to commit a crime that arose in those encounters. Such a conclusion is absurd, the appeal indicates, as it does not derive from the premises: “… claiming that these movements of resources confirm the meetings in [Nombre01 094] and at my house is logically the same as claiming that if [Nombre02 064] robs from the ICE, and then [Nombre01 091] gives a gift to [Nombre01 064] and [Nombre01 064] transfers some resources to me, that would mean that [Nombre01 064] met with [Nombre01 091], who offered him money to rob the ICE, and then with me, who procured him to do so. Once again I must exclaim: Good heavens!” (F. 172.448 front). In this line of thought, he notes that between February and March 2001, when the process for the bidding for the 400,000 GSM cell lines is already underway, due to the Comptroller General's Office's non-acceptance of the direct purchase of the 600,000 cell lines that the ICE had agreed to the previous December, steps are taken to accelerate a direct purchase of 160,000 GSM lines, to meet demand. According to the majority vote, that direct contracting represented for [Nombre01 091] a blank check issued by the ICE, because it solidified the migration and saved him from participating in a public tender. From this, the trial court concludes that [Nombre01 064]'s action was not contrary to the commitments assumed, as the defense argued. Faced with this, [Nombre01 033] questions why, two months earlier, when, according to [Nombre01 064], he agreed with [Nombre01 091], the agreement did not contemplate a direct purchase but rather a bidding process. The majority vote also said that it was because [Nombre01 068] did not concur with his vote to favor the direct purchase of the 160,000 GSM lines that the agreement between [Nombre01 068] and [Nombre01 091] occurred. So, asks the appellant, given that [Nombre01 064] did not attend the first meeting where that direct purchase was approved, would that not be why [Nombre01 091] made him the offer? On this point, the appellant insists on a "powerful subconscious predisposition" of the trial court, aimed at drawing conclusions contrary to logic and common sense. As a final example of the above, he cites page 1,703 of the ruling, where, despite recognizing that the gift received by [Nombre01 064] is related to contracts signed by the ICE for the purchase of fixed-line switches, the trial court understands that the payments for fixed-line switches are for the migration to GSM. He concludes his presentation repeating that the majority ruling relied on the declaration of [Nombre01 064], a person who took advantage of the impunity afforded by the principle of opportunity and an activity full of irregularities by the Public Prosecutor's Office, an organ that did not investigate other crimes committed by him. He emphasizes that [Nombre01 064] accepted the proposal from the very first moment, just as he had been doing in other cases that they did not want to investigate, and that he never required to be persuaded by another person. He adds: "There is no way to classify the acts of which [Nombre01 064] accuses me and the facts described by the accusation as procurring aggravated corruption by reason of an improper bribery, which renders my conduct atypical and determines a violation of the substantive law of the penal code, which demands a dismissal or acquittal in my favor..." (F. 172.450 and 172.451 front).

Third Section. Disagreement with the legal grounds. A. Principle of opportunity. The majority vote is based on illegal evidence, specifically on the declaration rendered by [Nombre01 064] as an alleged confessed collaborating defendant, protected by a principle of opportunity illegally requested and approved, and on factual actions by the Public Prosecutor's Office which, without judicial approval, illegitimately granted him impunity for other crimes recognized by himself. Regarding the grievance, he explains that a legal institute was accepted that was applied irregularly, with a very serious violation of the legal system, and without which the case is untenable. He requests that the declaration rendered by [Nombre01 064] in the debate be annulled, and consequently, since the judgment lacks support, that the conviction be annulled and he be acquitted of the crime of which he is accused. After noting that several norms were violated when the principle of opportunity was granted, he indicates that the only thing that exists against him is the declaration of [Nombre01 064], which is not evidence. Furthermore, in the video, it can be seen that it is [Nombre01 064]'s defender who dictates the answers he must give in the debate. The lady judges, in a vote prior to the judgment (at 1:30 p.m. on September 2, 2010), had already declared themselves incompetent to resolve the protest for defective procedural activity that the defense raised against the processing given to the principle of opportunity. In contrast, Judge Camacho Morales, in the minority, said that the issue was indeed controllable, concluding that in this matter the principle was granted irregularly (cf. the judgment, dissenting vote, pages 1,981 to 1,987).

With an extensive transcription of what was stated in that dissenting vote, the appellant emphasizes that the resolution granting it lacked proper reasoning; that the issue of the lesser reproach attributable to the collaborator benefiting from the criterion, compared to the accused who is harmed by its application, was not adequately assessed; and that the crimes that went uninvestigated and were confessed by [Nombre01 064] and corroborated by the Nombre12 should have been evaluated (crimes which, moreover, were vainly requested to be investigated by the prosecutors and were hidden from the judge who approved the opportunity criterion). The appellant asserts that it was during the trial that they first had access to what was negotiated on the occasion of the criterion, determining that it only included the facts relating to the 400,000 GSM lines, which is contradictory to what was stated by Prosecutor Maribel Bustillo when requesting that the complaint filed against Nombre08'anese for breach of duties and personal favoritism, for not investigating other payments made to [Nombre01 064], be "withdrawn." On that occasion, the prosecutor acknowledged that the criterion encompassed criminal acts distinct from the contracting of the 400,000 lines. Now, in her arguments on the matter, Prosecutor Greysa Barrientos stated that to compare the reproach of the collaborating accused and the other defendants, only the case concerning the 400,000 GSM lines should be taken into account, a thesis adopted by the majority vote. Prosecutor Criss González made statements to the press, indicating that the criterion did not include other acts committed by [Nombre01 064], which is a simple reading of the document in which the Public Prosecutor's Office requested judicial authorization to apply the mechanism, the resolution of the judge who approved it, and the agreement signed with [Nombre01 064]. Judge Camacho Morales also noted the impropriety of the monetary arrangements made by the Public Ethics Prosecutor's Office, as [Nombre01 064] was legitimized to keep millions of dollars in sums. Judge Camacho's calculation also fell short, because it did not take into account other income that [Nombre01 064] confessed but which the Public Prosecutor's Office refused to investigate, meaning that the State itself has allowed him to keep more than one and a half million dollars. The appellant requests that the nullity of the judgment be decreed and a dismissal (sobreseimiento) be ordered, or an acquittal.

**V.- The claims are granted**: To make this exposition as clear as possible, this chamber will divide the analysis into several sections, namely: 1) Competence of the trial court to verify compliance with the legal requirements contemplated for applying an opportunity criterion. 2) Examination of the opportunity criterion granted to [Nombre01 064]. Defects present in its processing and in the resolution that authorized it. 3) Hypothetical inclusion of the conducts omitted by the requesting body when soliciting the opportunity criterion, and a new assessment of the reproach that can be formulated regarding the conducts attributed to [Nombre01 064], compared with those of other accused persons. Weighing of the arguments put forth by the trial court on this particular topic. 4) Credibility that can be granted to the statement of the collaborating accused.

**1) Competence of the trial court to verify compliance with the legal requirements contemplated for applying an opportunity criterion.** By majority and through a resolution issued at 1:30 p.m. on September 2, 2010 (cf. folios 13,676 to 13,736 back of volume XXVIII), the trial court refused to hear the protests formulated against the applied opportunity criterion, regarding its "propriety or impropriety" and the possible "successes or failures" of the authorizing resolution issued by the criminal judge. It involves a resolution—that of the trial court—which, being extremely lengthy, is not convenient to transcribe; however, it can be summarized as follows: *i)* The judge of the preparatory or intermediate procedure is the only one competent to exercise jurisdictional control over the application of the opportunity criterion [in particular, the one contemplated in subsection b) of numeral 22 of the Code of Criminal Procedure] and its decriminalizing effects. The application for its enforcement must be presented before the court of the preparatory or intermediate stage. Additionally, due to its complexity, once its application is authorized, the decriminalizing consequence is conditional upon the fulfillment of the suspensive condition, with the criminal judge subsequently tasked with evaluating the effectiveness of the collaboration and the definitive resolution of the matter. In the trial phase, the court must ensure the legality of receiving the collaborator's account and its assessment according to the rules of sound criticism (sana crítica). *ii)* The trial court lacks competence to issue a pronouncement on the implementation of the opportunity criterion, as it only hears the matter once the opening of the trial has been declared. The *a quo* assures that Nombre02 has been considered by the Third Chamber (Sala Tercera), as: *"...not even in cases where an opportunity criterion has not been processed in favor of a person who appears to testify at trial, has said cassation body deemed that it corresponds to the trial court to evaluate the prerequisites for its propriety, nor to issue such a pronouncement in substitution of the criminal judge, even abstracting from the trial judge's competence any assessment regarding the collaboration agreement (see resolutions No. 392-1999 and No. 795-2009 of the Third Chamber). Contrarily, in those cases, the indicated cassation body has determined that because control was not exercised by the criminal judge, it is not possible to hear the deponent at trial (e.g., votes No. 795-2009 and No. 1061-2008 of the Third Chamber), making it totally clear that the criminal judge is the sole competent authority to perform the referenced task."* (F. 13,681 front). Therefore, it cannot be intended that the trial court define the fate of an opportunity criterion that has already been resolved and based on which the statement of [Nombre01 064] was admitted at trial. *iii)* If the trial court decided to examine the decision that accepted the opportunity criterion to evaluate its decriminalizing effects, it would be assuming cognizance of a matter pending before another jurisdictional body, which is prohibited by Articles 11 and 155 of the Political Constitution and Article 4 of the Organic Law of the Judicial Branch, according to which judges must fulfill the duties imposed by law and not arrogate to themselves powers that have not been granted to them. Likewise, such a procedure would affect various principles and guarantees (legality, natural judge (juez natural), judicial independence, impartiality, and due process). The court cannot hear protests aimed at invalidating an opportunity criterion already granted without the legislator authorizing it to do so, to approve or reject prosecutorial requests to apply the criterion, to control the performance of the jurisdictional body tasked with that duty, or to hear, through an appeal, the objections of the parties against that decision of the criminal judge. The legislator also did not provide for vertical control in the case of this type of resolution, a situation justified by the Constitutional Chamber in resolution No. 12090-2009. It is the statement made by the benefited person, and not the resolution approving the criterion, that must be analyzed by the trial court and questioned by the parties. *iv)* Unlike what happens with other resolutions (e.g., the order to open trial, the denial of a request for dismissal (sobreseimiento), or the rejection of a "nullity incident") that are processed within the same proceeding, in the case of the opportunity criterion, an autonomous and diverse procedure is articulated in which its application, or lack thereof, is discussed (votes No. 1119-2005 of the Constitutional Chamber and No. 114-2006 and 404-2006, both from the Third Chamber). While the first cited decisions cannot be appealed, because their discussion in later stages of the process is feasible (what is known as horizontal control), in the case of the opportunity criterion, the dismissal (sobreseimiento) that may eventually be issued in favor of the collaborator can indeed be appealed. For this reason, maintaining that the absence of an appeal against the resolution that authorized the opportunity criterion opens the door to a kind of horizontal control at trial is incorrect, since the trial court is not competent to resolve that issue, given that vertical control is provided for in relation to the dismissal (sobreseimiento) that may eventually be issued. *v)* Neither the trial court nor the cassation body can control the legality of the decriminalizing effects of the opportunity criterion, as this concerns the criminal judge. A different matter is the taking of evidence and its assessment, which is the competence of the trial court and its controller. The court that authorized the criterion is only subject to the legal system, and its decision cannot be contingent upon a later assessment by the trial court when the legislator has not provided for it in that manner; *vi)* The impartiality of the trial court may be affected if it evaluates the prerequisites for the propriety of the opportunity criterion. The accusation is what describes the charged facts and is the basis upon which the trial must be conducted. The judging is carried out in relation to specifically accused persons, not others with a different status (Arts. 361, 363, and 365 of the C.P.P.). For this reason, the collaborator does not appear as an accused in the case, but as a source of evidence. Their statement must be assessed individually and jointly with the other pieces of evidence, but not to decide on their criminal liability, nor to contrast that liability with that attributed to the other accused. This is an additional reason why the legislator decided to remove the assessment of the mechanism's decriminalizing effects from the competence of the trial court, insofar as it cannot hear a mechanism already ordered by another jurisdictional body, applied to someone who is not accused in the process under examination. *vii)* With convoluted wording, the lower court argues that the opportunity criterion is not technically a means of proof. Its nature is not evidentiary, but decriminalizing. When the collaboration commitment consists of testifying during the trial, it is only then that the statement assumes the character of a piece of evidence. The channel through which these manifestations are received by the trial court is the means of proof, which for technical reasons can never be the procedure followed for the approval of the criterion itself. In other words, the procedure carried out to obtain the statement does not constitute a means of proof. Nombre02 interprets the *a quo*'s reading of resolution No. 6808-2002 of the Constitutional Chamber, when it affirms that the trial court is competent to exercise the legality control of the aforementioned instrument, only to review the concurrence of the legal requirements for the application of the mechanism, but not to decide whether said criterion should have been granted or not, nor other issues related to the decriminalizing effects deriving from it. While the constitutional court points out that this control corresponds to the trial court, the truth is that apart from numeral 24 of the Code of Criminal Procedure providing the contrary, in that particular case the issue addressed by the Constitutional Chamber was the provisional nature of the effects of the collaboration agreement and not the matter related to the competent body to decide on the discontinuance of criminal prosecution. It also involves an isolated pronouncement, prior to two diverse and analogous ones (No. 12090-2009 and 1119-2005), which do not confer similar scope to the control that the trial court must carry out, apart from the fact that the latter two votes, together with 2662-2001, are binding. *viii)* The procedure related to the application of the opportunity criterion is independent of the process in which the collaborator must render their statement. Moreover, it does not involve a definitive and irreproducible act, nor does it imply the taking of advance evidence (as happens, e.g., with raids, or communications interception), since the collaborator's statement must be given during the trial. That is why it can be assessed by the trial court. Similarly, in the mentioned cases, the legality of the elements of conviction is not made dependent on the issuance of a prior judgment on the attributed conducts, or the guilt of the implicated persons—as does happen with the criterion—hence the treatment granted to it by the legislator is different. *ix)* It is not the court's place to examine, to confirm or discard, the resolution of the criminal judge that authorized the application of the criterion (namely, the resolution issued at 9:51 a.m. on June 1, 2007, visible at folios 41 to 89 of the separate file where it was processed). *x)* The application of the opportunity criterion is regulated. As for the scope of the jurisdictional control, whether it is only regarding compliance with the formalities provided by law, or also encompasses requirements of a value-based or substantial nature—e.g., verifying the concept of lesser reproachability—the lower court understands that the cited control is limited to the verification of formal or legal requirements, excluding value-based ones, without the jurisdictional decision being able to substitute that of the Public Prosecutor's Office, nor invade its power regarding the convenience or opportunity of the measure, nor examine aspects inherent to the accusatory function. In support of its stance, it cites several resolutions of the Constitutional Chamber, e.g., numbers 2662-2001, 12090-2009, 6808-2002, and 1119-2005, Nombre02 as respective rulings of the Third Chamber, specifically, No. 795-2009—in which it was affirmed that the control covers substantial assumptions—and No. 450-2004, in which the criterion expressed by the Constitutional Chamber was adopted, which the trial court shares. The *a quo* adds that, in line with the adopted democratic model, essential functions cannot be concentrated in a single body, but must be distributed and their exercise controlled. From that perspective, it could not be admitted that the criminal judge's criterion prevail over that of the Public Prosecutor's Office regarding the investigation and the exercise of criminal prosecution. Now, regarding the control that the trial court must carry out, it is insisted that it must be that corresponding to the evidence received at trial. The deposition of the collaborator, given live in the adversarial proceeding, in the presence of the parties, is what has the status of evidence. The trial court's control over the procedure followed to authorize the opportunity criterion is only to the extent that it is the antecedent for the described appearance, for since it is not a means of proof, the court must confine itself to verifying the formal aspects detailed by the Constitutional Chamber, that is, the existence of the prosecutorial request, the hierarchical authorization, and the approval by the judge. *xi)* Even though the Third Chamber has proceeded to assess the conducts of the alleged beneficiary and of the accused against whom they testify, in none of the cases has it attributed such a task to the trial court, something that in any case it could not do without compromising essential guarantees. It cites in this regard resolutions No. 1061-2008 and 795-2009. In the first, the trial court considered that there were irregularities in the jurisdictional advance of a deponent, which is why it stripped it of all evidentiary efficacy. Faced with this, the Chamber deemed that although the criterion had not been granted in that particular case, the prerequisites for it were also not met, as the collaborator's participation was fundamental. In response to this, the majority vote maintains that the cassation body at no time argued that it was the trial court's task to assess the propriety of the cited criterion, or to contrast the conducts of the deponent and the accused. The Chamber carried out that analysis based on the self-incriminating statement itself, an exercise that the trial court cannot perform before the judgment and which is different from the scenario where, according to that same cassation body, that examination should have been carried out, namely, when the intention is to receive a self-incriminating account without observing the respective guarantees. In the second vote, the Third Chamber affirmed that the trial court should have limited itself to pointing out the non-existence of the jurisdictional approval of the opportunity criterion, without it being its task to learn of the collaboration criterion, qualify it, and much less invoke for that purpose the content of the evidence taken before hearing the deponent's account. This matter is fundamental, because a habeas corpus was filed in favor of the collaborator, resolved by the Constitutional Chamber in vote No. 6808-2002, in which it was deemed proven that to declare the described agreement illegal, the court argued that the liability possibly attributable to the petitioner would be similar to that of other accused persons and that the information she could provide would not be determinant for the outcome of the process. The *a quo* considers the minority position expressed in that judgment No. 6808-2002 to be central, since it explains that the trial court was barred from anticipating the result that the accusation would have; establishing the authorship corresponding to the so-called "crown witness" when it has not yet ruled on the accusation in which other authors and co-authors of the act are cited and from which the collaborator is excluded; engaging in speculations about the outcome of the action that the Public Prosecutor's Office has not pursued; and basing the rejection of the criterion on an assessment of evidence and facts not contained in the accusation. According to Mr. Fernando Cruz Castro, magistrate who subscribes to that minority position, it is only after having received the evidence at trial that the sentencing court can determine if the collaborator's action is less reproachable than the one it facilitated its resolution and if their collaboration has been decisive. Based on this, the judges conclude that even though the Third Chamber has assessed and compared the conduct of the collaborator and those of the implicated parties to determine whether the opportunity criterion was well-granted or not (which in any case is questionable, since in those cases the beneficiary would not be on trial, against whom criminal prosecution has not even been pursued by the one who holds the power to do so), it involves a task that in cassation is indeed viable to carry out, firstly because it is performed *ex post* (relying even on the assessments of the trial court) and secondly because it does not compromise the impartiality of the jurisdictional body, as would happen if the lower court does it. They mention, by way of example, resolutions No. 737-2001 and No. 136-2003 of the Third Chamber, in which it was never indicated that the trial court must perform that analysis before issuing judgment, or that it is its place to control the decriminalizing effects of the mechanism. Furthermore, in cases where such prior jurisdictional control has not been exercised (No. 175-2003 and 114-2006, both from the Third Chamber), the only consequence derived from this has been that the statement could not be admitted, but not the requirement of verification of said examination by the sentencing court. Finally, in pronouncement 795-2009 of the Third Chamber, faced with the lack of compliance with the prescribed legal procedure and the non-existence of jurisdictional approval, it was stated that it is the task of the Public Prosecutor's Office to remedy those deficiencies and therefore, to seek the suspension of the trial while the matter is resolved, from which it is inferred that it is not the trial court that must perform the jurisdictional control and that those errors, as suggested by the Chamber, can even be corrected during the adversarial proceeding. *xii)* After reiterating that jurisdictional control over the application of this mechanism is limited to compliance with legal requirements, the majority vote points out that there is a third limitation for the trial court in the referenced control, namely, the duty to guarantee its impartiality. It understands that it cannot rule on the issue of the lesser reproachability of [Nombre01 064] without reasoning at the same time on the substantive right being discussed, or without comparing the conducts of those charged with that of the former, which Nombre05 anticipates the judgment on the facts. It refers again to the minority vote of resolution No. 6808-2002 of the Constitutional Chamber, in which Magistrate Cruz Castro specified that the court's impartiality would be weakened if it intervenes in prosecutorial powers, pronouncing on the eventual criminal liability of a person who, although benefited by an opportunity criterion, has not been accused. Therefore, they underline that the control that the trial court must carry out, different from that which the criminal judge who authorized the application of the mechanism had to carry out, is only to establish the legality of the appearance of the "collaborating declarant," verifying compliance with the legal requirements determined at the time of granting such authorization and which are described in numeral 22 of the Ritual Code, namely, that there is an express request from the Public Prosecutor's Office, that there exists hierarchical authorization to carry out the step, and that there exists jurisdictional approval, all of which are fully complied with in this case. The assessment of the statement is a separate matter. *xiii)* Regarding the lack of reasoning of the resolution that authorized the opportunity criterion, the trial court reiterates that it is not its place to decide whether the request for the opportunity criterion should have been admitted or rejected, nor whether decriminalizing effects should arise from it. It insists that it lacks standing to exercise control over the resolution of the criminal judge of reference, issued in observance of the guarantee of the natural judge (juez natural), in a process different from this one and regarding someone who is not accused in this case. It was the criminal judge whose responsibility it was to control the legality of the decriminalizing effects of the opportunity criterion; therefore, both out of respect for her independence—since the lower court lacks the competence to assess her performance and judge whether or not it conformed to legal prerequisites—and in application of the principles of impartiality and legality, which prevent arrogating an unforeseen task, it is not viable to hear the objections formulated by the defense and therefore, the only thing that can be analyzed is the legality of the criterion as an antecedent to the deposition of [Nombre01 064], determining that it was processed in a separate file, through a prosecutorial action that had the endorsement of the hierarchical superior, which was presented before the judge of the intermediate stage who exercised the respective jurisdictional control and approved it. *These reasonings analyzed, the undersigned consider that they are not acceptable.* The judges subscribing to the majority vote make an effort to separate the statement that [Nombre01 064] gave at trial from the procedure followed to apply an opportunity criterion in his favor; however, it is notorious that if this accused collaborated, it was for the purpose of fulfilling the pact he had made with the Public Prosecutor's Office. The expectation of obtaining impunity in relation to a series of criminal acts that, at least in principle, could be attributed to him, is what incentivized [Nombre01 064] to collaborate, waiving his right not to testify against himself (Article 36 of the Political Constitution) and the very state of innocence that protects him (Art. 39 of the Constitution). Therefore, we are talking about intrinsically associated procedural acts, where the realization and, of course, the legitimacy of one (the testimony, a term used in a non-technical sense as it is not offered under oath) is conditioned by the legality of the other (the agreement). It is not unknown that the statement of [Nombre01 064], as evidence, was produced at trial; however, this in no way modifies the conclusion set out above, since if that occurred, it was precisely because Nombre02 was contemplated in the negotiation, from which it originates and derives. Having clarified the foregoing, it is necessary to make some general reflections on the principles that underpin our criminal process and that are indispensable for establishing the scope of jurisdictional control over the application of opportunity criteria by the requesting body. We begin with an obvious point, namely, that both the agreement made by the Public Prosecutor's Office and the resolution that authorized it are acts that *are subject to the rule of law*. According to Article 11 of the Political Constitution, every public body, being a mere depositary of authority, *is obligated to fulfill the duties that the legal system imposes upon it, and it can furthermore only act to the extent permitted by it*. Article 39 of the same Constitution states that no one shall be made to suffer a penalty except for a crime, quasi-crime, or misdemeanor, sanctioned by prior law and by virtue of a final judgment issued by a competent authority, *after an opportunity has been granted to the accused to exercise their defense and through the necessary demonstration of guilt*. From both norms, not only the principle of legality regarding crimes and penalties is deduced, but also regarding the procedure, as gathered in the Code of Criminal Procedure (hereinafter C.Nombre09.) in its Article 1, when it states: *"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..."*. As can be seen, we are speaking of a provision that imposes the duty to respect procedural forms, not because these are valuable in themselves, but because they are destined to guarantee the rights of the parties, in particular those of the accused against whom criminal prosecution is pursued, and more specifically, against whom the so-called "crown witness" testifies. The majority vote states that the requirements contemplated in Article 22, subsection b) of the C.P.P.

are both substantive and formal, and that the criminal judge cannot control compliance with the former. This is a position that this appellate court does not share, because it [Nombre05] an indisputable breach of the aforementioned principle of legality. In general terms, two general models for the application of opportunity criteria can be identified. In one, opportunity is the rule, a guiding principle of criminal prosecution. As [Nombre13] points out, in this model, which is applied, for example, in the United States of America, the principle of legality is disregarded to such an extent that the foundations of the criminal justice administration system would be threatened if this principle were adopted, even partially: </span><span style=\"font-family:Arial; font-style:italic\">“…the force of that conclusion is so vigorous that the power of selection resides in the Public Prosecutor's Office (also in the police that interact with it in criminal prosecution) and is inherent to it, just as the acts of government of the Executive Branch are discretionary, based on the constitutional principle of separation of powers; the practical reason is also incontestable: with that weapon, the Public Prosecutor's Office governs the criminal process and its specific form (through tools that, in accordance with the pursued, allow it to vary the nature of the procedure, to abbreviate it: plea bargaining, guilty plea), and harmonize its possibilities of pursuing criminally with efficiency (number of cases and complexity), with the personal and material resources of the justice administration in general, within the framework of a concrete and direct strategy for the best and most effective application of the law.”</span><span style=\"font-family:Arial\"> ([Nombre13]. </span><span style=\"font-family:Arial; font-style:italic\">Derecho Procesal Penal</span><span style=\"font-family:Arial\">. Buenos Aires, Editores del Puerto s.r.l., 3rd reprint of the 2nd edition, 2004, p. 836). In the same vein, [Nombre14] notes that, in this scheme, the discretionary powers of the requesting body are of such magnitude that in practice </span><span style=\"font-family:Arial; font-style:italic\">“…it is the prosecutor who completely dominates the procedure. These powers are not limited to the possibility of freely withdrawing the accusation (prosecution), but also cover a wide spectrum of “intermediate” acts, so to speak, such as the prosecutor's power to propose a reduction in the charges on which the accusation has been based or that appear in the police summary; even the Public Prosecutor's Office can confer immunity, in compensation for having collaborated with the government in the investigation…”</span><span style=\"font-family:Arial\">. ([Nombre14]. “Facultades discrecionales del ministerio público e investigación preparatorias: el principio de oportunidad.” In: [Nombre13] (Comp.). </span><span style=\"font-family:Arial; font-style:italic\">El Ministerio Público en el proceso penal.</span><span style=\"font-family:Arial\"> Buenos Aires, Ad Hoc S.R.L., 1993, pp. 89-90). In legal systems where the principle of discretion in the exercise of criminal action prevails and not that of its mandatory nature, there is no problem in accepting that a defendant provides collaboration in exchange for obtaining certain benefits or rewards, for example, not being investigated or prosecuted for certain acts. Faced with this model, where the discretion of the requesting body is absolute, we find another characteristic of States that have adopted the European continental system and in which, in consideration of the principle of legality, the exercise of criminal action </span><span style=\"font-family:Arial; font-style:italic\">is a duty</span><span style=\"font-family:Arial\">. In this context, dispensing with the prosecution of a criminal act committed by a defendant who collaborates with the investigation, or suspending the exercise of the action already initiated, is not a decision free of controversy. So much so that while some consider that the collaborator must be criminally prosecuted and can only have their sentence mitigated or be exempted from it, for others (and the Costa Rican Code of Criminal Procedure adopted this position) it is legitimate to exclude the exercise of criminal action. Regarding the first position, [Nombre15] points out: </span><span style=\"font-family:Arial; font-style:italic\">“The reward for “procedural repentance,” that is, the reward derived from the collaborative counter-conduct of the guilty party in the investigation of the criminal act, in the abstract, can have a merely procedural significance in those legal systems in which, as occurs in Common Law States where the principle of opportunity in criminal action governs, translating into the possibility of not exercising criminal action or even, once initiated, suspending it. However, in States where the continental system of Law governs, in which the exercise of criminal action is mandatory, the reward for the procedural collaboration of the guilty party must be substantiated in substantive criminal law, through specific sentence mitigations or even exemptions from it, albeit after a criminal process in which the guilt of the repentant is determined.”</span><span style=\"font-family:Arial\"> ([Nombre15], Ignacio Francisco. </span><span style=\"font-family:Arial; font-style:italic\">El \"colaborador con la justicia\": aspectos sustantivos, procesales y penitenciarios derivados de la conducta del \"arrepentido\"</span><span style=\"font-family:Arial\">. Spain, Dykinson, 2004, p. 29. ProQuest ebrary. Web. 10 November 2015</span><span> </span><span style=\"font-family:Arial\">, p. 43). Regarding the second posture and, specifically, the Costa Rican case, [Nombre16] indicates: </span><span style=\"font-family:Arial; font-style:italic\">“In accordance with what is established by the German procedural ordinance (arts. 153 et seq.), the Model Code of Criminal Procedure for Ibero-America (arts. 230 et seq.), the Argentine Criminal Procedure Code project of 1987 (art. 15), and the Guatemalan Criminal Procedure Code project (art. 10), it is admitted in certain clearly predetermined cases that the accusing entity, with the authorization and supervision of the jurisdictional body, may dispense totally or partially with criminal prosecution. The principle of legality will continue to prevail in the exercise of criminal action; however, the introduction of the principle of opportunity in some clearly defined cases, under judicial control, allows for a significant rationalization of criminal prosecution, [Nombre17] the intervention of state repression in cases where it is not really justified. As in the previous Code, in the current one, the guiding principle for the exercise of public criminal action is that of mandatory prosecution. However, as a novelty, the cited Code establishes the principle of opportunity, by virtue of which the Prosecutor may request from the respective Court the suspension or archiving of the preliminary proceedings, if any of the pre-established legal criteria apply to the case. Thus, Article 22 provides that the representative of the Public Prosecutor's Office, with prior authorization from the hierarchical superior, may request that criminal prosecution be dispensed with, totally or partially, that it be limited to one or several infractions or to some of the persons who participated in the act …”. </span><span style=\"font-family:Arial\">(HOUED VEGA, Mario. </span><span style=\"font-family:Arial; font-style:italic\">El proceso penal en Costa Rica</span><span style=\"font-family:Arial\"> . San José, Corte Suprema de Justicia, 2000, n.p., available at: http://biblioteca.icap.ac.cr). Ultimately, although the Costa Rican legislator contemplated the principle of mandatory prosecution for criminal action (thus, art. 289 C.P.P.), it also provided </span><span style=\"font-family:Arial; font-style:italic\">an exhaustive list of scenarios</span><span style=\"font-family:Arial\"> in which it is plausible to order something different, hence it is a </span><span style=\"font-family:Arial; font-style:italic\">regulated opportunity</span><span style=\"font-family:Arial\">. In the case of subsection b) of Article 22 of the C.P.P., which contemplates the case of the so-called </span><span style=\"font-family:Arial; font-style:italic\">crown witness or repentant</span><span style=\"font-family:Arial\">, the application of the opportunity criterion is conditioned upon the fulfillment of a series of requirements: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">i)</span><span style=\"font-family:Arial\"> that the prosecutor requesting to dispense totally or partially with criminal prosecution acts with prior authorization from the hierarchical superior; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> that it is a matter of organized crime, violent criminality, serious crimes, or cases of complex processing; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> that the defendant collaborates efficiently with the investigation, providing essential information to prevent the crime from continuing or others from being perpetrated, to help clarify the investigated act or other related ones, or provides useful information to prove the participation of other defendants; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iv)</span><span style=\"font-family:Arial\"> 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; text-decoration:underline\">In this matter, the trial court, faced with a clear norm such as Article 22 of the C.P.P., performs an unnecessary exercise of interpretation to give it a content it does not have</span><span style=\"font-family:Arial\">. Despite the fact that the provision does not distinguish between “formal” and “substantive” requirements, the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> concludes that judicial control can only pertain to compliance with the former and that, therefore, it is not appropriate to examine whether the collaborator's conduct is less reprehensible than the punishable act whose prosecution it facilitates. In holding the above, it also recognizes, albeit without saying so expressly, that the requirement is not such, since the requesting body can act with absolute discretion, which is unacceptable in a criminal process like ours, governed by the principle of legality and in which it is insisted, by express provision of the legislator, </span><span style=\"font-family:Arial; text-decoration:underline\">the application of any opportunity criterion is subject to the judge verifying compliance with </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">all</span><span style=\"font-family:Arial; text-decoration:underline\"> the formalities contemplated in numeral 22 C.P.P.</span><span style=\"font-family:Arial\">. At this point in the exposition, it is essential to differentiate between </span><span style=\"font-family:Arial; font-style:italic\">the principle of opportunity</span><span style=\"font-family:Arial\"> reflected in art. 22 cited </span><span style=\"font-family:Arial; font-style:italic\">supra</span><span style=\"font-family:Arial\"> and </span><span style=\"font-family:Arial; font-style:italic\">the legal requirements for its application</span><span style=\"font-family:Arial\">, also described in that norm. One thing is the granting of a sphere of freedom to the requesting body so that, based on its prosecutorial policy, it chooses the matters in relation to which it deems it appropriate to dispense with or limit the exercise of criminal action, and another, quite different, are the requirements demanded by art. 22 to materialize that pretension and within which is contemplated, for what is relevant here, the lesser reproach towards the collaborating defendant. Controlling strict compliance with these is the responsibility of the judge, which in no way [Nombre05] an invasion of the functions granted to the Public Prosecutor's Office, since the discretion granted to that public body is regarding the selection of the cases, the defendants, and the crimes with respect to which it </span><span style=\"font-family:Arial; text-decoration:underline\">requests</span><span style=\"font-family:Arial\"> the application of the opportunity criterion, it being the case that upon this request, the jurisdictional body shall be the one to </span><span style=\"font-family:Arial; text-decoration:underline\">decide</span><span style=\"font-family:Arial\">, after verification, as already stated, of the observance of </span><span style=\"font-family:Arial; font-style:italic\">the legal requirements</span><span style=\"font-family:Arial\"> - hence why it is spoken of as a regulated opportunity. In this context, the division made by the trial court of the requirements contemplated in Article 22 subsection b) C.P.P. is completely unfounded, since both those it calls </span><span style=\"font-family:Arial; font-style:italic\">substantive or evaluative</span><span style=\"font-family:Arial\"> (namely, the lesser reproach that must correspond to the collaborator's conduct) and those it calls </span><span style=\"font-family:Arial; font-style:italic\">formal</span><span style=\"font-family:Arial\"> (express request from the prosecution with prior authorization from the hierarchical superior and judicial approval), </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">are legal and formal requirements</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> (this to the extent that these are </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">formalities</span><span style=\"font-family:Arial\"> described in the legislation), indispensable for the application of the institute to proceed and whose verification has been entrusted to the judge. In summary, we are talking about two different issues. On one hand, </span><span style=\"font-family:Arial; font-style:italic\">the opportunity</span><span style=\"font-family:Arial\"> - the sphere of discretion of the requesting body in the selection of matters where it requests the application of the criteria - and on the other, the requirements that the legal system provides for that application to take place. Just as the Public Prosecutor's Office is free to determine when it is opportune to dispense with or limit criminal prosecution in exchange for obtaining the collaboration of a defendant, without anyone, public body or not, being able to force it to make an agreement if it does not wish to, it is up to the judge to corroborate that in the cases selected by the requesting body, each and every one of the requirements contemplated by the legislator have been satisfied. Having clarified the above, we find that in this matter, the complaints against the opportunity criterion applied to [Nombre01 064] do not focus on the first aspect - in fact, no one disputes that the prosecution was free to choose [Nombre01 064] to the detriment of other defendants - but on the second, that is, on compliance with the requirements to materialize that pretension, an extreme that is subject to judicial control. Regarding the body that must exercise that control, although in principle it must be the criminal judge, since the request must follow the procedure established for the conclusion of the preparatory procedure (art. 22, last paragraph C.P.P.), nothing prevents the trial court, or other bodies that hear the matter as a result of a challenge, from assuming that task. And indeed, in addition to the examination that the criminal judge must carry out, aimed at determining the appropriateness and application of the criterion, we also have the control that </span><span style=\"font-family:Arial; font-style:italic\">a posteriori</span><span style=\"font-family:Arial\"> must be exercised by the trial court, aimed at determining if it is appropriate to receive the statement of the repentant, just as the control that the appellate court and the cassation chamber itself could exercise, with the purpose of establishing whether that statement can have legal and evidentiary effects in relation to the subject against whom it is declared. Therefore, the control carried out by the criminal judge does not exclude that which other jurisdictional bodies may do, whether ex officio or at the request of a party. Regarding the latter, note also that the Code of Criminal Procedure indicates that absolute defects, like relative ones that have not been validated (arts. 177 and 178 C.P.P.), </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">must be remedied</span><span style=\"font-family:Arial\">, a task that must be carried out </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">without retracing the process to periods already precluded</span><span style=\"font-family:Arial\"> (art. 179 of the same legal body), except in the cases expressly provided for, for example, a referral ordered in cassation. From this, the general rule is extracted that, in the case of absolute defects or non-validated relative defects, the legal operator has </span><span style=\"font-family:Arial; font-style:italic\">a duty</span><span style=\"font-family:Arial\"> to amend them - the norm is preceptive in nature - and this must be done, save for the exceptions also contemplated by the legislation, </span><span style=\"font-family:Arial; font-style:italic\">without retracing the process to stages already completed</span><span style=\"font-family:Arial\">, which necessarily implies that the complaint against a defective act can be replicated in multiple procedural phases. Regarding this mechanism, [Nombre18] points out: </span><span style=\"font-family:Arial; font-style:italic\">“Regarding the procedure in the NCPP we can say, grosso modo, that defective procedural activity is susceptible to being claimed before the Intermediate Procedure Court. It is at this stage that all aspects related to matters not remedied in the preparatory stage must be resolved, [Nombre11] that have not been validated by the inaction of the parties (arts. 15 and 317 subsection a. NCPP), and in case of not finding a positive response, said defects can be claimed in debate via the incidental route</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> (art. 342 NCPP), and as a last alternative they can be invoked in cassation or review when dealing with aspects that imply a violation of constitutional guarantees… In cases that refer to procedural defects, it is required as an admissibility requirement that the party has made a timely protest or has requested the remedy, with the exception of absolute defects…”</span><span style=\"font-family:Arial\"> ([Nombre18]. “La actividad procesal defectuosa.” In: </span><span style=\"font-family:Arial; font-style:italic\">Derecho procesal penal costarricense</span><span style=\"font-family:Arial\"> . San José, Asociación de Ciencias Penales de Costa Rica, Volume II, 2007, pp. 230 and 231). The Constitutional Chamber has also repeatedly pronounced on the form of horizontal control alluded to before, as opposed to the vertical control that corresponds to appeals. For example, in Resolution No. 1999-01550, of 3:15 p.m. on March 3, 1999, when resolving an action of unconstitutionality against Articles 437 and 315, in relation to 311, all of the C.P.P., in which it was claimed that such norms omitted the possibility of appealing a ruling that denies a dismissal, it indicated: </span><span style=\"font-family:Arial; font-style:italic\">“Nonexistence of appeal on the resolution that dismisses a nullity incident… However, it is possible to affirm that the nonexistence of the appeal against a resolution that denies a nullity incident does not violate any element of due process. It is not an obligation of the legislator to establish a second instance for all resolutions and actions of the process. The mere existence of an appeal does not in itself guarantee compliance with due process. Hence, the obligation to enable a second instance for the defendant, from a human rights protection perspective, is in relation to the conviction, as established by Article 8, second paragraph, subsection h) of the American Convention on Human Rights. For its part, Article 437 of the Code of Criminal Procedure does is indicate which resolutions are appealable. If any irreparable harm occurs, said norm enables the appeal even if it is a resolution that has not been expressly declared appealable. If the resolution does not produce irreparable harm, one can proceed as provided in Articles 175 et seq. of the same Code, that is, the defect can be validated or remedied. Furthermore, as indicated in the preceding considerando, the nonexistence of an appeal in relation to a resolution that does not end the matter does not entail any injury to the fundamental guarantees of the parties, since the matter may be raised again in later stages and even in cassation in the case of a conviction. So the contested norm does not cause any violation of due process and for that reason the action must be rejected on the merits also in that regard.”</span><span style=\"font-family:Arial\"> In summary, horizontal control derives from the very structure of our criminal process. Save for the inherent limitations extracted from what is set out in Articles 175 et seq. of the Code of Criminal Procedure (e.g., that it is a defect already validated for any of the reasons indicated in art. 177 C.P.P.), the parties can re-raise the questions in later stages, and the corresponding court, according to the procedural phase, will be obliged to resolve. In addition to what has already been stated, we have that the Third Chamber of the Supreme Court of Justice has peacefully assumed that the jurisdictional bodies - the criminal judge, the trial court, the criminal sentence appellate courts, or even itself - are competent to examine whether conduct is or is not less reprehensible than others, for the purpose of determining whether an opportunity criterion has been correctly granted. For example, in Resolution No. 2001-00737, of 9:10 a.m. on July 27, 2001, it was indicated:</span><span style=\"font-family:Arial; font-style:italic\"> “The core issue on which a judgment must be made with a view to determining whether the criterion under discussion can be resorted to is the reprehensibility of the specific conduct of the “collaborator” in the act under investigation or in the act related to it, and its lesser entity when comparing it with that of the remaining persons in whose prosecution cooperation is given.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> The defense errs, then, in generically affirming that the opportunity criterion is inapplicable to co-authors or participants in the same crime under investigation, for the law is clear in providing the contrary. In the present case, the Public Prosecutor's Office maintained the thesis – admitted by the a quo in the judgment on the merits – that the witness [Nombre19] intervened in the act by hitting a third party whom he left unconscious ([Nombre20]), but whom he did not kill; while the other persons attacked two other victims, causing their death.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> In this approach, even if the defense's interpretation were admitted (in the sense that [Nombre21] actively intervened, with control over the act in the two homicides that other subjects materially executed), the truth is that nothing prevented applying the opportunity criterion in his favor, since the reprehensibility of his conduct (which, in the end, only produced a slight incapacity in [Nombre22]) is much less than that of the actions attributed to the other participants in the events, who allegedly would have directly caused the death of [Nombre21][Nombre23] and [Nombre24].” </span><span style=\"font-family:Arial\">. Something similar occurs in judgment No. 00795-2009, of 2:35 p.m. on June 16, 2009. In this, the Third Chamber concluded, both that the acts committed by the collaborator can be different from the act whose prosecution they facilitate, and that the lesser reprehensibility corresponding to the former is one of the essential prerequisites that the judge must verify when approving the request for application of the opportunity criterion: </span><span style=\"font-family:Arial; font-style:italic\">“The opportunity criterion based on the cooperation that one of the participants in the crime provides to prosecute the others (or those of another more serious illicit act), constitutes a form of extinguishing criminal action regarding the collaborator; it proceeds in cases of organized crime, violent criminality (like the homicide investigated here), serious crimes, or cases of complex processing, and demands two other essential conditions: that the collaborator's conduct be less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents, and that the information provided satisfies the intended expectations. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Of course, the cooperator may be a participant in the same crime to be prosecuted (procedurally: a co-defendant) or the perpetrator of another less serious punishable act</span><span style=\"font-family:Arial; font-style:italic\">. The procedure for applying the opportunity criterion in this hypothesis includes the authorization of the hierarchical superior of the prosecutor (e.g.: the deputy prosecutor, regarding the assistant prosecutor), who must request the approval of the opportunity criterion from the judge of the intermediate stage. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">If the judge admits it, after verifying the concurrence of the essential prerequisites (the type of criminality, the lesser reprehensibility of the collaborator's conduct, and the authorization of the competent prosecutor of the Public Prosecutor's Office)</span><span style=\"font-family:Arial; font-style:italic\">, the suspension of the exercise of the public criminal action will be decreed, which will remain in that state until fifteen days after the finality of the sentence handed down against the other defendants (that is: those intended to be sanctioned with the help of the collaborator), at which time it must be definitively resolved whether the criminal action is extinguished… In this matter, the defender questions the court's agreement, which convicted three of the participants in the homicide, to refuse to take the testimony of the accused “collaborator” and, rather, order her detention and qualify the signed cooperation agreement as illegal. Regarding this point, it must be remembered that what happened was due to the actions and omissions of the Public Prosecutor's Office, which limited itself to signing the agreement but failed to comply with the other applicable procedures (processing the authorization of the hierarchical superior and the judge's approval to declare the criminal prosecution suspended). From this perspective, no objection can be formulated against the act of the aforementioned trial court of rejecting the proposed testimony, for the truth is that such a request sought nothing other than to receive as a witness (even without oath) a person who, as recorded in the case file, was rather a defendant who had undergone an investigative statement, but whose legal situation had not been defined through any jurisdictional pronouncement. As stated, the suspension of the exercise of criminal action against [Nombre25] was never decreed, and, in fact, the agreement had not been submitted to the examination of a judge, such that the trial court was the first jurisdictional body that had contact with the issue. Despite the foregoing, not all of the court's actions can be endorsed either, insofar as they meant declaring the illegality of the agreement, for it would have been sufficient to reject the testimony noting the non-compliance with the planned legal procedure and, above all, the lack of judicial approval, such that it was incumbent upon the Public Prosecutor's Office to correct the deficiencies it incurred and seek the suspension of the oral trial while it processed the hierarchical and judicial approval of the agreement, so that the “collaborator's” testimony would finally be taken in the debate against the other participants in the crime, or else, in case such approvals were denied, to continue with the criminal prosecution of the defendant. It is not the task of the trial court to declare the ineffectiveness of the collaboration agreement signed by a person presented to it as an unsworn witness (or, to be more precise, a defendant or co-defendant whose prosecution is suspended) invoking for that purpose the content of the evidence taken before hearing the account that the deponent would make. What it can do is refuse to take the testimony if, as happened here, the legal procedures established for applying the opportunity criterion were not fulfilled. On the other hand, it is necessary to emphasize that all the problems raised in this case and in relation to the defendant are the exclusive responsibility of the Public Prosecutor's Office…”.

Finally, in judgment No. 01712-2013, at 14:21 on November 22, 2013, the cassation body affirmed that said control must also be exercised by the criminal sentence appellate court: "*I. By resolution number 2013-1330, at eleven hours nine minutes on September twentieth, two thousand thirteen, this Chamber admitted the cassation appeal filed by Lic. Nombre26 for a merits review… In the sole ground in favor of the defendants Nombre04.Nombre27., Nombre28., and Nombre29., it is argued that procedural legal precepts were disregarded, specifically, the provisions of Articles 142 and 459 of the Criminal Procedural Code. In the defense counsel's opinion, the Appellate Court did not rule on all aspects that were expressly challenged. In this regard, it points out that the incorrect assessment of Article 22 of the Criminal Procedural Code was claimed, considering that the participation of the person granted a prosecutorial discretion criterion (criterio de oportunidad) was no less reprehensible than the conduct attributed to the other defendants; however, it considers that the analysis made by the Appellate Court was limited to a review of the reasons why credibility was given to said witness, and to agreeing with the thesis set forth in the judgment, without analyzing the substantive issue…* **II. The claim is admissible.** *After conducting a careful study of judgment number 92-2013, issued by the Trial Court of the Third Judicial Circuit of San José, at eleven o'clock on February twenty-fifth, two thousand thirteen; as well as resolution number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, from the Criminal Sentence Appellate Court of the Second Judicial Circuit of San José, this Chamber considers that the private defense is correct in the claim filed. In order to begin the analysis of the merits of this matter, it is necessary to start from the factual framework that the Trial Court established as proven: “* **1.** *On April 10, 2010, at approximately 6:00 p.m., the victim Nombre30., alias “Nombre31”, was in San José, Alajuelita, Concepción Arriba, Dirección01, outside Bar Betos, consuming liquor.* **2.** *In the same place, on the date and time referred to, the defendant and administrator of said bar, Nombre32., was present, accompanied by co-defendant Nombre33., c.c. “Nombre33.”, who argued with the victim over a prior problem, to the point of threatening him with death.* **3.** *Immediately afterward, defendants Nombre34. and Nombre09., acting by common agreement and with the intent to kill the victim Nombre35., contacted co-defendant Nombre36., alias “Nombre37”, by telephone, offering him the sum of two million colones to carry out said homicide.* **4.** *By virtue of the foregoing, co-defendant Nombre36., acting by common agreement and according to the plan previously established with defendants Nombre32.Nombre38. and Nombre33., contacted co-defendants Nombre39., alias “Nombre40” (against whom separate proceedings are being conducted for these facts in file 11-000052-1042-TP with whom a prosecutorial discretion criterion was negotiated) and Nombre29., so that they would carry out the homicide of Nombre41.* **5.** *As part of the previously established plan, defendants Nombre36., Nombre05., and Nombre29., boarded in the vicinity of the former Delegation of the Public Force of Concepción de Alajuelita, the white Hyundai Accent vehicle, license plates…, which was being driven by co-defendant Nombre42., alias “Nombre43”, who, without knowing about the previously agreed payment, but knowing that a homicide was going to be committed, was accompanied by co-defendant Nombre44., alias “Nombre45” (against whom separate proceedings are being conducted for these facts in file 12-000012-1042-TP), brother of Nombre33., and they moved to the place where the victim was, for the purpose of killing him.* **6.** *At approximately 11:30 p.m. that same day, the victim Nombre46.Nombre47. was outside Bar Betos, at which point defendants Nombre32. and Nombre33., acting by common agreement, according to the previously established plan and with a clear distribution of functions, communicated by telephone with co-defendant Nombre36. and informed him of the exact location of the victim, in order to ensure his death.* **7.** *Immediately afterward, once these defendants arrived near Bar Betos, the accused Nombre39. and Nombre29. got out of said vehicle, at which time co-defendant Nombre42., according to the previously established plan to ensure the subsequent escape from the scene, parked approximately 50 meters north of the point where the victim was located, a place where he waited for them while they carried out the homicide, accompanied by co-defendants M.A.S. and Nombre36., who had previously given them the respective operational instructions to execute said crime.* **8.** *Immediately afterward, defendants Nombre39. and Nombre29., acting by common agreement with co-defendants Nombre28., Nombre33., Nombre44.Nombre48., Nombre36., and Nombre42., approached the victim and, without any justification and with total disregard for his life, shot him multiple times with firearms, co-defendant Nombre29. also being wounded…* **10.** *As a consequence of the illicit actions of all the defendants, the victim suffered seven wounds produced by firearm projectiles, located in the thorax, abdomen, right buttock, right upper extremity, and left lower extremity, which caused his death that same day at Hospital San Juan de Dios, the cause of death being: Firearm projectile wound to the thorax with cardiac laceration with left hemothorax and hemopericardium and the manner of death: Homicidal from a medical-legal point of view.” Thus, for the Trial Court it was duly proven that the accused Nombre39. and Nombre29. were the material perpetrators of the homicide, because in the distribution of functions previously agreed upon among all the co-defendants, it was they two who agreed to execute the accused crime, firing various times with the firearms they carried, in order to end the victim's life. Now then, the Public Prosecutor's Office decided to negotiate a prosecutorial discretion criterion with co-defendant Nombre39., who collaborated with his statement, in the capacity of a crown witness. This agreement was objected to by the defense of the other accused, noting that the legal prerequisites for the applicability of the prosecutorial discretion criterion were not met, since the defendant had the status of co-perpetrator in the facts charged, was the material executor of the homicide, and his conduct was as reprehensible as that of the other co-perpetrators. The protest for defective procedural activity was resolved in the first Whereas clause of the judgment issued by the Trial Court (visible from page 1223 of volume II of the investigation file). In summary, said protest was declared without merit, for the following reasons: 1) Article 22, subsection a) of the Criminal Procedural Code grants the Public Prosecutor's Office the discretion to partially or totally waive criminal prosecution when the accused makes a statement against other participants in the act, with the purpose of obtaining a benefit, in relation to the reproach of his responsibility in the charged crime. 2) The negotiation is beyond the control of the other defendants, it is not a right belonging to them, and it is a private transaction between the Public Prosecutor's Office, the defense attorney, and the collaborator; therefore, the agreement does not have an obligation of publicity. 3) Regarding the degree of reproach of the conduct attributed to the crown witness, it stated: “The factual framework that has been demonstrated and that finds support in the accusatory document, establishes that due to criminal problems that existed between a brother of the victim and a brother of the defendant, friction had arisen that culminated in the decision of defendant Nombre33. to pay a sum of two million colones with the sole purpose of ending the life of Nombre21., which was justified by the slights he made at the business of Nombre49., in relation to the supposed rights of his brother, due to the debts of Nombre49. and a brother of his, to him. And on April 10, 2011, and after one of these problems, Nombre49. and co-defendant Nombre28., taking advantage of the former's economic advantage, devised the death of the victim, deciding to pay third parties a sum of two million colones for that execution. In this way, it is feasible to conclude that those who had control and the decision over that act were Nombre49. and Nombre28., who assumed the primary function in the act, as they were the ones who decided to hire co-defendant Nombre50.Nombre46., so that he in turn would hire Nombre29. and the defendant and crown witness, Nombre51., to carry out the death of the victim; defendant Nombre42. also participated, who was responsible for facilitating and driving the vehicle used to transport those who would handle the commission of the criminal act. It is denoted then, that the planned homicide was even hierarchically structured based on those who, in that small organizational structure, were the ones who decided and paid for the commission of the homicide. On a secondary level, as we have said, we find Nombre46. who was the contractor-intermediary, and further down, it is even possible to find those who carried out the act, who in the Court's opinion can be seen as interchangeable pieces of that plan. The Court considers then that the participation attributed to Nombre51. can indeed be framed within a lesser reproach, from the perspective of the organizational structure, where he followed orders from others, which reflects his lesser relevance in the facts. It is important to indicate that regarding the decision of which defendant should be granted the prosecutorial discretion criterion, it must be concluded that this is a power that the Public Prosecutor's Office holds by law and that it will depend on the lesser reproach and that the information provided is sufficient, according to the prosecution's criterion, without the Court being able to observe any defect in the fact that the Public Prosecutor's Office chooses one defendant over others, to benefit him with the non-prosecution of his criminal responsibility in the facts.” For its part, the Criminal Sentence Appellate Court of the Second Judicial Circuit of San José, in resolution number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, upon hearing that same argument as one of the grounds of the appeal against the conviction, indicated:* **“i.-** *First of all, the defense has complained about the Public Prosecutor's Office's agreement to grant a prosecutorial discretion criterion to one of those implicated in the case, arguing that the content of Article 22, subsection b) of the Criminal Procedural Code was exceeded, since it was applied to the one who committed the most serious action of shooting the victim. This issue was extensively addressed in the judgment (pages 1223-1226), pointing out that the Criminal Procedural Code has granted a wide margin of discretion to the Public Prosecutor's Office to transact within the criminal process, evaluating the pertinence in each case, in accordance with the criminal policy guidelines. It also indicated that the agreements are not public nor do uninterested third parties participate in the transaction, to the point that it is handled in a separate and independent file. Furthermore, the judgment points out that, according to what was proven, the decision-making power to order the death of the victim was in the hands of Nombre33. and Nombre28., so that it is them who bear greater reprehensibility for the act, and Nombre51. to a lesser hierarchy, notwithstanding that the latter was an executor of the orders given. This Court has examined the point and agrees with the thesis set forth in the judgment, that those who give the orders, pay the reward for the victim's death, and make others obey, have greater reprehensibility than the executors themselves, so that we are before one of the prerequisites that authorizes the negotiation of prosecutorial discretion criteria in organized criminality.” (see folio 1501 front and back). Regarding the previous reasoning shared by both the Trial Court and the Appeals Court, it is appropriate to make the following reflections: The opportunity principle (principio de oportunidad), contemplated in the procedural law as an exception to the legality principle, has a series of *sine qua non* conditions for applicability, as provided by the legislator. Thus, in all cases, prior authorization from the hierarchical superior of the prosecutor promoting the agreement is required, according to the different factual scenarios authorized by the legislator. The first of these, contemplated in subsection a) of Article 22 of the Criminal Procedural Code, provides: “It involves an insignificant act, minimal culpability of the perpetrator or participant, or an exiguous contribution by him, unless there is violence against persons or force against property, the public interest is affected, or the act was committed by a public official in the exercise of office or on the occasion thereof.” According to the legal basis set forth by the trial judges in the conviction…, this is the applicable factual scenario for the present matter. However, none of the requirements set forth therein are met in the *sub examine* case. This Chamber considers that the crime of homicide is not, from any point of view, an insignificant act. The figure of the material perpetrator of the homicide contravenes the concept of “minimal culpability” or “exiguous contribution”. Killing a person is the ultimate representation of violence against a human being and, therefore, directly affects the public interest. Consequently, the proven facts of the judgment fail to meet all the legal requirements enshrined in this factual hypothesis. If we continue to the next basis, contained in subsection b) of the mentioned article, it establishes: “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 crime from continuing or others from being perpetrated, helps clarify the investigated act or other connected ones, or provides useful information to prove the participation of other defendants, provided that the collaborator's conduct is less reprehensible than the punishable acts whose prosecution is facilitated or whose continuation is avoided…” Based on the foregoing, the facts charged here could be adapted to the stipulated guidelines on violent criminality, serious crimes, effective collaboration, helping to clarify the investigated act, and providing useful information to prove the participation of other defendants, because there is a statement from the crown witness which, for the purposes of the sentencing Court, was sufficiently clear, convincing, and truthful, regarding the participation of the other accused, as well as the motive and the dynamics developed, from planning to the execution of the crime, capable of proving, jointly with the other incriminating evidence, the acts charged. However, the law provides that in addition to those requirements, “the collaborator's conduct be less reprehensible than the punishable acts whose prosecution is facilitated or whose continuation is avoided.” It is regarding this last requirement that the defense directs its claim, and it is precisely on this that a careful analysis must exist, in order to determine the legality and applicability of the prosecutorial discretion criterion that was granted to Nombre38.Nombre39., in the capacity of what in doctrine is called a “repentant defendant” or “crown witness” of the accusing body. Without losing sight that it is a criminal structure, in which there are clearly defined functions among the participating subjects, a logical and analytical examination must be carried out, aimed at determining the essentiality and relevance of the conduct of the agent who intends to benefit from the application of this legal mechanism. Based on the effective realization of the action attributed to him and the essentiality and significance in the harmful result, the lawful and proportional parameters that would demarcate the agreement between the parties are set; namely, the Public Prosecutor's Office, defense attorney, and repentant or collaborating defendant. *Although the law grants the prosecutorial body a wide margin of negotiation and even the power to totally or partially waive criminal prosecution, it is also true that it sets a limit for the exercise of that discretion, insofar as it warns that the beneficiary must have conduct less reprehensible than that attributed to the other co-participants in the act whose cessation or proof is sought.* Likewise, it gives the Public Prosecutor's Office the possibility of graduating the granting of that benefit, in order to assess the reprehensibility of the conduct compared to that of the other co-participants and the effectiveness of the collaboration provided in the investigation, as well as in obtaining the conviction. The graduation of the benefit offered to the crown witness is directly related to whether criminal prosecution is partially or totally waived and, therefore, to the elimination or reduction of the sentence to be imposed. Thus, an action carried out by a subject accused of acting as an accessory after the fact or a personal accessory in the criminal organization will not have the same level of reproach as the one who performs the action as an accomplice to the most serious crime, nor does it resemble that executed by the perpetrator or co-perpetrators. *Therefore, there must be a correlation between the benefit offered and the degree of reprehensibility of the conduct, such that a rational proportion is established to determine whether criminal prosecution is completely waived or, on the contrary, the illicit act is sanctioned in a less rigid manner, making the proposal attractive to the repentant defendant, while also being consistent with the ends of justice, thus avoiding the indiscriminate application of the same measure (of completely waiving criminal prosecution) to all types of participants in a crime, bypassing the legally established requirements for the application of this mechanism. It is for this reason that we consider the agreement made between the representatives of the Public Prosecutor's Office, the collaborating defendant, and his legal representative to be illegitimate, because there is no proportionality between the benefit received and the degree of participation in the charged facts.* Contrary to what the judges state in the conviction and in the appeal resolution, the conduct attributed to the accused Nombre51. is highly reprehensible; since, acting in association with the indicted Nombre52., they killed the victim here, that is, they carried out the act, without any justification whatsoever, other than the interest in receiving an undue pecuniary benefit. Opting for a different criterion is to accept that the figure of contract killing carries an insignificant or even null censure, as in the case at hand, where the conduct carried out by one of the co-perpetrators is made inconsequential. The Public Prosecutor's Office, for its part, has the legal power to negotiate with the crown witness the imposition of a sentence lower than that provided for the other co-participants, thus avoiding the impunity of conduct that has a high degree of reproach. It is also contradictory that while the Public Prosecutor's Office completely waives criminal prosecution against Nombre51., for that same conduct and, therefore, with the same degree of reproach, Nombre52. is sanctioned with twenty-five years in prison, as the responsible perpetrator of the crime of aggravated homicide, just like the sentence imposed on the defendants who were accused of being the intellectual authors… and the intermediary who hired the hitmen and made the respective collection for doing the job… In this sense, it is incompatible to indicate that the conduct of one of the material perpetrators of the act is less reprehensible, to justify the application of the prosecutorial discretion criterion, and, on the other hand, sanction all other defendants with the same sentence, evading all prior reasoning about the reprehensibility of the conduct, according to the hierarchical structure of the criminal organization and the functions entrusted to each member.”* This contradiction in the judges' reasoning violates the logicality and legality of the judgment, because it is not possible to admit that one conduct is less harmful than another and yet the sanction is applied equally to all. Nor is it acceptable that one argument is used to legalize an agreement and with another totally opposite one, such a high prison sentence is imposed, when the fact being judged is identical in both cases. Finally, since the entire judgment on the merits was based on the version rendered by the crown witness, on the occasion of a prosecutorial discretion criterion that does not comply with the legally established requirements for its applicability, judgment number 92-2013, at eleven o'clock on February twenty-fifth, two thousand thirteen, issued by the Trial Court of the Third Judicial Circuit of San José, and the trial that preceded it, are annulled; as well as resolution number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, issued by the Criminal Sentence Appellate Court of the Second Judicial Circuit of San José, in which the judgment on the merits was confirmed. It is ordered that this matter be sent as soon as possible to the Court of origin, so that with a new composition, the retrial is conducted...”. The previous citation is extensive but indispensable to gauge the scope of the jurisdictional control that, according to the cassation body, must be exercised over the issue of reproach and that supports this chamber's thesis. We are talking about judgments where there has been no objection whatsoever to examining the point, where it is expressly and implicitly recognized that this analysis can be reiterated at different phases of the process and, above all, where the thesis of the *a quo* is dismissed, in the sense that this particular requirement contemplated by subsection b) of Art. 22 C.P.P., at any stage of the procedure, is exempt from jurisdictional control. It is also important to refer to *what the Constitutional Chamber stated regarding this extreme*. According to the trial judges, the constitutional court, through binding jurisprudence, prohibited the judge from controlling whether the collaborator's conduct is less reprehensible than the criminal acts attributed to other defendants. Such an assertion is not accurate. In resolution No. 12090, at 14:40 on July 31, 2009, the Constitutional Chamber ruled on an unconstitutionality action filed by [Nombre01 033] against articles 22 and 23 of the Criminal Procedural Code. The action was rejected on its merits and in what concerns us here, it was stated: “*On the other hand, Article 22 in fine is clear in pointing out that the request to apply a prosecutorial discretion criterion must be filed before the court, which is the one that resolves definitively, exercising due legality control (control de legalidad). It is not true then, what the claimant stated, that there is no control by the judge of guarantees.* *That control cannot be understood, in any way, to mean that the judge can replace the prosecutors' decisions related to the criminal-political opportunity and convenience of initiating or continuing criminal prosecution.* *As will be analyzed, judicial control must be limited to the legal requirements, but it cannot assess aspects that are inherent to the exercise of the accusatory function. In order to achieve the objectives pursued by the opportunity principle, it must be administered by the body responsible for state criminal prosecution.* *It must be added that the fact that the right to appeal the resolution approving the application of a prosecutorial discretion criterion is not provided for those who appear as defendants in the same case does not violate due process or the right to defense, given that the testimony rendered by the person to whom a prosecutorial discretion criterion has been applied will be assessed by the court, which must substantiate the credibility it grants it or not, in relation to the rest of the evidence and, in addition, it may be broadly questioned by the parties in the debate. Likewise, the defendant has the right to challenge the judgment if he believes that defects have been produced in the reasoning of the judgment or in the incorporation or assessment of the evidence...”.* Later, in that same resolution, it was also stated: “*VII. Regarding the principle of judicial independence. The claimant indicates that the questioned norms infringe the principle of judicial independence, because the Public Prosecutor's Office subordinates the judge who effectively disappears from the criminal scene and is reduced to performing a merely formal task, which harms his independence, weakening the protection of the rights of the other defendants, especially the right to defense, a fair trial, and due process with all guarantees.- In relation to this aspect, it must be recognized that the Public Prosecutor's Office must be the axis of any markedly accusatory system.* *In the application of prosecutorial discretion criteria, it is the accusatory body that must decide the convenience and necessity of their application, because the competence to design criminal prosecution policies, exercise criminal action, and carry out the preparatory investigation has been attributed to it. According to the legislator's provision, the judge must exercise legality control over the application of said measures, but not over their opportunity and convenience.* *Such division of functions, far from violating the principle of judicial independence, rather strengthens it, given that the jurisdictional function must be restricted to controlling respect for the rights and guarantees of the parties and not to deciding on the accusation.”* On this subject, the Chamber ruled in judgment 2662-01 of 3:30 p.m. on 4-4-01, which resolved a judicial consultation filed regarding the constitutionality of the decision of the deputy prosecutor that obligated the judge to admit the application of an opportunity criterion based on the insignificance of the act and to order the definitive dismissal. In the relevant part, it stated: “Consequently, it is the responsibility of the Prosecutor to decide on the advisability of applying or not an opportunity criterion. The parties may request its application, within the five-day period provided for in Article 316 of the Code of Criminal Procedure. However, the court of the intermediate procedure cannot accept that request without the approval of the Public Prosecutor's Office, which, as stated, must have the approval of the hierarchical superior. It is the duty and power of the Attorney General to establish the general policy of the Public Prosecutor's Office and the criteria for the exercise of criminal prosecution (Article 25, subsection a) of the Organic Law of the Public Prosecutor's Office). Consequently, in accordance with that structure, the analysis that the court must make to authorize the application of an opportunity criterion must be limited to verifying compliance with the formal requirements established by the legislator. The judge's authorization excludes carrying out an analysis of the advisability or timeliness of the measure, given that they cannot substitute the decision of the Prosecutor, who is in charge of the exercise of criminal prosecution; it is to the Prosecutor that responsibility is attributed, because that leads to denaturing—within the system that has been chosen (the accusatorial system)—the judging function that corresponds to the judge, who must wait to be duly moved to act by the requesting body. In the case of Article 22, subsection a), corresponding to the criterion of insignificance of the act, whose application gives rise to this consultation, the judge must verify that the act was not committed by a public official in the exercise of their duties or on the occasion thereof. The determination of whether or not the act affects the public interest corresponds to the Prosecutor because it is an evaluative criterion that has to do with the exercise of the State's criminal policy, to be weighed in each specific case by the representation of the Public Prosecutor's Office. The foregoing, because it is a clear fact that in all crimes subject to public prosecution, an affectation of a public interest is at stake, hence society at the time considered it necessary to classify them as such. It is the Public Prosecutor's Office—we reiterate—that must make the judgment regarding the advisability, utility, and necessity of criminal prosecution in each specific case.” … It is clear, then, that it is the Public Prosecutor's Office and not the judge who is responsible for deciding on the advisability or timeliness of applying the criteria provided for in Article twenty-two of the Code of Criminal Procedure. This decision is an expression of the prosecutorial power and responds to a prosecution policy attributed exclusively to the prosecuting body. Nevertheless, the legislator established a legality check that the judge must exercise regarding compliance with the requirements contained in the very regulation being challenged. It is not a decision that lacks judicial assessment, although in some eminently accusatorial systems, such control is not required, without it having been considered that such liberality violates fundamental rights.” (The underlining is not from the original). For those subscribing to this resolution, the foregoing precedent cannot be interpreted in the manner set forth in the majority opinion. In the first place, the Constitutional Chamber did not indicate that jurisdictional control must be limited to part of the requirements provided for in Article 22, subsection b) of the Code of Criminal Procedure. Quite the contrary. It affirmed that in our country, unlike what happens in other latitudes (where a model has been adopted according to which the principle of opportunity is the rule and the decisions adopted by the Public Prosecutor's Office are not subject to judicial assessment), the judge is the one called upon to determine whether the requirements contemplated in the legal system are met. This, the Constitutional Chamber indicates, does not empower the judge to assume tasks that do not correspond to them, for example, to assess the advisability or timeliness of waiving criminal prosecution in a given case. And indeed, the decision to prosecute or not a specific conduct is the purview of the Public Prosecutor's Office; however, this does not mean that it has maximum discretion in that area. Its decisions are subject to the law—since it can only waive criminal prosecution and promise advantages in the terms indicated by law, cf. Art. 22 and 96 C.P.P.—, and it is the duty of the jurisdictional body, also by express provision of the legislator, to guarantee respect for the legal system. It is important to add that although the Constitutional Chamber indicated that there are assessments that only the Public Prosecutor's Office can make (e.g., establishing that in a particular case the affectation of the public interest was insignificant in the terms indicated by Art. 22, subsection a) of the C.P.P., cf. judgment No. 2662-01 mentioned in No. 12090-2009 reproduced above), this does not allow interpreting that in the case of subsection b) of numeral 22—that is, another scenario—the Public Prosecutor's Office can determine without any jurisdictional control that the conduct of the collaborator is less reproachable than other punishable acts, or affirm, as the trial court does, that this position is the one assumed by the highest constitutional court of our country, ignoring that the only thing said court has expressly indicated is that the advisability of applying or not the mentioned legal institution is the purview of the requesting body, a position that is shared without reservation, because indeed, only the Public Prosecutor's Office can decide whether it is advisable to waive the criminal prosecution of an accused in a particular case, in exchange for their collaboration. The foregoing, we insist, does not mean that it can negotiate with any accused in any case, or negotiate any benefit, insofar as its request, to be accepted, depends on verifying compliance with the requirements defined by the C.Nombre06. Obviously, neither the criminal judge, nor the trial court, or the bodies hearing the matter on appeal, will assess the timeliness of the Public Prosecutor's Office's decision (based on its prosecutorial policy), but they must corroborate, because Nombre02 the legal system so provides, strict compliance with its requirements (legal and constitutional), which is something different. Likewise, it will be the Public Prosecutor's Office that must assume the consequences of deciding in that area incorrectly, for if it negotiates with an accused whose statement, besides being essential, is implausible, the result of the proceeding is likely not to be the desired one, Nombre02 just as if it negotiates with an accused who deserves greater reproach, it is also plausible that at any procedural stage and in the face of protests from the parties, the negotiation will be considered illegal. In summary, based on the same precedents cited by the a quo and in which the importance of legality as a guiding principle of the actions of any public body is underlined, this chamber concludes that the court, regardless of the stage at which the proceeding finds itself, is obligated to verify that all the requirements contemplated in Article 22 of the Code of Criminal Procedure are met, therefore including that related to the lesser reproach that must correspond to the conduct of the collaborating accused whose criminal prosecution is being waived. For the judge to be able to assess this point, the criminal prosecution policies designed by the Public Prosecutor's Office are irrelevant; those policies do become relevant for the purpose of establishing, for example, the cases and accused in relation to which that body requests the application of a given criterion, a matter in which it certainly has a considerable margin of freedom. In this same vein, it is also worth insisting that resolution No. 2662-2001, mentioned in turn in No. 12090-2009 of the Constitutional Chamber, ruled on subsection a) of Article 22 C.P.P. and not on subsection b), which is the one that concerns us here. In addition to this, there are other resolutions of the referred Chamber, e.g., No. 2002-06808, of 2:46 p.m. on July 10, 2002, where in a majority opinion, and indeed referring to what is stated in subsection b) of numeral 22, it is Nombre07 the control carried out by the trial court over the legality of an opportunity criterion: “The appellant's disagreement lies in the fact that the protected party… signed an agreement with the Public Prosecutor's Office for the application of the regulated principle of opportunity, in the scenario established in Article 22, subsection b) of the Code of Criminal Procedure, and after offering a statement of great utility to reach the truth of the investigated facts, the appealed court revoked the agreement, leaving the accused completely defenseless. In this regard, the first thing this Chamber must clarify is that the same Code of Criminal Procedure clearly distributed the competencies in matters of applying the regulated principle of opportunity, leaving in the hands of the Public Prosecutor's Office the analysis of the advisability and timeliness of refraining from exercising the punitive claim in the cases provided for in Article 22; likewise, it leaves to the criminal courts the control of legality in the use of said instrument, given the seriousness that its application in a manner contrary to Law would entail. In the express case of subsections b) and f) of the already cited Article 22, the effects of the agreement that the Public Prosecutor's Office signs with the accused person are merely provisional, and they become firm only when the Trial Court definitively determines whether it is appropriate—in accordance with the parameters set forth in the Law—to waive the criminal prosecution against that person. That is, it is clear that the mere signing of an agreement between the Public Prosecutor's Office and the accused in a criminal case, in which the latter commits to providing useful information in the investigation, does not by itself confer the right to obtain a dismissal resolution in that proceeding, but rather the final decision in this matter remains Nombre11 in the hands of the judge… In the present case, it is obvious that the protected party could not demand that the Trial Court apply, without a prior legality check, the agreement she signed with the Public Prosecutor's Office. Nombre02 the things, the action of the appealed court, reviewing whether the agreement in question met the requirements of Article 22, subsection b), is not illegitimate, but rather in accordance with its competencies, as was explained in the previous paragraph…”, an opinion that supports what this sentence appeals court has said and which the trial court disregards, by relying solely on the dissenting opinion subscribed by Magistrate Fernando Cruz Castro, which furthermore does not call our conclusions into question either. Note that Judge Cruz Castro does not deny that the trial court could or should verify compliance with the requirements contemplated in Article 22, subsection b) of the C.P.P. What he questions is that said court took measures against the liberty of a person (the collaborator) against whom no accusation had been formulated that outlined their criminal responsibility. Said dissenting vote indicates: “… The intervention of the trial court in the face of a decision adopted by the Prosecutor's Office, rejecting an agreement between the defendant and the representative of the Public Prosecutor's Office, decreeing, at the same time, the detention of a person against whom no accusation had been formulated, constitutes an improper intervention that denatures the jurisdictional function, because a requirement that ensures the impartiality of the judge is their disengagement from the requesting power. This separation ensures the effective validity of the judge's impartiality, which is one of the most important organic guarantees that define the jurisdictional function. Without the issue having been defined by the prosecuting body, the judges of the court outlined a possible responsibility on the part of the plaintiff, anticipating a judgment, without the criminal prosecution having been exercised. The Court rejects the agreement and the application of the principle of opportunity, but by decreeing detention and ruling on the possible responsibility of a witness against whom the criminal prosecution had not been exercised, it improperly assumes the functions that correspond to the prosecuting body. A citizen's liberty is not satisfactorily protected if the judge assumes repressive and judging powers, without the requesting body having formulated the accusation. The possible criminal responsibility of the respondent in a proceeding in which the prosecuting entity had not exercised the accusation constitutes an excess that violates the balance of powers and the clear differentiation of actors and powers that governs the criminal process. The possible criminal responsibility that may correspond to a witness who testifies in that capacity and against whom criminal prosecution has not been exercised is an irrelevant issue that does not justify an anticipated judgment like the one the trial court exercised, because no person who testifies under oath or without it can provide legitimate evidence that self-incriminates. In order to guard against such a probability, legally inadmissible and whose consequences must be resolved in another proceeding, prior exercise of the requesting action, the court cannot meddle in the judgment of an act that has not been submitted to its knowledge. Nor was the possible departure from the country of the witness-accused relevant, because that point is a responsibility of the Public Prosecutor's Office, especially in the case of a citizen against whom the competent body had not exercised its requesting power. Nor was it a flagrant crime and for this reason they could not decree the immediate detention of the plaintiff, as was done in the trial hearing. To affirm that the witness was not detained because they were placed at the disposal of the competent authorities is a fallacious argument intended to conceal an action in which jurisdictional power exceeds its limits, blurring the difference between accusation and judgment, thereby violating the impartiality of the jurisdiction. As established by the Code of Criminal Procedure, the court may reject the agreement but may not base such a determination on speculation about the possible responsibility of the crown witness; instead, it must do so in a judgment, in accordance with the requirements provided for in Article 23 of the c.p.p. The Judge cannot anticipate the result that the accusation will have, and even less so if it involves the trial court itself, since it is not possible for it to establish the possible authorship corresponding to the crown witness when it has not yet ruled on the accusation in which the collaborator is excluded and in which other actors and possible co-perpetrators of the act are mentioned. The problem in this case is not that the agreement ensures the dismissal of the plaintiff, which would not be a legally admissible claim, but rather that the court imposed a limitation on the liberty of… without having the legitimacy that such a decision demands, since the competent body had not exercised its requesting power. Although the Prosecutor's Office had not previously requested the legality check corresponding to the court of the intermediate stage (see last paragraph of Article 22 of the c.p.p.), such omission does not authorize the trial court to reject the opportunity criterion based on a series of appreciations and speculations about the result of an action that the Public Prosecutor's Office has not exercised. The rejection of the opportunity criterion provided for in subsection b) of Article 22 of the c.p.p. must be based on the description and evidence of the main accusation, but it is not acceptable, as occurred in the present case, for the rejection to be based on an anticipated assessment of the evidence, Nombre02 as well as on an interpretation of the facts not contained in the accusation. The rejection of the agreement cannot be based on a factual and legal determination that does not arise from the accusation and the agreement; it is for this reason that Article 23 of the c. p. p. leaves the extinction of the criminal prosecution in suspense, authorizing it only after the trial has been held, which is the opportunity at which the court, in the full exercise of its powers, once the evidence has been received in accordance with the constitutional principles that legitimize its reception and assessment, determines whether the collaboration is legally acceptable, defining two points: a) whether it concerns a person whose action in the criminal activity is less reproachable than the one they helped resolve, and secondly; b) whether the collaboration provided by the collaborating witness has been decisive. The evaluation of these parameters cannot be made before the hearing is held, as the trial court did, constructing an accusatory hypothesis over which it had no intervention, as the Code of Criminal Procedure well defines by recognizing, as appropriate, that the eventual responsibility of the crown witness must be resolved only after the trial has been held (see second paragraph of Article 23 of the c.p.p.). In the face of non-compliance with the provisions set forth in the Code of Criminal Procedures (last paragraph of Article 22 and 24 of the c.p.p.), the court could well have rejected the agreement that the Public Prosecutor's Office surprisingly presented, but without ruling on the content of the agreement and the possible participation of the plaintiff. Nor could the court, as stated, decree the detention of a person who was not a flagrant offender and against whom the Public Prosecutor's Office had not exercised criminal prosecution. The admissibility or legality of the opportunity criterion applied by the Public Prosecutor's Office does not authorize the Court to exercise the powers that correspond to the accusation. By virtue of the arguments that have been set forth, the undersigned of this opinion believes that although the surprising presentation by the Public Prosecutor's Office of the agreement with the plaintiff injures the principles of loyalty and due process, such an error does not authorize the trial court to exercise powers that correspond to the prosecuting body, ruling on the possible criminal responsibility of a person without an accusation having been formulated against them and decreeing, based on such a determination, the illegitimate detention of the plaintiff ...”. As can be observed, this dissenting vote does not deny the possibility that the trial court may control compliance with all the requirements provided for in Article 22, subsection b) C.Nombre06. On the contrary, that option is admitted, on the understanding that this must be done once the evidence has been presented at trial. For all the foregoing reasons, this chamber concludes that jurisdictional control over the propriety of the opportunity criterion must exist, verifying compliance with the legal requirements—without distinctions, since the law does not distinguish in this regard—that the procedural code requires for its application. It is not a matter of supplanting the prosecutor in the choice of cases in which, for reasons of criminal policy, criminal prosecution must be waived (since certainly, no one disputes that determining the timeliness of the measure in a specific case is the purview of the requesting body), but of ensuring that the action of the former—understood as the application to a specific case—conforms to the legal system. Finally, the fact that the opportunity criterion must be processed in a separate file is not, as the trial court states, an argument that exempts it from its duty to control compliance with the requirements that gave rise to its application, since although it is true that the statement of the collaborating accused takes place at trial, whereby the evidence is produced at that moment and not before, it cannot be ignored that said statement has its reason for being in the mentioned criterion. If this had not been negotiated, the collaborator would not testify, and to that extent we cannot exclude that procedure from judicial control. As correctly indicated in the opinion subscribed by Judge Camacho Morales, the promise of impunity, the promise to waive criminal prosecution, whether total or partial, is what moves the will of the collaborator, and therefore it is necessary to corroborate whether or not that promise conforms to the regulations. This, logically, must take place in the main proceeding, because it is in this proceeding that the criminal prosecution of the collaborator is waived and the punishable conducts are accused that, in light of Article 22, subsection b), must be more reproachable than those that cease to be of interest to the Public Prosecutor's Office. The fact that the opportunity criterion was accepted by a criminal judge is not an obstacle to the issue being heard by the trial court, since in our criminal procedure the parties may repeatedly protest defects that cause them harm, whether these are absolute or relative, when they have not been validated. That said, we also have that in the appealed judgment, some additional reasons are set forth to support the refusal to rule on the criterion, which it is appropriate to examine carefully. The first is that the proceeding in which the opportunity criterion was processed is independent of this one. As already anticipated, this Nombre05 ignores the fact that the statement of [Nombre01 064] was to be rendered in this case; that the opportunity criterion takes place because, at least in principle, the conduct of [Nombre01 064] is less reproachable than that attributed to other defendants, and, finally, that it will be based on what is resolved in this matter that will be determined whether the expectations for which the exercise of criminal prosecution was suspended have been satisfied. That is, even if it is admitted that the opportunity criterion is processed in a certified copy of documents that is independent of the main file, and that the account of [Nombre01 064] contained therein does not have to be brought to the attention of those who appear as accused in this matter (thus, resolutions No. 4142 of 2:51 p.m. on June 2, 1999 and No. 1119 of 11:09 a.m. on February 4, 2005, both from the Constitutional Chamber), the legality of the procedure (compliance with requirements contemplated by the C.P.P.) is part of the issues that the trial court can and must control (whether because the parties request it, or because it understands it must do so ex officio), just as happens with other procedural acts that take place in earlier stages and through which the door is opened for certain evidence to be produced or incorporated at trial (e.g., the resolution that orders an anticipated jurisdictional proof). Furthermore, the trial court incurs contradictions, since if with the argument that the opportunity criterion was processed in an independent proceeding it refused to review the requirements that—erroneously—it classified as substantial (namely, the lesser reproach to the collaborator), it also would lack the competence to verify compliance with those it called formal (namely, express request of the prosecutor's office having the endorsement of the hierarchical superior and jurisdictional approval), yet it did the latter. To the foregoing, an additional inconsistency must be added, namely, despite the fact that the trial judges agreed to examine the procedural issues, they omitted to resolve the claims raised by the defense attorneys of [Nombre01 033] and [Nombre01 041] regarding the lack of reasoning of the resolution issued by the criminal judge (cf. folios 13.676 front and back, 13.677 back, volume XXVIII), despite the fact that the referred defect is clearly one of form. As a second argument, the professionals subscribing to the majority opinion maintain that regarding the opportunity criterion, what was resolved can only be challenged through the appeal against the definitive dismissal that may eventually be handed down in the proceeding where the application of that legal institution is being processed. Such a position, evidently, renders nugatory the right of defense of the accused in the main proceeding who are harmed by the collaborator's statement, especially considering that they are not parties to that procedure (in fact, the a quo recognizes Nombre02). Moreover, the definitive dismissal would supervene, according to Article 23 of the Code of Criminal Procedure, once the ruling—understood as the one handed down by the trial court in this matter—has become final, whereby the position of the justiciable parties, by then convicted, would be consolidated. That is, we find ourselves before the absurdity that the procedure to apply an opportunity criterion to a collaborating accused, even in scenarios where it is openly illegal, would be exempt from all control, because according to the thesis of the a quo the so-called substantial requirements can never be assessed by the judge and because, quite simply, those harmed by the decision to apply the criterion cannot challenge this in any proceeding, (neither in this one that is being pursued against them, nor in the one where the criterion is processed, since they are not parties), which would imply a flagrant violation of Article 42 of the Political Constitution. As a third argument, the majority opinion maintains that analyzing the issue would imply advancing an opinion. This is also not acceptable, since it is one thing to compare the reproaches based on the information supplied by the requesting body when requesting the opportunity criterion, and quite another to issue a pronouncement about whether or not those conducts actually occurred; this last point being what would compromise the impartiality of the trial court. In any case, Nombre11 remained the option of deferring the resolution of the issue for judgment, as Article 342 of the Code of Criminal Procedure expressly indicates and as Magistrate Cruz Castro stated in the dissenting vote invoked by the judges. For all the foregoing reasons, this chamber concludes that the application of the opportunity criterion contemplated in Article 22, subsection b) of the C.P.P.

is subject to judicial review and that therefore the court, be it the criminal judge, the trial court, and even the sentence appeal and cassation bodies, when Nombre02 corresponds, must verify compliance with all the requirements that the legislator demands for such purposes. It is not about supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, they consider that criminal prosecution should be waived, but rather about guaranteeing that in those chosen by the requesting body, the formalities required by the legal system for such purposes are met.

**2) Examination of the prosecutorial discretion (criterio de oportunidad) granted to [Nombre01 064]. Defects present in its procedure and in the resolution that authorized it.** As already explained, this court does not share the criterion of the *a quo* in the sense that it was not competent to assess the propriety of the prosecutorial discretion and in particular, to verify whether the conduct from which criminal prosecution was waived was less reprehensible than that whose prosecution was facilitated. Because of this and since some parties have also claimed this defect in this procedural phase, we proceed to carry out the aforementioned examination at this moment, **concluding that the application of the cited legal institute for the benefit of [Nombre01 064] is illegal**. The resolution where the application of the prosecutorial discretion was accepted was issued by the Criminal Court of the Second Judicial Circuit of San José, at 9:51 a.m. on June 1, 2007 (cf. folios 41 to 89 front, of the file called *“Legajo de solicitud del criterio de oportunidad”*). Regarding this, the first thing that must be pointed out is that **it is a resolution devoid of reasoning**. The criminal judge who resolved the issue, in addition to transcribing the 116 points cited by the Public Prosecutor's Office in its request, accepted it by noting a series of points that can be summarized as follows: ***i)*** Alongside mandatory criminal prosecution, derived from the principle of legality, the law also authorizes the Public Prosecutor's Office to waive it in certain cases regulated by the same law and by *“convenience of the criminal policy of the current system”* (f. 83 front of the cited file); ***ii)*** defining criminal policy and waiving criminal prosecution are discretionary powers that cannot be controlled by the judge: *“In this investigation the Prosecutors make use of that power and request on behalf of the accused [Nombre01 064], the application of the prosecutorial discretion under the premise of subsection b) of the cited article 22 of the CPP, the request that is known, and it is emphasized on the discretionary powers that cannot be controlled by the judge, so that for reasons of procedural economy, and as ultimately it is the Public Prosecutor's Office that determines whether to exercise criminal prosecution or to waive its exercise in the specific case”* (sic, f. 83 mentioned); ***iii)*** the request has the approval of the hierarchical superior; ***iv)*** after citing articles 22 subsection b) and 23 of the Code of Criminal Procedure, the criminal judge affirms that the application of the criterion is appropriate. At this point, she transcribes what was indicated in the request formulated by the Public Prosecutor's Office (f. 85 to 87 front) and, closing the verbatim quote, she affirms: *“According to what the lady prosecutors (sic) state, the weighty reason motivating this petition by the Public Prosecutor's Office is sustained under the premise that it is a matter of complex processing, in which the defendant [Nombre01 064] made a written statement for the purposes of the prosecutorial discretion, committing to testify, at the trial stage or in any oral hearing, where he would provide or ratify all truthful, useful, and pertinent information for the clarification of the facts investigated against the defendants [Nombre01 041], [Nombre01 078], [Nombre01 046] and [Nombre01 033]. Nombre02 itself indicates that the conduct attributed to the (sic) defendant [Nombre02 064] is less reprehensible than that of the defendant [Nombre01 033]. On the other hand, note that the Prosecutor files the request before formulating the accusation, in writing, before the Judge of the Intermediate Stage and as indicated supra with the authorization of the hierarchical superior, which are the formal aspects whose compliance the judge must verify, and to which the legality review that must be carried out is ultimately limited. Consequently, Nombre02 the request is accepted…”* (F. 87 front, the highlighting is not from the original). As observed, **there is no pronouncement whatsoever regarding whether the conduct attributed to [Nombre01 064] was or was not less reprehensible than that imputed to [Nombre02 041], [Nombre01 078], [Nombre01 046] and [Nombre01 033], accused parties whose intervention in the facts, according to what is affirmed in the request for application of the prosecutorial discretion, is what was intended to be accredited through the statement that [Nombre02 064] would give at the trial** (cf. folio 28 front of the file in question, Nombre02 as folio 1, point 1.- of the file called “Acuerdo entre la fiscalía y [Nombre 064] para la aplicación del criterio de oportunidad”, evidence No. 776). This is a *resolution lacking reasoning* and, therefore, ineffective, either because the criminal judge simply did not set forth her reasonings in relation to the issue of the reproach attributable to the collaborator, or because she decided not to do so under the belief that such an aspect is outside of judicial review. In fact, Nombre02 it seems to be inferred from the resolution (cf. last reproduced lines), a position that from what was said *supra*, is erroneous. Added to this, the conclusion set forth above - namely, that the resolution has a defect of lack of reasoning - does not vary even by hypothetically assuming that the court, by transcribing some excerpts of what was stated by the Public Prosecutor's Office, made them its own (and the hypothetical nature of the situation is underlined). The foregoing because the request formulated by the requesting body also presents the same defect. As can be inferred from its reading, **despite the fact that the Public Prosecutor's Office sought the application of a prosecutorial discretion in favor of [Nombre01 064] to facilitate the prosecution of [Nombre01 041], [Nombre01 078], [Nombre01 046] and [Nombre01 033], in its request it did not dedicate a single line to explain why the conduct of [Nombre 064], from whose criminal prosecution it was intended to desist, was less reprehensible than that of the accused [Nombre01 041], [Nombre01 078] and [Nombre01 046]**. Consequently, neither did the resolution that authorized its application and which, as already stated, limited itself to transcribing what was said by the requesting body. In the case of [Nombre02 033] the situation is no less serious, since on the point in question - the reproach - it only states that the conduct of [Nombre01 064] is less reprehensible than that of [Nombre01 033] because the latter was the [...] Nombre53 country and the former a member of a board of directors of an autonomous institution; because [Nombre01 033] was the one who appointed the majority of Nombre10 of the cited board and had interference in the actions of those institutions, and because [Nombre01 064] was also an advisor to the presidential house, with which he owed obedience to [Nombre01 033]. From the above, the Public Prosecutor's Office indicated, *“… the enormous power that [Nombre01 033] held over ‘the institutional direction and action’”*, as well as on a personal level, over [Nombre01 064] can be inferred (f. 30 front of the file). **That is, if we stick to the request, which it is worth reiterating, was not weighed by the criminal judge but only reproduced in her resolution** (f. 86 to 87 front), **the only argument offered to sustain that the conduct imputed to [Nombre01 033] was more reprehensible than those carried out by [Nombre01 064] is related to the position held by the former, leaving aside any consideration of the conduct actually imputed to [Nombre01 064] and to [Nombre01 033]**. As if all of the above were not enough to understand that the resolution that authorized the prosecutorial discretion is ineffective, there is a defect of greater significance that makes what was decided illegal. And it is that, as was denounced at the trial stage and now, in the sentence appeal phase, **it is extracted from the case file that the criminal judge who applied the prosecutorial discretion did not have all the necessary information to decide**. In reality, the conduct that can be imputed to [Nombre01 064] and from whose criminal prosecution was waived, were more than those referred to by the Public Prosecutor's Office when requesting the prosecutorial discretion. From the very statements that [Nombre01 064] had made up to that moment before the Public Prosecutor's Office, in which he narrated conduct extraneous to those investigated here and that can also be considered criminal, Nombre02 as from expert report 297-DEF (evidence No. 598) and file No. 08-000032-0615-PE, followed against Nombre08 for the alleged crime of breach of duties (and which was admitted as evidence in this procedural stage), it is inferred that in addition to what is related to the contracting of the 400,000 lines, by the time the criterion was negotiated there were sufficient elements to suspect that [Nombre01 064] had received several other "prizes or royalties". Specifically, $110,207.°° and $29,833.95 coming from [Nombre01 083] . and [Nombre 085]. (thus, expert report No. 297-DEF-540-04/05, folio 38 of the report); an economic compensation calculated at $56,000.°° by reason of what was resolved on the La Joya electric generation project (cf. preliminary statement (declaración indagatoria) of [Nombre01 064] rendered at 4:15 p.m. on September 30, 2004, f. 132 front of volume I; complaint formulated by [Nombre01 033], f. 19 front of file No. 08-000032-06154-PE and note published in the national news section, in La Nación.com, on Saturday, October 2, 2004, titled “[Nombre01 064] admits another ‘prize’ as a director of ICE”, visible at folios 256 to 258 front of the already mentioned file No. 08-000032-06154-PE). [Nombre01 064] also described some advantages of economic content received on his trips to Prague and Switzerland (cf. preliminary statement of September 30, 2004 and complaint of [Nombre01 033], f. 20 front of file No. 08-000032-06154-PE). Finally, in the complaint filed by [Nombre01 033], it was mentioned that [Nombre01 064] received significant sums of money coming from [Nombre01 091] related to contracts other than those of cellular telephony, Nombre02 as a trip to Brazil paid for by that company [cf., folio 19 of the cited file No. 08-000032-06154-PE and f. 1771 of volume V (this regarding the trip to Brazil)]. Now, **in that same process - the one followed against Nombre08 -, prosecutor Maribel Bustillo Piedra clearly admitted that, with the exception of the royalties enjoyed in Prague and Switzerland, the facts that according to [Nombre01 033] had not been investigated (that is, what is related to the monies that [Nombre01 046] transferred to [Nombre01 064]; with the funds coming from [Nombre01 060] associated with contracts No. 424 H 39552, 424 Nombre21 44031 and 424 H 39562; with the trip to Brazil and with the economic compensations related to La Joya and [Nombre01 083] -[Nombre01 270]) had not been the object of criminal prosecution because they were covered by the prosecutorial discretion**. Specifically, Ms. Bustillo Piedra requested the dismissal of the complaint filed by the accused [Nombre01 033] against the then Attorney General of the Republic with the following arguments: *“DISMISSAL OF COMPLAINT IS REQUESTED. The undersigned, MARIBEL BUSTILLO PIEDRA, Prosecutor of the Various Crimes Unit… I request the Dismissal of these proceedings, based on the following: RELATION OF FACTS. A. Mr. [Nombre01 033], in his capacity as complainant, states that on the occasion of investigation No. 04-006835-647-PE where [Nombre01 064] appears as accused (who has the exercise of criminal prosecution suspended by application of the institute of Prosecutorial Discretion (Criterio de Oportunidad)-), he acknowledged not only having participated in the acts of corruption for the benefit of the company [Nombre02 091] referred to the adjudication and contracting of four hundred thousand mobile telephony lines, he also acknowledged having carried out another series of criminal conducts, supported even with documentation that exists in the main file, for example, the reports of the Economic and Financial Crimes Section of the Judicial Investigation Agency, conducts that in his criterion, were not investigated by the Public Prosecutor's Office.* *The criminal acts to which the complainant refers and which he indicates have not been the object of investigation by the Public Prosecutor's Office against [Nombre01 064], refer to:* * Monies unduly received from the company [Nombre 091] on the occasion of: the purchase of fixed switching centers of the “ICE-Switching program 2000-2001”, the purchase for expansion of telephone switching centers made by ICE on May 23, 2002 and an ICE expansion program ($325,253.32).* * Monies unduly received from [Nombre01 280] for the approval of the concession of the “La Joya” hydroelectric project ($56,000.00).* * Monies unduly received from [Nombre01 046] for payments made to him by the company [Nombre 091] for “various reasons” ($62,562.50).* * Monies unduly received from the company [Nombre01 270]-[Nombre01 083] for granted contracting ($110,207.00).* * Cost of tickets for the San José-Río de Janeiro, Río de Janeiro-Sao Paulo, Sao Paulo-San José trip in first class by the company [Nombre 091] ($5,617.00).* *B. On the other hand, the complainant [Nombre01 033] points out that [Nombre01 064] also acknowledged in his preliminary statement having received royalties as an ICE Director, on a trip made to Prague and Switzerland, facts that he indicates, have not been investigated by the Public Prosecutor's Office in a premeditated manner to protect him illegally.* *II.-On the merits of the matter.* *After a thorough study of these proceedings, the undersigned considers… that in the case at hand the appropriate course is the dismissal of these proceedings, because the facts denounced by Mr. [Nombre01 033] do not constitute a crime.* *A. The complainant himself in his writing… offers the answer to why the mentioned facts have not, for the moment, been the object of criminal prosecution, by indicating…:* *“…such facts have not only been accredited by his confession (that of [Nombre01 064]) but also by expert analysis, and yet due to the evident negotiation agreement existing between [Nombre01 064] and the Prosecutor Nombre08…, they have not to date been the object of any type of investigation or criminal accusation against the confessed criminal [Nombre01 064]…” Indeed. The Public Prosecutor's Office has agreed with the accused [Nombre02 064], the application of the institute called Prosecutorial Discretion and in this regard there exists a signed formal agreement and therefore, at least for the moment, he is not the object of criminal prosecution. Let this moment serve to make some clarifying considerations… The mentioned Prosecutorial Discretion was not carried out between [Nombre01 064] and the accused Nombre08, but rather between [Nombre01 064], his private defender Edwald Acuña Blanco and the prosecutors of the Public Prosecutor's Office Carlos Morales Chinchilla, Criss Gonzáles Ugalde on January 31, 2006, being authorized by the person who was at that time Deputy Prosecutor of the Economic Crimes, Corruption and Tax Prosecution Office, Mr. Warner Molina Ruiz. On the other hand, the mentioned facts have (sic) been the object of investigation, to the point that, as the complainant indicates, they are contained in several documents that form part of the main file, among them, the police reports of the Economic Crimes Section of the Judicial Investigation Agency, but as indicated previously, they form part of the agreement for the application of the institute of article 22… Certainly the investigation carried out by the Deputy Prosecutor's Office for Economic Crimes, Corruption and Tax Matters of the Public Prosecutor's Office is of a supremely complex processing regarding serious corruption crimes committed in high spheres of those who held political power in our country in the first years of this decade… The conduct of [Nombre01 064] is less reprehensible than that of [Nombre01 033], since in the sphere of public function, when dealing with corruption crimes, the mere condition of being the [...] Nombre05 implies a greater reproach than that which any other public official could deserve regardless of the position they hold…* *The Deputy Prosecutor's Office for Economic Crimes, Corruption and Tax Matters of the Public Prosecutor's Office analyzes that in the case all the procedural requirements set forth are met and therefore, it decides to apply the institute with the accused [Nombre01 064], not solely for the monies unduly received from the company [Nombre02 091] corresponding to the contracting by the Costa Rican Institute of Electricity of the four hundred thousand wireless telephony lines of GMS (sic) technology, but also for the other mentioned criminal acts. This clearly emerges from the “Agreement for the application of prosecutorial discretion” carried out at the Deputy Prosecutor's Office for Economic Crimes, Corruption and Tax Matters on January 31, 2006, which the undersigned representative of the Public Prosecutor's Office had in view and which can be requested from that office by the Criminal Judge for analysis. The agreement, as relevant, establishes:… “Present at the Economic Crimes, Corruption and Tax Prosecution Office, the accused [Nombre01 064], of legal age… his defender… the Prosecutors… for the purpose of setting the limits regarding the application of prosecutorial discretion in favor of the accused [Nombre01 064]… it is agreed: 1. The Public Prosecutor's Office… commits to requesting in favor of the accused [Nombre01 064], that the total criminal prosecution be waived in the cause indicated above, Nombre11 and when the testimony he commits to render in this case is not discredited by other evidentiary elements that make it appear false, whether totally or partially…” In the agreement in question it can be observed that the Public Prosecutor's Office in the exercise of its powers conferred by law, commits to requesting in favor of [Nombre01 064], that criminal prosecution be waived, not only for the fact referring to the money unduly received from the company [Nombre 091] on the occasion of the contracting by the Costa Rican Institute of Electricity of the four hundred thousand mobile lines…, but for the totality of the criminal prosecution in cause No. 04-006835-647-PE which encompasses this and the other facts that the complainant mentions, since they all form part of the investigation with the single number indicated, so much so, that the accused was questioned for all those facts and long before the application of this agreement, on September 30, 2004…B. On the other hand, the complainant [Nombre01 033] refers in his writing that in addition to all the unlawful acts commented on, [Nombre01 064] also confessed, in his first preliminary statement of September 30, 2004 in cause 04-006835-647-PE, to having received royalties received as an ICE Director on a trip made to Prague and Switzerland, which is processed in independent cause No.

… this case began in the Public Prosecutor's Office before case 04-006835-647-PE was initiated, it is for this reason that these facts are outside the agreement for the application of the opportunity criterion carried out on January 31, 2006…” (cfr., folios 27 to 36 front of case file No. 08-000032-0615-PE, against Nombre08, for breach of duties; the highlighting is not from the original). As observed, in the same dismissal request that attorney Bustillo Piedra formulated on behalf of the then Attorney General of the Republic, Mr. Nombre08, the aforementioned professional categorically stated that the opportunity criterion encompassed not only the facts related to the contracting of the 400,000 lines, but also the other facts known in case No. 04-006835-647-PE and which, in principle, she enumerated in the dismissal request, clarifying that they were part of the same investigation and that [Nombre01 064] had been questioned in relation to them. Of the facts covered by the negotiation with the cooperating accused, attorney Bustillo Piedra only excluded those related to the trips to Prague and Switzerland, which according to her, were being investigated in a separate case. Now, this court has also undertaken the task of examining both the request for application of the opportunity criterion and the resolution that authorized it, determining the following: a.- the economic payments delivered by [Nombre01 046] to [Nombre01 064] as acknowledgment for the payment management that the cooperating accused carried out before [Nombre01 091], are indeed contemplated in the negotiation (f. 17 to 18, 65 to 67 front, points identified with numbers 80 to 85, docket of request for opportunity criterion); b.- the funds transferred to [Nombre01 064] and related to contracts No. 424 H 39552, 424 Nombre21 44031 and 424 H 39562 (contracts cited by the complainant [Nombre 033] on folios 6 to 8 front of case file No. 08-000032-0615-PE), are indeed linked to the issue of the 400,000 GSM mobile telephone lines, since according to what was stated in the appealed judgment, those contracts were merely fronts used to receive funds that were subsequently delivered to several public officials on the occasion of the aforementioned issue. To that extent, they are sums that are included within the scope of the opportunity criterion (cfr. point 97.- et seq., both of the request and of the resolution that authorized the application of the criterion and in which reference is made to the delivery to [Nombre01 064] of $2,560,253.32 on the occasion of the contract for the 400,000 lines, folios 20 to 28 and 70 to 82 front of the docket). c.- Of the economic payments associated with the La Joya project and the companies [Nombre01 083]-[Nombre01 270], Nombre02 as well as the trip to Brazil, there is no reference in the agreement for the application of the opportunity criterion. d.- The acceptance by [Nombre 064], of an economic payment coming from [Nombre 085] . is not mentioned either in the complaint formulated by [Nombre 033] (case file No. 08-000032-0615-PE), or in the request for application of the criterion, or in the resolution that authorized it.

From all that has been said, several conclusions are drawn:

• 1)At the time the opportunity criterion was negotiated, in the present case there were indications to attribute to [Nombre01 064] criminal acts different from those related to the contract for the 400,000 GSM mobile lines and that had to do with his receipt of various economic payments coming from different persons – both natural and legal – namely: a) sums delivered, apparently, by [Nombre01 280], for the award of the La Joya hydroelectric project; b) sums delivered by the companies [Nombre01 083]-[Nombre01 270]; c) funds transferred by [Nombre02 085].; d) a trip to Brazil paid for by the company [Nombre 091]; and, finally, e) money delivered by [Nombre01 046], apparently as a reward for having interceded before [Nombre01 091] so that they would pay – [Nombre01 046] – what they owed him.
• 2)While the payments mentioned in point e) cited were indeed contemplated in the request for the criterion and the resolution that authorized it, the economic payments related to the La Joya hydroelectric project, those coming from the companies [Nombre02 083]-[Nombre01 270] and the trip to Brazil, for an unknown reason were not included, this despite the fact that they were part of the agreement, as attorney Bustillo Piedra acknowledged, in case file No. 08-000032-0615-PE.
• 3)Although the gift delivered by the company [Nombre 085]. was not contemplated in the request for application of the opportunity criterion and was also not mentioned by attorney Bustillo Piedra when requesting the dismissal of the case against Mr. Nombre08 (which is understandable, because [Nombre01 033] did not include it in his complaint either), at the time of negotiating the opportunity criterion there were elements that gave notice of its existence.
• 4)Regarding all those gifts – including the one coming from [Nombre 085].- the Public Prosecutor's Office did not carry out any investigation.
• 5)There is an irreconcilable inconsistency between what was stated by attorney Maribel Bustillo Piedra in the referred case file No. 08-000032-0615-PE and what was indicated both in the request for the opportunity criterion and in the resolution that approved it. An inconsistency that can only be explained in two ways: i) Attorney Bustillo Piedra would have been untruthful in case file No. 08-000032-0615-PE when requesting the dismissal of the complaint filed against the then Attorney General of the Republic; or ii) attorney Bustillo Piedra told the truth and, therefore, it must be concluded that although some of the facts that in principle were attributable to [Nombre 064] (the gifts coming from Bolaños Alpízar, from the companies [Nombre 083]-[Nombre01 270] and the trip to Brazil), despite having been considered when negotiating the opportunity criterion, for unknown reasons were not contemplated nor included in the request for its application. That is to say, in relation to those facts a “de facto” opportunity criterion was negotiated, devoid of judicial control. For the undersigned, of both alternatives, the second is the one deemed reasonable, not only because in the dismissal request that attorney Bustillo Piedra formulated she recommended that the jurisdictional authority examine the documents related to the criterion (which demonstrates that she acted with transparency), but also because none of the aforementioned gifts have been the subject of criminal investigation and prosecution. Resorting to this same argument (the absence of investigation and prosecution), it is feasible to conclude that the acceptance by [Nombre01 064] of the gift delivered by the company [Nombre 085]., was also one of the conducts negotiated without complying with the established legal formalities. Although this was not described in the dismissal request made by attorney Bustillo Piedra, nor in the request for application of the opportunity criterion or the resolution that approved it, it involves a fact that has been dispensed the same treatment as the economic payments described above and which, according to the prosecutor mentioned so many times, are encompassed in the opportunity criterion. At this point and regardless of the consequences that derive from the foregoing, for this chamber it is necessary to underline the errors that have been committed, not only by the requesting body (which - perhaps through carelessness - omitted to inform the jurisdictional body about some of the facts whose criminal prosecution it dispensed with when negotiating an opportunity criterion with [Nombre01 064] ), but also by the criminal judge who resolved the dismissal request formulated in the cited case file No. 08-000032-0615-PE, since at a minimum, to accept this, he had to verify what was stated by attorney Bustillo Piedra, just as this same professional requested when formulating the dismissal request. A simple reading of the request for application of the opportunity criterion and of the resolution that authorized it would have sufficed to conclude that some of the economic payments received by [Nombre02 064] , unrelated to the issue of the 400,000 lines, were not contemplated (at least not formally and expressly) in the negotiation that was carried out in this matter. It is important to note that the defect of interest, that is, the one that occurred in this process, was also not corrected by the requesting body despite having had that possibility, whether when the accused [Nombre01 033] criminally denounced Mr. Nombre08 for breach of duties, on July 1, 2008 (f. 1, case file No. 08-000032-0615-PE), or during the trial, when the issue was questioned by the defense (cfr. folios 13,676 to 13,705 back, volume XXVIII). The majority vote affirms that the facts submitted to the opportunity criterion are solely those related to the award of the 400,000 mobile telephone lines, as only these are comprised in the factual basis of its request for application and in the resolution that approved it, hence the defense attorneys are not correct in affirming that the criminal judge was deceived to favor [Nombre01 064], guaranteeing him impunity for crimes not included in the proceeding (f. 16,079 front, volume XXXIII). This criterion is not shared. As already explained, the discrepancy between what was raised in the dismissal request formulated in case file No. 08-000032-0615-PE and what was contemplated in the request for application of the opportunity criterion in this case is evident, and to establish what the scope of the agreement was, it is not plausible to rely solely on what was indicated in the latter, since the Public Prosecutor's Office, besides being a single entity, was the one that through one of its representatives admitted and categorically ensured that a series of facts that in principle were attributable to the cooperating accused had not been investigated because they were encompassed in the negotiation. Even during the trial, [Nombre01 064], who refused to render a statement regarding all the already mentioned issues, namely, the economic advantages coming from [Nombre01 083], [Nombre01 270], [Nombre 085] and the one linked to the project called La Joya (cfr. folios 14,975 and 14,976 front, volume XXXI), also refused to indicate whether some of those facts were encompassed by the opportunity criterion (f. 14,995, first line). For the undersigned, the thesis of the majority vote, to the effect that what is relevant is what is stated in the agreement and not what may have happened outside of it, would entail admitting that the Public Prosecutor's Office can handle a double discourse in negotiation matters, one that is recorded within the process and on the basis of which compliance with the legal requirements for the application of the legal figure is examined, and another outside of judicial control, where it can simply dispense with pursuing certain facts in exchange for cooperation. This is a posture that is inadmissible in constitutional terms, since - as already explained - by reason of the principle of legality that governs our system, the Public Prosecutor's Office is obligated to exercise criminal prosecution, a duty that can only be excepted in cases exhaustively indicated by the legislator and under judicial control. And this control can only be exercised when the requesting body, in requesting the application of an opportunity criterion, objectively and transparently contemplates all the facts comprised in the agreement, without omitting core information. Only in this way can the jurisdictional authority determine whether the conduct of the cooperating accused, whose criminal prosecution is dispensed with, is less reprehensible than that of the accused who are affected by the criterion. This is a question that acquires greater importance in legal systems like ours, where the criminal conduct of the collaborator whose prosecution is dispensed with is not necessarily part of the fact whose continuation is avoided or whose criminal prosecution is facilitated (thus, Nombre54. “The King's Evidence.” In: Derecho Procesal Penal Costarricense. San José, Asociación de Ciencias Penales de Costa Rica, 2007, pp. 592 and 599. In the same vein, Third Chamber, resolution No. 2001-0737). And the fact is that if, on the occasion of the opportunity criterion, impunity can be guaranteed to the collaborator for facts different from those that are investigated and resolved with his help (in this case, those related to the 400,000 lines and the gifts that [Nombre01 046] gave him as thanks for his collection efforts before [Nombre02 091]), the importance is notorious that the Public Prosecutor's Office, when requesting the application of the legal institute, does not omit any detail about all the conducts that will not be investigated and pursued, not limiting itself to the description of those whose criminal prosecution is facilitated by the so-called crown witness, since it is on the entire set of facts that the assessment or comparison of reproaches must be made. In summary, if the agreement encompasses, as happened in this case, conducts of the collaborator that are not part of the investigated fact, the request for application of an opportunity criterion must encompass them, since otherwise, the jurisdictional body lacks the necessary information to control whether applying the mentioned legal institute is justified - which has clear utilitarian connotations - to the detriment of the principle of legality and mandatory criminal prosecution. For all of the foregoing, this chamber understands that, when requesting the application of the opportunity criterion, the requesting body had the duty to present all the facts involved in the pact, whether these were related to the investigated fact or were distinct and independent. If they were encompassed by the agreement and their criminal prosecution was intended to be dispensed with, they had to be described, because judicial control is exercised over the agreement and not, as some might interpret, over a part of it, that is, the part that is related to a particular investigation, a position that - it bears repeating - would open the door for the requesting body to arbitrarily dispose of the exercise of criminal prosecution, carrying out, on one hand, within the process, negotiations that are favorable to its interests and in which the requirements of lesser reprehensibility or culpability of the collaborator are satisfied and, on the other hand, outside the legal system, other agreements, exempt from any judicial control. According to attorneys Criss González Ugalde and Maribel Bustillo Piedra (f. 171,400 and 171,401 front, volume XXXVIII), it cannot be asserted that the requesting body hid information from the criminal judge since, although the criterion proceeding was carried out in a separate docket, the request mentioned the case in which it was required (namely, No. 04-6835-647-PE). That is to say, according to these professionals, it was enough for the judge who had to resolve on the request for application of the criterion to study the content of the investigation to discover that [Nombre01 064] had received other economic payments. Such reasoning by attorneys González and Bustillo is erroneous, since according to Art. 22 of the C.P.P., it is the Public Prosecutor's Office that must decide whether to dispense with criminal prosecution totally or partially, or whether to limit this to one or several offenses. That is, the examination that the criminal judge must carry out must start from the limits established by that body. So much is this the case that, even hypothetically assuming that the court detected that additional facts to those contemplated in the request were being aired in the case, this was of no importance, since in accordance with the rules governing the matter, it could well be understood that in relation to those, criminal prosecution remained in force, a thing that as of today is known did not happen in this case, not only because of the affirmations made by attorney Bustillo Piedra in case file No. 08-000032-0615-PE, but also because despite the passage of time, the acceptance by [Nombre01 064] of a series of advantages of patrimonial content that were presented to him outside of the facts submitted to judgment in this matter has not been investigated and pursued. This confirms what has been proposed, in the sense that the requesting body is obligated to act with extreme transparency, objectivity, loyalty, and rigor, reflecting in the agreement ALL the facts submitted to negotiation and not only those it deems opportune. Finally, the situation of [Nombre01 064] himself cannot be ignored, since if he provided cooperation it was because the requesting body committed to dispensing with the criminal prosecution of a series of conducts, and it is inadmissible to endorse practices that cast doubt on the scope of the agreement, preventing the cooperating accused himself, should it be necessary, from demanding compliance with what was agreed.
• 3)Hypothetical inclusion of the conducts omitted by the requesting body when requesting the opportunity criterion and new assessment regarding the reproach that should be formulated as to the conducts attributed to [Nombre01 064], in comparison with those of other accused. Weighing of the arguments put forth by the trial court regarding the particular issue. The resolution that authorized applying the opportunity criterion in favor of [Nombre01 064] not only lacks reasoning, but also, was adopted without having all the necessary information for such purposes, since the Public Prosecutor's Office omitted to include in the request some of the facts whose criminal prosecution it had agreed (apparently “de facto”) to dispense with. This defect acquires relevance to the extent that, with the inclusion of those facts, the jurisdictional body could have concluded that the conduct of the collaborator was not less reprehensible than that of those accused against whom the mentioned legal institute was negotiated. Thus, to determine the essentiality of the error, it is necessary to carry out this hypothetical inclusion exercise, not without first pointing out some aspects: 1) As already indicated before, in the case of [Nombre01 041], [Nombre01 078] and [Nombre01 046], neither the requesting body when requesting the application of the opportunity criterion, nor the criminal judge who resolved on that request, ruled on the reproach that should be made to these in comparison with that which should be formulated against [Nombre01 064]. It is an issue that was simply overlooked, contrary to what happened with [Nombre 033], since when requesting the application of the opportunity criterion, the requesting body alluded to him, explaining the reasons why it considered he deserved a greater reproach than [Nombre01 064], reasons that, as explained supra, the jurisdictional body merely transcribed, without making any weighting or verification. 2) The examination regarding the reproach that should be made to the accused was made for the first time in the appealed judgment, considering in that regard only the facts that were described in the documentation prepared on the occasion of the agreement made, leaving aside those conducts of [Nombre01 064] in relation to which it was negotiated and agreed (“de facto” and not de jure) to dispense with criminal prosecution. 3) The analysis that this chamber must now carry out must go back to the moment when the opportunity criterion was authorized, considering from an ex ante perspective, as indicated by article 22 subsection b) of the procedural code, the conducts whose criminal prosecution was sought to be facilitated with the contribution of the collaborator, and cannot include conducts distinct from these (even though, based on an ex post analysis, the a quo found them proven relying on that contribution and they were useful to argue that the reproach that should be made to some accused is greater than that corresponding to [Nombre01 064]. So, for example, the trial court affirmed that the conduct of [Nombre02 041] is more reprehensible than that of the collaborator since the former extended promises of gifts to several public officials and not only to [Nombre 064], an aspect in relation to which [Nombre01 064] could not make any contribution, since he denied knowing if besides his person and [Nombre01 033], there were other public officials involved. 4) The comparison, which must go back to the moment when the agreement took place, must be made between the conduct or conducts of [Nombre01 064] whose criminal prosecution is dispensed with, and those of the accused whose criminal prosecution is facilitated by the application of the legal institute, it not being legitimate to consider, to establish the magnitude of the reproach, the conducts of other accused that the sentencing court found proven relying on the testimony of [Nombre01 064] but in relation to whom the opportunity criterion was not negotiated (this is the case, for example, of [Nombre01 001] , of [Nombre01 022], or of [Nombre01 028]). That is, the study must be limited to the reproach that should be formulated for the acts of [Nombre01 064] in comparison with that which should be made for [Nombre01 078], for [Nombre 033], for [Nombre02 046] and for [Nombre01 041], since it was only in relation to these defendants that the requesting body requested to apply the opportunity criterion. At this point, it is important to underline that this chamber is not questioning that the statement of [Nombre01 064], once incorporated into the trial, was weighted as one more piece of evidence, even to the detriment of some accused against whom the opportunity criterion was not negotiated (in this same sense, read the judgment of the Third Chamber No. 1030-2014, of 10:00 a.m. on June 27, 2014), however, this does not mean, not by a long shot, that to examine the degree of reprehensibility, as far as the cited article 22 subsection b) is concerned, that circumstance must be weighted, since at the moment the negotiation was carried out, which is precisely the point to which we must go back, the causation of such effects was not contemplated and so much is this the case that the negotiation occurred, it bears repeating, only to the detriment of specific accused ([Nombre01 033] , [Nombre01 046], [Nombre01 041] and [Nombre01 078] ). Having clarified the foregoing, we turn to the substance of the matter, indicating that, for the reasons that will be set forth below, for this sentence appellate court the conducts attributed to [Nombre01 064] are not, nor were they at the time of the negotiation, less reprehensible than those whose criminal prosecution was facilitated with his statement, and - to that extent - the opportunity criterion is also illegal for this reason. Upon signing the agreement, there were elements to suspect that [Nombre01 064] was a public official prone to receiving irregular economic advantages. According to what was affirmed in proven facts numbers 113 and 114 (f.

15.450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) that he received on the occasion of the contract for the 400,000 lines, he transferred to [Name01 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. That is, [Name01 064] appropriated $1,739,690.32, making Name02 the public official who obtained the greatest economic advantages from the criminal plot associated with the matter of the 400,000 lines, a conclusion that is not modified by the fact that, subsequently, when negotiating an abbreviated procedure and later an opportunity criterion (criterio de oportunidad) with the Public Ministry (Ministerio Público), he was willing to deliver to the State significant sums of money and some assets (thus, cf. f. 3 and 4 of evidence No. 308 and f. 3, evidence No. 776). In addition to the foregoing, [Name01 064], before the events investigated here, had received $63,083.59 delivered to him by [Name 046]; $110,207.00 paid by the companies [Name 083].- [Name 270]., $29,833.95 originating from the company [Name 085]. and, finally, an approximate $56,000 related to the La Joya project, the foregoing without mentioning the trip to Brazil that, as reported by [Name01 033], was paid for by [Name01 091]. In summary, by the time the opportunity criterion was negotiated and requested to be applied, there were elements to reasonably believe that [Name01 064] had committed several criminal acts, some related to the matter of the 400,000 lines and many others unrelated to it, all—apparently—of a similar nature: receipt of gratuities (dádivas) in his capacity as a public official. Despite this, it was decided to guarantee his impunity so that, in exchange, he would testify against [Name01 033], [Name01 041], [Name01 046] and [Name01 078] (the latter was not submitted to this criminal process). In the case of [Name01 041], the collaborator was willing to testify that the latter issued him a promise of a gratuity related to the contract for the 400,000 lines and that, subsequently, he transferred the promised funds to him through [Name02 058]. Whereas the collaboration of [Name 064], at the time of agreeing upon the opportunity criterion and as far as [Name01 041] is concerned, made it possible to demonstrate a single fact, namely, that the latter issued him an offer of economic retribution prior to the contract for the 400,000 lines, the impunity guaranteed to the former was for extremely censurable conduct due to its quantity (we speak of repeated acceptances of gratuities, which, at a minimum, demonstrates that for [Name01 064] this was a habit); due to the sums involved ([Name01 064] was the public official who received the most money on the occasion of the contract for the 400,000 lines, even subtracting the part he gave to [Name01 033], and he also received large profits from other individuals and legal entities); and finally, due to his condition as a board member of ICE, a position he used to receive all the economic retributions described. We know that the legislator punishes the corrupter, at least in certain cases, with the same penalty as the corrupt public official, however, in matters of reproach, or in other words, of the culpability of those involved (and which in the case of [Name01 064] is established hypothetically, since with respect to him no accusation has been filed or trial held), it is impossible to ignore how he, despite having the obligation to perform his duties with probity, abused his position of power as a member of the board of directors of ICE, to obtain economic benefits at the expense of various suppliers of the aforementioned autonomous institution. Against this, we have [Name01 041], a private individual who, if we abide by what was stated by [Name02 064], offered him a gratuity in exchange for helping [Name01 091] in three specific areas (migration to GSM, use of bidding processes, and a favorable vote in the adjudication of the 400,000 lines), which would incidentally allow him ([Name01 041]) to obtain a gain. While both paying and receiving are censurable conducts, [Name01 064] does not deserve a lesser reproach than [Name01 041] and, to that extent, it is not legitimate to grant procedural advantages to the former for the sake of securing the conviction of the latter, since as indicated, [Name01 064] was a public official who was not only involved in the events related to the 400,000 lines, but in many others, which demonstrates that receiving gratuities was a custom for him, [Name01 041] being just one of the subjects who, apparently, offered him one of those economic retributions. This chamber does not ignore that the declaration of [Name01 064] was essential to demonstrate that [Name01 041] made offers of gratuities to other public officials, which undoubtedly increases the reproach, however, it must be reiterated, this is a result neither expected nor foreseen when the opportunity criterion was negotiated, to the point that [Name01 064] himself stated he did not know if other officials were in the same situation (cf. e.g., declaration of [Name02 064], f. 14,957 front, last lines, volume XXXI). That is, at the time the agreement was reached, it was not intended that [Name01 064] would make any contribution to demonstrate the culpability of other public officials beyond [Name02 033] and the proof of this is that the legal institute was requested only to the detriment of [Name01 078], [Name01 046], [Name01 041] and [Name01 033]. Therefore, this tribunal would be wrong to use that consequence, to a certain extent unforeseen, to try to give support—retroactively, moreover—to a resolution that lacks all foundation, not only because the jurisdictional body effectively did no analysis, but also because, had it done so considering all the information we know was omitted, it would have concluded that [Name01 064] did not deserve a lesser reproach. The situation is similar in the case of the accused [Name01 033]. As far as the opportunity criterion is concerned, he was accused of having instigated [Name01 064] to accept the promise of a gratuity that was extended to him by [Name01 041] and [Name01 078] and, subsequently, of having received the money that the collaborating accused transferred to him, with the purpose of fulfilling what was promised. According to what was taken as proven (cf. facts numbers 113 and 114, f. 15,450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) that [Name 064] received, the latter gave [Name 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. Faced with this isolated conduct by [Name01 033], we have the repeated conducts of [Name01 064] that were pointed out above, namely, the acceptance of several economic retributions paid by companies and private individuals with whom he had contact due to his position at ICE (namely, $1,739,690.32 originating from [Name01 091] on the occasion of the contract for the 400,000 lines; $63,083.59 delivered to him by [Name 046]; $110,207.00 paid by the companies [Name 083].-[Name01 270]., $29,833.95 originating from [Name01 085]. and finally, an approximate $56,000, related to the La Joya hydroelectric project, Name02 as the trip to Brazil that was also mentioned before). Name02 things are, the difference between the position held by [Name01 033] compared to that held by [Name01 064] is the only argument invoked in the judgment on the merits to affirm that the conduct attributed to the former is more reproachable than all those carried out by the latter, which is unsustainable, because while it is true that the personal conditions of the active subject that are determining factors for the commission of the crime must be considered, this does not Name05 ignore the seriousness of the conduct actually carried out and, in the particular case of the 400,000 lines, [Name01 033]'s actions were not so decisive, to the point that [Name01 064] himself had no problems disregarding the distribution of irregular profits arranged by the former (where—as Name02 affirmed it— [Name01 033] would obtain 60% and he 40%). On the other hand, the fact that [Name01 033] was his hierarchical superior in the presidential house, and that—furthermore— it was the Government Council of the [Name02 033] administration that appointed him as a member of the Board of Directors of ICE, for the purposes of determining the degree of reproachability of both conducts are not of great importance, since, despite that hierarchical relationship, as explained, [Name01 064] would not have had any problem refusing to give [Name01 033] the percentage of the profits they had agreed upon, considering it unfair. In fact, in the debate, despite affirming that the difference in the percentages of profit distribution was justified "… from the point of view of the participants because Mr. [Name01 033] was the [...]", upon being questioned, he acknowledged having stated in previous declarations that those percentages were unfair and disproportionate, since it was he who assumed all the risk, whereas, "… the money arrived at the accounts I provided and I dealt with [Name02 091] to protect the [...], Name56 I only dealt with high-level people from [Name01 091]. From the money received, I had the responsibility of giving Mr. [Name01 033] the money that corresponded to him..." (F. 14,991 front of the judgment, volume XXXI). That is, starting (in accordance with an ex ante analysis) from the facts that supported the prosecutorial request for homologation of the opportunity criterion, Name02 as from the very account provided by [Name01 064], he was not a person who, sporadically and by chance of fate, received a promise of a gratuity and, faced with that, sought the support of the then [...] Name57 to accept it. On the contrary, he was a public official seasoned in these matters, who knew how to act, and who sought out [Name01 033] because he understood that the future act expected of him might require someone more influential. The matter is so clear, that despite [Name01 033] being the [...] Name25 hierarchical superior of [Name01 064], the latter had no problem abandoning the commitment assumed with him and giving him a smaller sum of money, considering that the agreed-upon distribution percentages were unfair. That is, with the purpose of keeping the largest part of the illicit gain, [Name01 064] (according to what he declared) set aside [Name01 033]'s position, which allows the conclusion that the hierarchical relationship, contrary to what was outlined by the requesting body when requesting the criterion, is not an element that, at least in light of the specific case, can be considered determining for the purposes of estimating that [Name02 033]'s conduct was more reproachable. This appellate tribunal does not ignore that (as derived from the statement of [Name01 064]) the then [...] of the country was required to censure his subordinate and report what happened. However, the fact that instead of this he supported him in a way that only he could, does not allow affirming that [Name01 064]'s acts were less reproachable, to the point of justifying the cost of the impunity guaranteed to the collaborator for the sole purpose of obtaining the conviction of a person who at that time held a higher rank. This seems to have been the only purpose that moved the requesting body because, as has been indicated, despite having negotiated the opportunity criterion to obtain information against [Name01 046], [Name01 041] and [Name02 078], in the request formulated by the Public Ministry, no attempt was even made to explain why it was understood that these individuals deserved a greater reproach than [Name 064], something that was attempted to be justified in the case of [Name01 033], although with little success, since the only argument presented is the one already outlined, namely, the consideration that [Name01 033] was [...] and the hierarchical superior of [Name01 064], without noting several issues that have already been mentioned, specifically, that [Name01 064] was also a public official, that he had made a habit of receiving gratuities; that faced with the multiple criminal conducts that could be attributed to him, [Name01 033] was only accused of having been a participant in a crime in which [Name01 064] appeared as the principal, and finally, that the economic retribution that the collaborator obtained on the occasion of the 400,000 lines was the most important of all, and that those received for other acts were also substantial. For all these reasons, it cannot be considered that the conduct of instigation attributed to [Name01 033], whose criminal prosecution was facilitated by the declaration of [Name01 064], was more reproachable than those attributed to the latter. Similarly, the assertion contained in the contested judgment, in the sense that [Name01 064] deserves a lesser reproach because he has been willing to collaborate with the administration of justice is extremely questionable, since, in the first place, if we start from the thesis assumed by the trial court, in the sense that the version he gave after negotiating with the Public Ministry is the true one, we would have to conclude that for months, by denying the promise of a gratuity, he intended to confuse the respective authorities, with the sole purpose of evading his responsibility. Likewise, Name02 as it cannot be derived from that collaboration the conclusion that [Name01 064] is repentant, since it is very clear that his help has not been gratuitous, from the exercise of the right of defense, which is what has characterized the other accused, including [Name01 033], one cannot extract a lack of repentance for the acts that, according to the tribunal, he has committed. Finally, as far as [Name01 046] is concerned, the situation is also quite clear. While both he and [Name01 064] himself were individuals with extensive careers in the public sector, at the time of the events of interest here, it was the latter who was performing public functions. Name02 things are, several crimes that were, at least in principle, attributable to [Name01 064] (including the one related to the contract for the 400,000 GSM lines, which represented an enormous gain for the collaborator) were left uninvestigated and unprosecuted, in exchange for facilitating the criminal prosecution of a person who, before the events investigated here, would have promised him (according to the statement of [Name01 064]) an economic retribution in exchange for helping him collect a sum of money owed to him from [Name01 091], a proposal that the public official accepted and translated into collection actions, subsequently receiving, also without posing any obstacle, the sums that [Name01 046] transferred to him as a token of gratitude for that help. That is, the requesting body was willing to guarantee impunity to a public official who repeatedly received gratuities, some of surprising amount, in exchange for facilitating the conviction of a private individual who figured as a corrupter in just one of those acts, one prior to and unrelated to the contracting of the 400,000 lines. In summary, the conducts of the accused [Name01 064], due to their repetition, due to the amount of the economic retributions obtained and, of course, due to the use of his position to obtain those illicit gains, are not less reproachable than the conduct of [Name01 046] that was sought to be demonstrated with the declaration of the former and that is limited to a single event, where both [Name01 046] and [Name01 064] himself would have participated and would have obtained an illicit patrimonial benefit.

Having said the above, it is important to point out that the tribunal, in the judgment, despite insisting that it lacks competence to rule on the "substantial" requirements provided for in Art. 22 subsection b) of the C.P.P., dedicated a section to presenting some reasons why it understands that the requirement of lesser reproachability was met, which can be schematized as follows: i) the important thing is that the reproach made of the collaborator is less than that of those who were subjected to process, an issue that has nothing to do with the concepts of authorship and participation; ii) reproachability is measured from culpability. The culpability in the criminal wrong must be taken into account, in accordance with Article 71 of the Criminal Code. The judgment of reproach Name05 the determination of the typical, unlawful, and culpable conduct carried out by the collaborator and that carried out by the accused, the capacity for understanding and acting in accordance with the law of both, the reproach of the collaborator and the accused. Personal conditions [Art. 71 subsection d) of the Criminal Code] must be considered to the extent that they have influenced the commission of the crime. Therefore, the criminal judge committed no error in considering those conditions to establish that a lesser reproach corresponded to [Name01 064]. It cannot be affirmed that such an assessment is typical of an author-based criminal law (as considered by the minority vote of the trial court), since the Constitutional Chamber itself has endorsed the consideration of those personal circumstances when setting the penalty, given that, moreover, what is judged is a specific conduct and not what one is, and, in the case of crimes related to public function, the scope of the position held ceases to be an irrelevant condition to have a relationship with the typical prohibition; iii) the comparison is regarding "the reproaches", not the conducts or crimes, nor the penalties, nor the effects of the benefit agreed upon for the collaborator. It is not appropriate to examine the crime or crimes, when there were several, committed by the collaborator or by the accused. The norm speaks of "conduct" and "punishable act", whereby the analysis, more than about crimes and penalties, must be qualitative. It is not enough to know the sanctioning parameters and establish the lowest and highest, but the examination must focus on the presuppositions of Article 71 of the Criminal Code with respect, on the one hand, to the indicated conduct and, on the other, to the punishable act. Therefore, it is also not enough to compare in the abstract, other illicit conducts and economic benefits that [Name01 064] supposedly received; iv) the trial court must control the concurrence of formal requirements and not substantive ones, that is, it cannot control whether the collaborator's conduct is less reproachable. Here it reiterates what was said before, namely, that it is the prosecution that must make this assessment ex ante and that the control of said mechanism corresponds to the judge of the preparatory or intermediate stage, given that the trial court cannot analyze this issue before issuing the judgment, as this would be advancing an opinion. Now, in the specific case, it argues, the tribunal resolved that the criterion complied with the formal requirements, whereby it cannot be affirmed that there was no pronouncement. Furthermore, the body competent to control the origin of the institute did so, so it cannot be argued that there was a denial of justice when each jurisdictional body fulfilled its tasks, without exceeding its own or arrogating those that do not correspond to it, even if it is not to the liking of some of the parties to the process; v) the conduct of [Name01 064] is less reproachable than that of [Name 041], [Name01 033] and [Name01 046], whose prosecution it facilitates. From here and following the statements of Article 71 mentioned, the trial court sets out the reasons for which it qualifies the conduct of [Name01 064] as "less reproachable", using a comparative exercise with each of the accused against whom the opportunity criterion was requested. Regarding [Name 041], the tribunal points out, regarding the objective and subjective aspects of the punishable act, that this whole situation would not have occurred without the existence of a remuneratory proposition made by [Name01 041]. There can be a corrupting person without there being a corrupt person, but not the other way around, hence from the objective perspective, [Name01 041]'s action is more reproachable than that of [Name01 064]. Regarding the importance of the injury or danger, while it is recognized that the conduct of both affects the protected legal interest and the social order, the trigger of the events is the plan devised by [Name02 041], aimed at signing consultancy contracts as a front for the financing of the operation, whereby in the production of social harm and the injury to the protected legal interest, the greater contribution was from [Name01 041], who acted following a previously established scheme. He knew how to set the plan in motion, could define the appropriate amount to make the promise and provoke its acceptance, actions that reveal he acted in a calculated manner, not Name02 [Name01 064], who was unaware of all the illicit machination outlined above, to the point of ignoring that there were other people involved, or the magnitude of the corrupting proposals of [Name01 041], whereby the greater reproach also falls on the latter. Regarding the circumstances of manner, time, and place, [Name01 041] communicated with the other corrupters to generate a financing strategy and to this end, he proposed to deceive the corporation [Name01 060]. He coordinated approaches with public officials, held meetings with those officials—among them [Name01 064]—and provided information to the other corrupting persons so they could make the payments. That is, [Name01 041] had been working on the structuring and assembly of a plan that allowed him, through the payment of gratuities to public officials, for ICE to acquire the products offered by [Name01 091]. In contrast, [Name01 064]'s action not only depends on the described plan, but occurred from the meetings in which both participated, given that the payments he received are singular links within a chain of events that involves the criminal behavior of the former. Regarding the quality of the determining motives, the impact on the protected legal interest of probity occurred both with the acts of [Name01 064] and with those of [Name01 041], however, while the former sought to obtain a patrimonial benefit on an individual basis, in the case of [Name01 041] the sum was greater, since it was he who, together with the other corrupters, had the money for his illicit purposes. Regarding the other personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime, [Name01 041] was the general manager of the company [Name01 091], hence he knew how the corporation was organized, given that he had also worked at ICE and knew its dynamics. He gained the trust of the corporation to the point that he had to propose the consultants to be hired and participated in the payment process of disbursements to them. He also knew ICE and its relationship with [Name01 091], which provided him with the mechanisms to identify the key figures, how to contact them, how to influence their decisions so they would be favorable to the company, and how to obtain the money to overcome their barriers. For his part, [Name01 064] was just one of the pieces in that criminal strategy, one of the officials he had to convince with his proposal. Finally, regarding the conduct of the agent after the crime, while [Name01 041] has done nothing to repair the harm, [Name01 064] has acknowledged his improper behavior and has returned a large part of the money received, whereby the latter's conduct is less reproachable. In the case of [Name02 046], the judgment affirms that the reproach deserved by [Name01 064] is lesser because: Regarding the subjective and objective aspects of the punishable act, [Name01 046] had an extensive public career, greater than that of [Name01 064]. Regarding the importance of the injury or danger, although [Name01 064] was a public official and [Name01 046] was not, the greater impact on the protected legal interest of probity is caused by the latter, since he is the promoter of the criminal action. Regarding the circumstances of manner, time, and place, [Name01 046] appeared before [Name01 064] and asked him to carry out collection actions against [Name01 091] so that the money owed to the former would be paid to him. [Name01 064] accepted and acted accordingly, a reason why [Name01 046] later paid him various sums of money. The majority vote says that it was [Name01 046] who went to [Name02 064], who sought him out at ICE knowing his condition and knowing that [Name01 091] was a supplier of ICE. Based on his command of these antecedents, he presented the remuneratory promise to [Name01 064], which contributes to his greater reproachability. As far as the determining motives are concerned, both were moved by monetary interest, however, [Name01 046] is the instigator of the mechanism (the promise and delivery of a gratuity) that motivated [Name01 064].

Regarding the other personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime, it is noted that [Name01 046] used the knowledge obtained in the performance of his duties in the public sector (he held a position at ICE) and his contact with people from the national political scene, among them [Name01 033], to manage to communicate with [Name01 064]. Finally, regarding the conduct of the agent after the crime, [Name01 046] has not taken any action to repair the damage, while [Name01 064] has, by handing over money and movable property. In the case of [Name01 033], the court indicates, regarding the objective and subjective aspects of the punishable act, that this accused held one of the most relevant positions in public service, a position that is significant for the commission of the attributed crime, since not just anyone can be the active subject of the crime of bribery. Furthermore, being [...] Name58 is a personal condition that not only relates to the typicality of the conduct, but also has to do with the legal interest -probity- as it does not generate the same social harm for a public official of the lowest echelon to be convicted of this crime as it does for the one who occupies the summit of public administration. Although [Name01 064] was also a public official, [Name01 033] had higher rank and hierarchy and, by being the [...], Name59 a probity conduct was required of him; it was from him that honest behavior oriented exclusively to the fulfillment of the public interest was expected, which is why the reproach he bears is greater. Regarding the importance of the injury or danger, although both [Name01 033] and [Name01 064] contributed to causing the injury, the most significant contribution, says the majority vote, was made by [Name02 033], since in typifying conducts such as bribery, the legislator sought to safeguard probity, rectitude, honesty, and impartiality in the performance of the position, so that those who occupy them for remuneration do so interested in satisfying the public interest and not their own interests, much less to unduly enrich themselves through that means. The [...], Name60 having high popular representation, enjoys broad authority and is located in a central plane, both for public control and for the integration of the nation and the definition of its course. He is not only the one who appoints the cabinet and removes it, he is the one who leads it and directs relevant tasks both nationally and internationally. And if the head falters, the body tends to collapse. It is concluded that the weaknesses in [Name01 033] are those that contribute the most to the damage. Regarding the circumstances of mode, time, and place, the trial court considers that although it can be thought that [Name01 064] was the one who contacted [Name02 033] to convey the proposal of [Name01 041] to him, the development of the crime being therefore on the initiative of the former, it must be considered that [Name01 064] went to [Name01 033] because of the trust that exists between the two, because there was political support from one for the other, Name02 as a work link and a friendship relationship ([Name01 064] was a member of the board of directors of ICE and his designation corresponded to the government council presided over by [Name01 033], also being a presidential advisor). Furthermore, before [Name01 064] conveyed the described proposal to [Name01 033], the latter had already urged the former to participate in a prior criminal act, namely, when he asked him to intercede before [Name01 091] so that the payment of money to [Name01 046] would be honored. He even asked him to attend to this matter taking advantage of a trip that [Name01 064] would make outside the country. Thus, instead of [Name01 033] calling [Name01 064] to accounts and demanding a probity conduct from him, what he did was encourage him to accept the proposal, to ask for a higher percentage, and even proposed the formula for distributing the money. That is, although [Name01 064] is the one who had to comply with the proposal, he went to [Name01 033] to make a decision, knowing that he could not decide on his own. This reveals the decisive role of [Name01 033], as he was the one who determined [Name01 064]. Regarding the quality of the determining motives, the legal interest of probity was injured by both defendants and to that extent, the reproach was similar. Revealing is the economic interest shown by [Name02 033], when upon hearing [Name01 064], the first thing he does is ask how much the amount to be received will be and then decides the distribution formula, swelled in his favor, and it is what subsequently, also a reflection of the ambition of [Name01 064], leads the latter to tell him that he does not agree with such distribution. Regarding the personal conditions of the active subject or of the victim to the extent that they have influenced the commission of the crime, the trial court indicates that when [Name01 033] learned of the corrupting proposal, he was the highest authority in the country and one of the few officials that the majority of the population had elected with their vote, so greater zeal was expected from him, Name02 as an inexhaustible effort to be correct in the exercise of his function. Despite this, he opted for the opposite, drove the acceptance of the corrupting proposal, and benefited from the gifts given. The one who declined his duty of probity, points out the a quo, was not just any public official, but the one of the highest hierarchy, even determining [Name01 064] to accept the proposal. Similarly, [Name01 064] did not go to just anyone to inform them of the proposal, but to the [...] Name61 of all Costa Ricans and leader of the administration, moreover an influential figure for [Name01 064], not only for their friendship but for their functional link. To that extent, we have on one hand [Name01 064], director of an autonomous institution and presidential advisor, and on the other [Name01 033], maximum leader with decision-making power over the appointments held by the former and from whom it was required to a greater extent to behave in accordance with the law, just as the reproach for not doing so is greater. Regarding the conduct of the agent after the crime, [Name01 033] has not taken any action to reduce the impact of the harm caused by his actions, while [Name01 064] accepted his responsibility, was willing to agree to an abbreviated trial and serve a custodial sentence for which house arrest was not applicable as credit. This option did not prosper because those who appeared as plaintiffs in this process opposed it, with the prosecution opting for the opportunity criterion. [Name01 064], moreover, appeared at the hearing and accepted his behavior, also having handed over part of the money received and two vehicles. Although the defense has questioned that he has not returned the totality of the money and that the vehicles are old, the truth is that, if starting from that parameter, one would have to conclude that [Name01 033] has not returned anything. The trial court finishes its presentation by pointing out that the previous reasonings explain why, at the time, it estimated that it could not resolve on the issue of greater or lesser reproachability, namely, because it is the responsibility of another court and because impartiality could be compromised by making that analysis, no matter how "abstract" it was (folios 15,395 to 15,415 front of volume XXXI). So far the argument of the court. For those of us who subscribe to this resolution, the previous reasonings are erroneous not only because of what was said supra, when examining the issue of the reproach that can be made to each accused in relation to [Name01 064], but because of what will be set forth below. First of all, it is clear that to determine the intensity of the reproach in the case of [Name01 041], the a quo not only considered his culpability in relation to the specific fact that was intended to be demonstrated through the statement of [Name01 064] (namely, that the former made a promise of a gift to the latter at the [Name01 094] restaurant and that he then transferred a large sum of money to him through [Name01 058]), but also the culpability for all the other facts that it found to be proven against him and that were unknown to [Name 064] at the time when the opportunity criterion was negotiated, e.g., that he was a co-perpetrator of a criminal plan that included other public officials, that there were approaches with these and delivery of economic retributions in similar modal and temporal circumstances; or that [Name01 041] had at his disposal larger sums of money than [Name01 064], this to the extent that he was the one who identified the public officials to whom payment should be made and in what amounts. As can be seen, we are talking about issues that are unrelated to the facts that, at the time of the negotiation, were intended to be demonstrated with the testimony of [Name01 064], which could therefore not be considered when weighing the issue of reproach (at least not for the purpose of legitimizing the opportunity criterion), nor can they be taken into account now, since that examination (ex ante) must necessarily be traced back to the date on which the agreement was signed, bearing in mind the facts that were intended to be elucidated with the collaborator's statement, and not those that, after the hearing, have been deemed accredited with his help. The undersigned do not ignore that the statement of [Name01 064] was an indication that allowed the trial court to confirm that, besides the collaborating accused, there were other public officials involved and that [Name01 041], by common agreement with [Name01 028], used the corporation [Name02 058] to legitimize and then distribute the funds coming from [Name01 060]. Nor is it possible to ignore, making an a posteriori examination, that the statement of [Name01 064] and, in particular, his affirmation that a promise of a gift was made to him prior to the contract for the 400,000 lines, was the most important indication that the trial court used to deem it proven that a similar promise was made to the remaining accused public officials. However, these consequences derived from the statement of [Name02 064], which were not contemplated when negotiating the opportunity criterion, cannot be considered for the purpose of establishing the greater or lesser reproach that can be made to [Name01 041] compared to the collaborating accused, because his statement was negotiated solely to be used against [Name01 041], [Name01 033], and [Name01 046], and not to facilitate the criminal prosecution of other accused, e.g., [Name01 028], or of the public officials who also received economic retributions and whose connection to the facts was unknown even by [Name02 064] himself. That is, in the case of [Name01 041], at the time of negotiating the opportunity criterion, what could be demonstrated with the collaborator's statement was that the former had made him a promise of a gift and that, after the award of the contract, he delivered a sum exceeding two and a half million dollars to him through [Name01 058], which he shared with [Name01 033]. Thus, to facilitate the criminal prosecution of a particular conduct, the requesting body opted to guarantee the impunity of someone who, in addition to accepting that promise and receiving the mentioned sum, received other economic retributions that are not negligible, this in his condition as a public official, breaching the duties that had been entrusted to him. It is important to insist that, to examine the reproach, the transcendence that the statement of [Name01 064] had in the demonstration of other facts cannot be considered, because this was not foreseeable at the time when the criterion was negotiated and such is Name02 that the application of the legal institute was requested only to the detriment of [Name01 033], [Name01 041], [Name01 078], and [Name02 046]. Finally, it is important to note that the thesis of the trial court, in the sense that the conduct of the one who pays or corrupts is more reproachable than that of the public official who receives the gift or allows himself to be corrupted, lacks all foundation, for several reasons. The first, because, according to the crime of penalty of the corruptor, the sanction that corresponds to him is the same as the one provided for in the legislation for the public official. The second, because unlike what happens with the corruptor, it is the corrupted who disregards his duties and compromises the trust of the citizenry in its institutions, by using his position to enrich himself. Name02 things, to argue, without more, that the conduct of [Name01 041] is more reproachable than that of [Name01 064] because the former made the promise and the latter only accepted it, is -in the least of cases- an assertion that finds no support whatsoever. Regarding [Name01 033], the same situation applies. From the arguments cited by the court, it is extracted with clear clarity that the greater reproach against him rests on the hierarchy of the public functions he performed. Any analysis of the seriousness of the conduct actually carried out by the then [...], Name17 was left aside Name02 to compare it with the conducts that were not pursued. It was not considered that [Name01 064], at the time of the negotiation, appears as a subject involved in multiple criminal acts of a similar nature, which demonstrates that he was prone to receiving gifts; that it was he, and not [Name01 033], who, according to the same majority vote, assumed the authorship of the criminal act and that he was also the one who, of the two, obtained greater economic profit, because despite [Name01 033] requesting 60% of the criminal profits, [Name01 064] had no qualms about varying that distribution considering it "unfair." There are no reasons to doubt that [Name02 033] had a hierarchical relationship with [Name01 064] at the time of the facts. It is not unknown that he had appointed him minister, then presidential advisor, and then, through the Government Council that he presided over, appointed him as a board member of ICE. This, which certainly from an ethical perspective makes the conduct of [Name01 033] more reprehensible (because if things happened as [Name01 064] narrated, he should have reported it immediately instead of supporting his intentions), from a legal point of view does not allow establishing that the reproach for the latter is of lesser entity if everything else is considered. Even, it is important to note that in the case of [Name01 064], the condition of public official also played a core role, not only for what is related to the contract for the 400,000 lines, but for all the other receptions of gifts in which he appeared as a suspect. Finally, see how the trial court, while it considered the conducts of [Name01 041] and [Name01 046] more reproachable with the argument that it was these who were the promoters of the execution of the crime, who had the initiative to seek out [Name01 064], in the case of [Name01 033] it disregards this reasoning, by concluding that although it was [Name01 064] who decided to convey the proposal to [Name01 033], this does not make his conduct more reproachable since he acted Name02 out of the trust and support given to him by the then president. Name02 things, while it is true that [Name01 033] was, at the time of the facts, the highest-ranking public official, this sole circumstance does not allow justifying the decision to guarantee impunity to [Name01 064], since the facts in relation to which criminal prosecution is waived (and which include the one with respect to which it is affirmed that [Name01 033] is the instigator and [Name01 064] the instigated perpetrator), contrary to what the a quo points out, merit greater reproach than the conduct that is intended to be pursued. Not accepting it this way, also leads to understanding that the reproach, instead of depending on the seriousness of the fact and the personality of the participant, responds exclusively to the personal characteristics of the active subject and, in the case of public officials, to the position held, in such a way that regardless of the conducts actually carried out, the higher the hierarchy Name11, the greater the reproach will be. In summary, for all the foregoing, it is concluded that the opportunity criterion granted to [Name01 064] is illegal. As a consequence of the foregoing, the statement he made at the hearing as a collaborating accused is illegal evidence and Name02 is so declared. For greater abundance, we will proceed to resolve some questions formulated by [Name01 033] in relation to the credibility that can be granted to the word of [Name01 064] and on the occasion of which, this appeals court concludes that it is implausible.

**4) Regarding the assessment of the testimony given by [Name01 064] at the hearing**. An issue beyond all discussion is the obligation of the trial court to analyze the statement given by the collaborator [Name01 064] in accordance with the rules of sound criticism. The court weighed it, concluding -erroneously, as this chamber considers- that it was credible. For such purposes, it took into account several circumstances, some general and others particular, described in relation to each accused. From folios 16,073 front onward of volume XXXIII, the appealed judgment explains: **i)** The statement of [Name01 064], contrary to what was said by the defense attorneys of the accused, was plausible and disinterested, since it was conceived, not under the protection of an opportunity criterion, but months before agreeing on it, under more burdensome conditions for the collaborator, namely, on the occasion of an abbreviated proceeding. In this, he accepted his responsibility and was willing to have a sentence of 4 years in prison imposed on him, a proceeding that did not prosper due to the opposition of those who requested to intervene as plaintiffs, among them people close to Mr. [Name01 033]; **ii)** Faced with the expectation of submitting to an abbreviated proceeding, [Name01 064] handed over the sum of $1,401,000 dollars and two vehicles, as economic compensation; **iii)** To think, as lawyer Gairaud does, that [Name01 064] accepted such a custodial sentence because he knew that by reason of the house arrest suffered, he would be granted the benefit of article 55 of the Criminal Code, is to ignore that since May 9, 2005, the proceeding having begun at the end of 2004, [Name01 064] was willing to accept the facts and to be sanctioned; that by May 2005, two years had not elapsed and therefore, half the sentence could not be considered served, with the concession of that benefit also being the responsibility of the National Institute of Criminology and not the Public Ministry; **iv)** From the very first moment, [Name01 064] was willing to have his bank accounts, cards, and telephone calls investigated and offered what was within his reach for the investigation; the same from his wife and his mother. His first statement took place on September 30, 2004, and already by October 5, he was authorizing the opening of his accounts and the obtaining of banking information; **v)** On October 12, 2004, he showed interest in compensating the damage caused when he proceeded to deliver to the criminal court a certificate for the sum of $1,401,241.36; **vi)** As already indicated, on May 9, 2005, 8 months after the case started, he agreed to the application of an abbreviated proceeding under the terms indicated, namely, serving a sentence of four years in prison without any benefit, obligating himself to give testimony at trial and paying the amounts mentioned to the Office of the Attorney General and to ICE, Name02 as well as handing over two cars. The court points out that at that time, [Name01 064] could not become eligible for the benefit contemplated in article 55 of the Criminal Code; that such option was not negotiated with the Public Ministry nor was it within the competences of this body. It adds that if the proceeding in question was not carried out, it was due to the refusal of the plaintiffs Fernando Apuy Sirias and Freddy Coto Varela, where, at least the former, had a connection with [Name01 033]. This is what, ultimately, led the prosecution to agree on an opportunity criterion. It is not true, therefore, that [Name01 064] was benevolently benefited with the opportunity criterion so that, in exchange for his impunity, he would "sink" the other accused, but rather it was the efforts made by those close to [Name01 033] that prevented the application of the abbreviated proceeding, it being the case that already through this, [Name01 064] had committed to testifying at the hearing; **vii)** With other accused in this case, abbreviated proceedings were negotiated, with sentences of three years in prison and the benefit of conditional execution (e.g., [Name01 068], [Name01 105]). Thus, it cannot be said that there was preferential treatment for [Name01 064] when a sentence of four years in prison was agreed upon with him; **viii)** According to the minority vote, [Name01 064] was allowed to keep around one million dollars in gifts in exchange for giving evidence, but there is no proof of this. What is on record is that, with or without an abbreviated proceeding, with or without an opportunity criterion, [Name01 064] handed over a sum of $1,401,241.36 dollars since October 2004. For the majority vote, if [Name01 064] had wanted to keep some money in exchange for his impunity, he would not have handed over that sum, much less would he have negotiated such a possibility. Furthermore, according to the dynamic insinuated by the defense, if the Public Ministry wanted to compensate [Name01 064] for his statement, one would have to think that it also wanted to compensate him when, for that same sum, he agreed to apply the abbreviated proceeding and impose 4 years in prison, or that it wanted to compensate [Name01 105] when he only returned $100,000 having received more than $1,000,000, but that it did not want to do so with [Name02 068] when it negotiated an abbreviated proceeding and the return of more than $1,000,000 with him. What this reflects is that the negotiation with the accused was not subject to the issue of the exact return of the amount from which they benefited; **ix)** Although [Name01 064] did not answer some questions from the defense attorneys of [Name01 033], [Name01 041], and [Name01 018], this was because he was interrogated in relation to facts in which his story would self-incriminate him, hence he had the right to abstention, or because they were facts unrelated to the accused. In any case, it was the court that warned him (the collaborator) in that sense, with which this situation does not undermine his credibility at all. Starting from folio 16,085 front of the same volume, the a quo undertook the task of setting out the reasons why it considers that the story of [Name01 064] can be verified with other evidentiary elements of a direct or indirect nature. It clarifies, of course, that this verification is in relation to the general aspects of his version and not with respect to each of the facts related by him, as this would render the opportunity criterion innocuous: **a)** [Name01 033] was [...] from May 8, 1998, to May 8, 2002. **b)** [Name01 064] had an extensive career in public service. He was minister counselor in charge of business for the Embassy of Chile from 1978 to 1983; deputy in the periods from 1986 to 1990 and from 1990 to 1994; minister in the administration of [Name01 033] from May 1998 to July 1999. Later, in this same administration, from August 1, 1999, to May 9, 2002, he was appointed presidential advisor and general director of the presidential house. He was also appointed by the Government Council as a director of ICE, starting August 3, 1999, both positions (as minister counselor or general director of the Presidency of the Republic and as a member of the board of directors of ICE), held simultaneously (of the above, there is abundant proof, e.g., numbers 15, 303, 304, 305, 638.1 and 638.2, all cited at folio 16,091 front and following). From all this, it is extracted that [Name01 064] was a person close to [Name01 033], who depended hierarchically on him. It was also ruled out that [Name01 064] harbored a feeling of animosity against [Name01 033]; **c)** Despite the fact that ICE was an autonomous institution, it maintained a link with the central government. This is not solely the result of institutional practice, but of the legal system that Name02 so provides, by leaving in the hands of the Government Council the appointment of the directors of the autonomous institutions and attributing to [...] Name62 the power of direction and coordination of tasks; **d)** There is abundant proof that allows demonstrating that, even before the facts investigated here, the policy of giving attentions to public officials of ICE was frequent. [Name01 041] spontaneously accepted having paid gifts to public officials. [Name02 105] and [Name01 078] submitted to a conformity proceeding, with the consequent acceptance of charges.

There are also three ICE officials who have admitted their responsibility ([Nombre01 068] in an abbreviated proceeding, [Nombre01 001] spontaneously admitted to a media outlet having received money from [Nombre01 091], and [Nombre01 064] admitted it before the court), thereby corroborating the collaborator's statement, to the effect that [Nombre01 041] and [Nombre01 078] made him a promise of a gift (promesa de dádiva) and that he accepted it after bringing it to the attention of [Nombre01 033]; e) lunches and other activities between employees of [Nombre01 091] and public officials were frequent. There were encounters between the corruptors and [Nombre01 064], [Nombre01 001], [Nombre01 018], [Nombre01 063], and [Nombre01 022]. There were also a series of other courtesies for public officials, e.g., payment for a trip ticket to Paris for “[Nombre01 064]” and his wife (Exhibit No. 55, folio 91), or hotel reservations for [Nombre01 022]. f) Some public officials frequented the facilities of [Nombre01 091], for example, [Nombre02 022] and [Nombre01 001]. Likewise, [Nombre 041] sent envelopes bearing the legend "confidential and personal" to some public officials ([Nombre02 022], [Nombre01 001], and [Nombre01 018]) at their homes and offices. He also sent them to the corruptor [Nombre02 028]. g) [Nombre01 046] had a relationship with [Nombre01 033]. According to [Nombre 064], he undertook collection efforts starting in mid-2000 before [Nombre 041] at the request of [Nombre01 046] and through the intercession of [Nombre02 033]. [Nombre 046] wrote an opinion piece (Exhibit No. 592.7), where he states that he, at the request of [Nombre01 078], carried out a transaction to [Nombre01 110] (a company linked to [Nombre01 033]) and that he never collected any commission for favors done to two [...], one who appointed him ambassador and another a bank director (the latter is [Nombre01 033]). With this, the court says, the relationship between [Nombre01 046] and [Nombre01 033] is corroborated, and although the former exonerates the latter from responsibility in that article, the true explanation behind those payments is already known. h) Two of the directors appointed in the [Nombre01 033] administration are linked to these acts of corruption ([Nombre01 064] and [Nombre01 068]). A third, [Nombre 022], although appointed in the Figures Olsen administration, had ties to [Nombre01 033]. i) Before making the proposal to [Nombre01 064], [Nombre 041] had already initiated a similar approach with respect to [Nombre01 001], when meeting with him on Friday, December 1, 2000, also attended by [Nombre01 078], [Nombre01 111], and [Nombre01 112]. Exhibit No. 81 demonstrates that this lunch existed, "… which allows one to appreciate how the corruptors were resorting to a similar strategy for the remunerative proposals, no longer only with respect to [Nombre01 064] …" (f. 16.129 recto); j) At the time the meeting took place at the [Nombre 094] restaurant between [Nombre01 064], [Nombre02 041], and [Nombre01 078] and later, the next day, between [Nombre 064] and [Nombre01 033] at the latter's house, all those involved were in the country. The call from [Nombre01 078] to [Nombre 064] occurred, the court says, on December 1, 2000, a date on which he also met with [Nombre 041] and [Nombre02 001]. The encounter at [Nombre01 094] was on Saturday, December 2, 2000, and the encounter between [Nombre01 033] and [Nombre01 064] took place on Sunday, December 3, 2000. According to the court, if [Nombre01 064] were lying, there would not have been a match between the data obtained from the migration movements of those involved ([Nombre01 064], [Nombre01 078], [Nombre01 041], and [Nombre01 033]), the expense reports of [Nombre01 041] (which account for a meeting on December 1, 2000, between [Nombre01 078], [Nombre02 041], [Nombre01 111], [Nombre01 112], and [Nombre01 001]), and the flight itineraries. k) The existence of these meetings is also demonstrated by considering that [Nombre01 064] voted in favor of the award of the 400,000 lines and that months after that vote, he received the gift (dádiva) that he shared with [Nombre01 033]. The distribution of the money reflects a strategy aimed at hiding its origin. Furthermore, [Nombre01 064] received a sum similar to other defendants but doubled, which reveals that the corruptors had been informed they were paying two officials and not one. Moreover, there is a coincidence in the modal and temporal circumstances for the delivery and receipt of the gifts (dádivas) paid to the three directors of ICE, namely [Nombre01 022], [Nombre01 068], and [Nombre02 064], the same as to [Nombre02 001] and [Nombre01 018]; l) there is evidence that although the quantity of 400,000 cellular lines was formally mentioned for the first time on December 5, 2000, that data was already known beforehand by the corruptors, just as [Nombre01 064] stated. There is a note from November 10, 2000, where [Nombre01 098] points out to [Nombre02 041] that although the announcement made by [Nombre02 095] about the future public tender (licitación) of the 600,000 GSM cellular lines is favorable, they must maintain pressure to not allow them to continue favoring Lucent and Ericsson, as it seemed that ICE planned a purchase of 200,000 to expand the current ones (TDMA). This reveals that the corruptors were informed of what was happening and how, despite the announcement of the migration, they thought that [Nombre01 091] should not sit idly by, but must accelerate that process (as also suggested by the note of November 22, also sent by [Nombre01 098] to [Nombre01 041] regarding the appointment of [Nombre02 001], Exhibit No. 396), aside from noting that if a direct purchase of 200,000 TDMA lines were made, 400,000 lines in GSM technology would remain. According to the judges, that is the datum that [Nombre01 041] and [Nombre01 078] were handling as of November 22, 2000, and, therefore, it is ruled out that [Nombre01 064] mistakenly constructed his statement, anticipating information that would not be known until December 5, 2000. m) [Nombre01 091] sought to be treated with equity and felt the need to defend its rights. In the session of December 5, 2000, in which the comprehensive telecommunications plan project was approved, a proposal was presented to acquire 600,000 lines, specifically, 200,000 from the companies Lucent and Ericsson in TDMA technology and 400,000 that would be awarded to [Nombre01 091], Siemens, Nortel, Ericsson, and Lucent with GSM technology. In a second stage, 200,000 mobile lines would be approved for the third-generation (3G) tender. It is observed how, although the opening to GSM is proposed through the award of 400,000 lines and the inclusion of [Nombre01 091] as an offeror, a "floor right" is also respected for the companies Lucent and Ericsson, which denotes ambivalent behavior by ICE, by continuing to promote the purchase of TDMA lines. The evidence also demonstrates that [Nombre01 091] had been denied participation in the contracting of cellular lines, which changed as of February 27, 2001, after the remunerative promises were made, upon being considered by ICE's board of directors as a possible offeror in the acquisition of the 160,000 cellular lines via direct contracting, given that by then the contracting of the 400,000 lines was already underway. Likewise, the evidence allows accrediting that on August 28, 2001, the contract for the 400,000 cellular lines was awarded to [Nombre01 091], a session attended by [Nombre01 064], [Nombre01 068], [Nombre02 022], Nombre02 as well as other ICE public officials. n) It was ruled out that [Nombre01 064] was paid only for the award of the 160,000 lines, since this defendant was not present at session No. 5271, where that matter was decided. o) It was demonstrated through abundant evidentiary elements—expert, documentary, and testimonial—that [Nombre01 064] received money from [Nombre01 060] and transferred part of it to [Nombre02 033]. So far, these are the reasons of the trial court for granting credibility, according to its criteria, to the statement provided by [Nombre01 064] at trial.

Having analyzed the foregoing indicia, the undersigned appellate judges consider that the conclusion of the a quo, in the sense that [Nombre01 064]'s statement is believable regarding the promise of a gift (promesa de dádiva) that was extended to him in relation to the contract for the 400,000 GSM lines, is contrary to the rules of sound judgment. It is undeniable that [Nombre01 064] gave a statement from the beginning of this proceeding; however, it was many months and several investigative statements later that he affirmed having received a promise of a gift (promesa de dádiva) from [Nombre01 078] and [Nombre01 041] related to the contract for the 400,000 GSM telephone lines. Now, it is not that [Nombre01 064] initially remained silent about the cause of the economic retributions received, only to later decide to pronounce himself on the matter, but rather that he had expressly and repeatedly indicated to the Public Prosecutor's Office that the monies received were offered and delivered to him after the award, by way of a "reward." That is, [Nombre01 064] ruled out that a promise of a gift (promesa de dádiva) had been extended to him prior to the award of the mentioned contract. According to what is extracted from the review of the audio and video recordings of the hearing, specifically from what is related to the testimony that [Nombre01 064] gave before the trial court, as well as from the appealed judgment itself, we have that on several occasions and based on Article 343 of the Code of Criminal Procedure, the statements that the defendant collaborator made before the charging authority were incorporated in what was contradictory to what he was stating at trial, establishing with crystal clarity that from September 30, 2004, and repeatedly (cfr., e.g., the expansion of the statement he made on October 15, 2004, second paragraph of folio 9,003, incorporated by reading at the hearing as recorded on f. 14,996 recto of the judgment, volume XXXI), [Nombre01 064] stated that it was after the award and even when the execution of the contract was taking place, that he was contacted to inform him that there was "a reward" from [Nombre01 091]. As is effortlessly concluded, the defendant collaborator was categorical in ruling out that a prior promise had been extended to him, and it was some time later, on May 9, 2005, when for the first time he indicated something completely different, specifically, that [Nombre01 041] and [Nombre01 078] at the end of 2000 or the beginning of 2001, at the [Nombre01 094] restaurant, extended him a promise of a gift (promesa de dádiva) in exchange for his help to [Nombre01 091] with the migration to GSM technology, with the implementation of public tenders (licitaciones) instead of direct contracting, and with his favorable vote for the company in the contract for the 400,000 lines (cfr. f. 2,992 to 3,010 recto, volume VIII). At a party's request, the court incorporated the second paragraph of folio 2,999, which, as relevant, states: "So then Mr. [Nombre01 078] arrived accompanied by Mr. [Nombre01 041], an exchange of introductory phrases took place, and Mr. [Nombre01 078] tells me that they are worried, that they have increasing certainty that the tender is going to be bypassed to harm [Nombre01 091]. He also told me that Mr. [Nombre01 046] had indicated to them that he had the power to bring down said tender, even with the help of Nombre63, for those reasons they ask for my help so that the process is not aborted and that if everything goes well the company would give me a gratuity. I asked him what I had to do, so they told me that all they needed was for the tender to happen, I asked them if there was anyone to talk to and they told me no, that all they needed was for the tender not to be aborted. Later I asked them what the reward consisted of and they told me between one point five percent (1.5%) and two percent (2%) of the tender, outside of expenses…" (Transcription made at f. 15,001 of the judgment, volume XXXI). That is, it was approximately eight months after having given his first statement that [Nombre01 064] stated that there was a promise of a gift (promesa de dádiva) prior to the contracting of the 400,000 lines, one that he shared with [Nombre01 033]. The statement in which [Nombre01 064] changed his version of the facts began to be given on the very day he signed an agreement with the Public Prosecutor's Office for the application of an abbreviated proceeding, in which the charging authority conditioned its consent on [Nombre01 064]'s expanded investigative statement complying with certain terms, namely, "… to clearly set forth the existence of negotiations and of a promise of delivery of money prior to the approval of the contract for the 400 K between the Instituto Costarricense de Electricidad and the company [Nombre 091]. Likewise, the defendant [Nombre01 064] will make known the name of a reference witness, who has knowledge because the defendant [Nombre01 064] made the promise of delivery of money prior to the approval of the contract [Nombre64 091] known to him. On the other hand, he will make an even more extensive statement about the delivery of money to the co-defendant [Nombre01 033], clarifying each of the transactions carried out regarding the money corresponding to the gifts or payments from [Nombre01 091]. He will also refer to the knowledge that the co-accused [Nombre01 033] had of the promise of gifts or payments made by [Nombre01 091], as well as the latter's approval for [Nombre01 064] to receive said monies… The sentence agreed upon will be four years in prison without any type of reduction." (F. 2, Exhibit No. 308, prior agreement document for the application of an abbreviated proceeding). It is true, as the trial court points out, that the abbreviated proceeding was not applied for reasons unrelated to [Nombre01 064] and that the agreed sentence did not permit the application of benefits such as a conditional execution sentence. This circumstance, however, does not permit the conclusion that [Nombre01 064]'s first version was false and the second was true, especially considering that this last version was given precisely under the shelter of a negotiation with the Public Prosecutor's Office, which from that moment on, conditioned the abbreviated proceeding on [Nombre01 064] including in his account certain information (specifically, about the promise of a gift extended to him before the award, the identification of a reference witness, and greater details about the conduct of [Nombre01 033], the knowledge he had of the promise, and the consent he gave for [Nombre01 064] to receive the monies). That is, upon negotiating with the charging authority, [Nombre01 064]'s account changed drastically on a core aspect, specifically, concerning the existence of a promise of a gift (promesa de dádiva) prior to the award. It is an inconsistency that acquires major importance when evaluating the credibility of the statement, not only because the configuration of the crime—aggravated corruption by improper bribery—depends on the demonstration of the prior promise made by [Nombre01 041] and [Nombre01 078], but because contrary to what was indicated by the a quo, its existence is supported only by the defendant collaborator's own word. According to the appealed judgment, what [Nombre 064] stated is true because all those involved were in the country on Saturday, December 2, 2000. This is, by all appearances, untenable, since from that single indicium (the presence of [Nombre01 041], [Nombre01 078], and [Nombre01 064] in national territory) one could not extract as a reasonable and natural conclusion that the meeting existed, much less that the promise was made. It is important to note that although there is evidence that [Nombre01 078] and [Nombre01 041] met on December 1, 2000, with [Nombre02 001] and other people (cfr. voucher from folio 6 bis and invoice from folio 7, expense report from folio 1, Exhibit No. 81 which this chamber has reviewed) and that [Nombre01 041] also met with [Nombre02 001] on November 29, 2000 (cfr. also Exhibit No. 81), this is absolutely inconsequential for what is relevant here, since, as the court itself acknowledged, these meetings were frequent, without it being possible to assert that they were aimed at making illicit proposals to those public servants (f. 16,112 recto, volume XXXIII). Therefore, it is a mere supposition by the judges who subscribe to the majority vote to conclude that the meeting that took place one day before the one described by [Nombre02 064] allows demonstrating that "… the corruptors were resorting to a similar strategy for the remunerative proposals, no longer only with respect to [Nombre01 064], but also with respect to another co-defendant and ICE official..." (F. 16,129 recto, volume XXXIII). The same must be said in relation to the meeting between [Nombre01 064] and [Nombre01 033]. The fact that both were in national territory, an indicium verified through the documents that account for their migration movements, does not even allow establishing with a degree of probability that the cited meeting existed. It is important to remember that [Nombre01 064] is not a witness in this proceeding, but a defendant collaborator who, as such, is not obliged to tell the truth or to testify under oath. His contribution, moreover, is not gratuitous. It is articulated knowing that, if he satisfies the expectations for which the exercise of the criminal action against him was suspended (Art. 23 C.P.P.), he will obtain, as a benefit or prize, the extinction of that action. Although that circumstance alone would not permit denying credibility to his statement, the truth is that it must be weighed with extreme caution, to the point that it is indispensable to have additional evidentiary elements that ratify his words. In the same vein, Nombre54 points out: "For some, when a defendant informs on others, stating that they committed the act together with him or that they intend to incur in more crimes, the authorities are obligated to act with the utmost prudence and caution, without despising that information, but granting it only the value corresponding to a notitia criminis. If a defendant decides to reveal data 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. However, in many cases the revelations of the collaborator are easily accepted as authentic indicia of criminal responsibility, without regard for the personality of the informant, nor the little credibility he deserves, nor the preceding contradictory statements he may have made. Although at times the defendant collaborator 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 informed upon. 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." (Nombre54, op. cit., p. 595). This is a concern that is not exclusive to our environment. In other countries where the figure of the "repentant" has been incorporated in the context of the fight against organized crime, questions are also raised regarding the procedural evaluation that can be made of their statements and the need, for the purpose of deeming the account plausible, for its verification by other means of proof: "The simple informing on other individuals carried out by the self-declared guilty defendant, who offers his testimony incriminating other members of the criminal organization seeking better punitive treatment, poses serious evidentiary problems. The informing statement of a co-defendant can hardly be identified with that of a procedural witness, insofar as the defendant's own interrogation is constructed as a means of defense that allows him not to answer the questions posed and, even, to lie about the facts, while the procedural witness is obligated to tell the truth about the facts under the threat of being charged with a crime of false testimony. The introduction into legal systems of the 'hybrid figure of the defendant-witness' opens the doors to the danger of the 'degeneration of the evidentiary system.'" (Nombre15, op. cit., p. 29.). In this particular case, what is being evaluated is whether the testimony given by a defendant regarding the existence of a fact (the promise of economic retribution prior to the award) is believable, when he himself, throughout the proceeding, had expressly denied the point, stating emphatically that the sums received were offered to him after the award of the contract for the 400,000 cellular telephone lines. This chamber has no doubts about the unease experienced by the top executives of [Nombre01 091] during the years 1999 and 2000, since due to the use of captive technologies—TDMA—in Costa Rica, [Nombre01 091] was practically left out of the mobile telephone market. Nor does it have doubts about the strategy that, at least formally, the cited company designed to solve that problem ([Nombre01 124]'s course of action) and which contemplated approaches to key figures in different spheres of national life; about the links between [Nombre01 064] and [Nombre01 033], as well as between the former and other public officials with the company [Nombre 091] and its representatives. It was also demonstrated that [Nombre02 041], through two anonymous societies ([Nombre01 058] and [Nombre01 114]), transferred funds to a series of officials linked to the telecommunications field after [Nombre02 091] obtained the award of the 400,000 lines, officials among whom [Nombre 064] figured, who, it was also demonstrated, transferred part of those funds to [Nombre01 033] or to individuals or legal entities close to him. However, what cannot be established with a degree of certainty is that [Nombre01 041] and [Nombre01 078] extended a promise of economic retribution to [Nombre 064], at the [Nombre 094] restaurant, located in Alajuela, before the contract for the 400,000 lines was finalized and, even less so, that this promise was made in exchange for that public official acting in three areas, specifically, favoring the migration to GSM, promoting the use of public tenders (licitaciones públicas) in place of direct contracting, and voting favorably for [Nombre01 091] in the aforementioned contract. In the same way, except for what was stated by [Nombre 064], it cannot be considered proven with certainty that he relayed the cited promise to [Nombre01 033] the following day, under the terms explained by the charging authority. One must not lose sight of the fact that regarding the cited fact (the promise of a gift extended in December 2000), the only thing the a quo had was the statement of the defendant collaborator, a statement that clearly cannot be considered reliable because it has varied over time; because the changes occurred precisely when negotiating with the Public Prosecutor's Office, to the point that the abbreviated proceeding was conditioned on what [Nombre01 064] declared regarding the promise of a gift; because the changes do not concern tangential issues, but quite the opposite, a core fact that had not gone unnoticed by the defendant collaborator himself, as for months he had ruled out any offer prior to the mentioned contract, and finally, because [Nombre01 064] was a public official prone to receiving irregular economic retributions ("rewards" as he called them), originating from individuals and legal entities with whom he had ties due to his position, which also makes it impossible to rule out that things happened in other ways not contemplated in the accusation, e.g., under the terms he narrated for months (in which case the crime of acceptance of a gift for an act performed would be configured), or, in other ways also condemned in our legal system (e.g., that it was he who demanded the payment of the economic retribution, an alternative that also cannot be ruled out if one considers that [Nombre01 064] himself, during the hearing, acknowledged that before the events investigated here and at the insistence of [Nombre01 046] and [Nombre01 033], he "suggested" to [Nombre01 041] and to [Nombre02 078] "the convenience of paying" [Nombre01 046] what they had promised him in the past; cfr. f. 14,940 and 14,941 recto, volume XXXI). It is important to underline that [Nombre01 064] had criminal responsibility in the events investigated and, to that extent, his contributions as a collaborator are conditioned by his interest in satisfying the expectations of the charging authority.

His testimony (a term used improperly, as he did not declare under oath) cannot be considered sufficient evidence to deem proven the existence of a prior promise of a gift (an element that is decisive for speaking of a crime of aggravated corruption by improper bribery), given that, contrary to what the appealed judgment indicates, there are no other indications that confirm this point. It is important to note that for this chamber, by reason of the principle of freedom of evidence contemplated in Article 182 of the Criminal Procedure Code, there is no impediment to deeming proven a fact of interest for the resolution of the case based solely on the information provided by the cooperating defendant when it is sufficient on its own; however, this does not happen here, since, as has been explained, <span style="font-family:Arial; text-decoration:underline">there are weighty questions about the account provided and about its veracity, which, despite the efforts made by the requesting body, have not been able to be eliminated</span><span style="font-family:Arial">. There are a series of indications (set forth above) that can certainly be deemed proven without relying on the statement of [Name01 064], namely, that between 1999 and 2000, the representatives of [Name01 091] in the country considered that the company was subject to irregular treatment by ICE; that a strategy was developed to resolve this problem, which included approaching important people in various spheres; that although the need for ICE to migrate to GSM technology was foreseen and the institution had taken some steps in that direction, by the year 2000 it was not a consolidated decision; that several public officials related to the telecommunications field and with ties to [Name01 091] received, under similar circumstances and through the same channels ([Name01 058]. and [Name 114].), sums originating from [Name01 060] and, of course, that [Name01 091] secured the contract for the 400,000 lines. Now, from all these indications, it can reasonably be deduced that the public officials received money from the aforementioned company, and one could even suspect that those funds had some relationship with the awarding of the cited contract; however, what is not plausible is to assert with certainty that those funds, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">all transferred to the public officials after the award, were to fulfill a promise that was previously and separately made to each of them, in exchange for supporting the aforementioned company</span><span style="font-family:Arial">, especially considering that, as was demonstrated, [Name01 091]</span><span style="font-family:Arial; text-decoration:underline"> was favored with the contract not by chance or due to irregular acts by the defendants, but because it met all the requirements of the tender specifications, which did not happen with the competition</span><span style="font-family:Arial"> (proven fact No. 41). That is to say, </span><span style="font-family:Arial; text-decoration:underline">regarding the existence of a prior promise made to [Name01 064]</span><span style="font-family:Arial"> (and which the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> uses to establish that the other defendants who were public officials were also made a similar proposal), </span><span style="font-family:Arial; text-decoration:underline">the only evidence available is the word of that cooperating defendant, a person who for months expressly denied this point</span><span style="font-family:Arial">. It is important to note that during the trial, [Name01 064] was asked about this and other inconsistencies detected in his version. He, despite acknowledging having said that the offer </span><span style="font-family:Arial; text-decoration:underline">was after the award</span><span style="font-family:Arial">, denied having lied on September 30, 2004, arguing that at that time he had only tried to "cover or self-protect," and that later he was "clarifying" (f. 14,962 and 14,986 front, volume XXXI). He even stated that </span><span style="font-family:Arial; font-style:italic">"... it was obvious that that statement was not going to stand on its own; that is why the Prosecutor's Office told me that could not be the case, to justify it, and that is when I clarified things, I said that the offer was not after the award but before."</span><span style="font-family:Arial"> (F. 14,962 front of the same volume). And it is that despite the fact that [Name01 064] insistently denied having falsified the facts, it is indubitable, evident, that one of the two versions he provided does not correspond to reality. Either he lied by indicating that there was no prior offer, or he lied by affirming that there was one, making it impossible to establish, based on such a questionable and biased testimony, whether a promise of financial retribution was effectively made to him before the contract for the 400,000 lines was finalized, or whether such an assertion only responds to his interest in satisfying the Public Ministry to obtain the procedural benefit that was promised to him. For the trial court, the verification of [Name01 064]'s statement should be regarding the general aspects and not with respect to each of the facts narrated, since seeking this would render the opportunity criterion unproductive. Such a conclusion, in this particular case, is unacceptable, since the cooperating defendant's statement has been inconsistent regarding a fact that, while specific, is the most important of his entire version, namely, the existence of a promise of a gift prior to the abbreviated competitive procedure No. 1-2001. Nombre02 things, it is not possible to ignore the foregoing and deem the account plausible solely because, regarding some general facts, it coincides with other evidentiary elements (e.g., regarding the scenario facing [Name01 091] in a market that operated with captive technologies). It must be insisted that although Article 182 C.P.P. contemplates the possibility of proving any circumstance of interest to the case by any permitted means of proof, which would include the cooperating defendant's statement, according to the rules of sound criticism, it is not the same to base a judgment of certainty on an account that has been coherent and consistent as on one that is openly contradictory regarding the core fact charged (the promise of a gift), a contradiction which, moreover, arose upon reaching an agreement with the requesting body, first to apply an abbreviated procedure and then an opportunity criterion. In addition to this, in [Name01 064]'s statement, other inconsistencies are present that are impossible to ignore. For example, on September 30, 2004, [Name01 064] declared that, after the first shipment of money from [Name01 091], he delivered to [Name01 033] in the latter's office and </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">in cash</span><span style="font-family:Arial; font-style:italic">,</span><span style="font-family:Arial"> the sum of $370,000. However, it turned out that the amount [Name01 091] had given him on that occasion was only $225,000. Questioned on this, [Name01 064] indicated that </span><span style="font-family:Arial; font-style:italic">the confusion was involuntary "...due to the turmoil of events"</span><span style="font-family:Arial"> (f. 14,987 front) and that from that $225,000, what he transferred to [Name01 033] in his office was the sum of $130,000 in the following manner: </span><span style="font-family:Arial; font-style:italic">"...a certificate of $100,000 and 6 of $5,000..." </span><span style="font-family:Arial">(f. 14,987 front). The court, in its majority vote, accepted [Name01 064]'s excuses, after considering that the documentary evidence confirms that the cooperating defendant delivered the certificates described above to [Name01 033]. However, it is one thing to deem it proven that this transfer of certificates took place </span><span style="font-family:Arial; font-style:italic">and quite another to deem it proven the concept for which this transfer occurred, a point that can only be accredited through [Name01 064]'s statement</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and to that extent, it is essential that his account be credible</span><span style="font-family:Arial">. It is reiterated, regarding the prior promise of a gift and [Name01 033]'s involvement in accepting that promise, the only evidence that exists is [Name01 064]'s statement (who is not a witness, but a defendant whose legal situation depends on what is resolved in this process), hence any inconsistency observed in it must be assessed with extreme care. In this context, it is striking that this deponent incurred in "confusions" of a considerable magnitude, such as the one noted, for it is not every day that $370,000 dollars </span><span style="font-family:Arial; font-style:italic">in cash</span><span style="font-family:Arial"> from a criminal act are handed over to the [...]. Nombre11 along these lines, it is striking how [Name01 064], when questioned by the defense attorneys of the accused on this and other important topics, stated he did not remember. It is impossible to ignore that he says he does not remember, for example, whether in his statements before the requesting body he had </span><span style="font-family:Arial; font-style:italic">insisted</span><span style="font-family:Arial"> that the "reward" was after the award, or whether he had told [Name01 115] about his agreement with [Name01 033] or with [Name01 091] (f. 14,990 front), issues that are elementary and central to his testimony. In addition to this, note that</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> -according to [Name01 064]-</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> the promise of a gift was not only related to the migration to GSM technology, or the use of tenders instead of direct contracts, but to the awarding of the contract for the 400,000 lines (f. 14,963 front); however, the abbreviated tendering procedure for the lease with option to purchase of 400,000 GSM cellular lines arose because Nombre02 the Comptroller General of the Republic ordered it </span><span style="font-family:Arial; text-decoration:underline">well after, according to [Name01 064], the promise of financial retribution had been made</span><span style="font-family:Arial"> . Although, as the court indicates, by early December 2000 a certain proposal had already been developed, which is precisely the one discussed on the 5th (session No. 5249), the majority vote chooses to ignore that it spoke of 600,000 lines, 200,000 to expand the current ones -with TDMA technology- </span><span style="font-family:Arial; text-decoration:underline">and 400,000 in GSM technology to be obtained not by public tender but by direct purchase from 5 suppliers</span><span style="font-family:Arial"> ([Name01 091] , Siemens, Nortel, Ericsson, and Lucent), </span><span style="font-family:Arial; text-decoration:underline">it being the Comptroller's Office that after that date (and, therefore, after the promise of a gift was made, according to [Name01 064]) refused to authorize more direct purchases, opening the door to an abbreviated competitive process</span><span style="font-family:Arial">. To that extent, it is hard to believe that the promise of retribution that [Name01 064] placed at the beginning of December 2000 contemplated, as he said, a favorable vote in relation to a tendering procedure that at that time neither existed nor was foreseen (again, what had been designed in relation to the 400,000 GSM lines </span><span style="font-family:Arial; font-style:italic">was the direct purchase from several suppliers</span><span style="font-family:Arial">). In summary, although there are evidentiary elements that confirm some parts of the account given by [Name01 064] (e.g., that after the award, [Name01 091] gave him a significant sum of money), in its core (that is, having received on December 2, 2000, a promise of financial retribution that he passed on to [Name01 033] on the 3rd of that same month and year; cf. proven facts identified with numbers 85 to 92), his account not only finds no support in other evidence, but has also been contradictory, </span><span style="font-family:Arial; text-decoration:underline">to the point that it is impossible to rule out that things also occurred in another way, namely, that it was he -[Name01 064]- and other public officials who demanded the delivery of financial retributions from the heads of [Name01 091]; that these were given after the contract for the 400,000 lines was awarded without a prior promise existing (a thesis that, it is reiterated, he maintained for several months), or that the promise, if it existed, had a different content than the one [Name01 064] mentions</span><span style="font-family:Arial">. For the undersigned, [Name01 064]'s statement is simply implausible and, therefore, it is not sufficient to deem proven the cause for which the public officials received payments originating from [Name02 060]. It is important to emphasize that granting [Name01 064] an opportunity criterion in no way relates to the credibility that can be given to his testimony. Nombre02 things, it is not understood why the Public Ministry, knowing that this defendant, who was prone to receiving financial retributions, provided them with two different versions regarding a topic as central as the promise of financial retribution, chose to apply an opportunity criterion in relation to him, setting aside the referred circumstances that, ultimately, just as now happens, make it impossible to consider his words credible. More abundantly, this chamber has also taken on the task of listening to the audio and video recording of this cooperating defendant's statement during the trial, determining that the answers he gave to a significant number of questions asked by the defense attorneys of the other defendants were not spontaneous. Note that in numerous cases, before answering, [Name01 064] spoke with his defense attorney, Mr. Edwald Acuña Blanco, the professional who was sitting next to him. This situation was also subject to questioning not only because it was repeated, but because it took place regarding questions whose answers could not generate liability for [Name01 064] in relation to criminal acts other than those negotiated with the opportunity criterion. However, the court refused to correct the situation, arguing that it could not be assured that Mr. Acuña Blanco was recommending what [Name01 064] should answer (cf., e.g., the recording corresponding to September 16, 2010, file c0002100916102255.vgz, from 10:42:10 hours onwards). This is a conclusion that this tribunal does not share. [Name01 064], as a cooperating defendant, had the right to speak privately with his lawyer before making a statement, so that the latter could advise him. He also had the right to declare in his presence (Art. 82 subsection e), 93, and 95 of the Criminal Procedure Code) and, of course, that Mr. Acuña Blanco, if deemed necessary, recommend that he remain silent before questions whose answers could eventually entail some responsibility for him in relation to acts other than those negotiated with the requesting body. What constitutes an abuse of those rights is for any defendant (and more so [Name01 064], who would obtain a significant procedural advantage in exchange for his statement) to limit himself to communicating the answers from his advisor, it being naive to believe, as the majority vote does, that the conversations between defendant and lawyer after each question and before answering were not intended to guide his responses, dialogues that also had no reason to be in the case of questions related to the acts contemplated, at least formally, in the opportunity criterion, since it was regarding these that [Name01 064] committed to collaborate. </span><span style="font-family:Arial; text-decoration:underline">But even, hypothetically assuming that a defendant who has decided to declare can do so under such conditions,</span><span style="font-family:Arial"> what cannot be denied is that this conduct adds to the doubts that arise regarding the veracity of his version, since he was not even capable of answering many of the questions asked of him spontaneously. Finally, note that in addition to [Name01 064]'s statement, the only evidence that relates in some way to the issue of the prior promise is judgment No. 586-07, rendered on October 16, 2007, against [Name 068] and in which he is convicted of having accepted a promise of a gift from [Name 105] (evidence No. 747); however, it is a judgment issued years after [Name01 064] rectified his statement (and after, based on it, the requesting body adopted a certain theory of the case) within the framework of an abbreviated procedure, where the acceptance of charges by [Name01 068] </span><span style="font-family:Arial; font-style:italic">was of a formal nature</span><span style="font-family:Arial"> , thus it does not carry sufficient weight to make an account as questionable as the one already set forth seem plausible. And it is that if the requesting body's intention was to support [Name01 064]'s testimony with that of [Name01 068], or with that of any other defendant who had made a deal with the requesting body (e.g., [Name01 105]), it should have offered their statements to be received at the time of the trial and not attempt to assign to a judgment, which even regarding the point in question -the acceptance of the promise of a gift- is quite brief, a probative significance that it does not have, since it is not a document containing a statement made with all the formalities provided by the legal system to be incorporated by reading into the trial and examined in this process, as if it were a jurisdictional advance of evidence. In addition to this, one cannot lose sight that while [Name01 064] speaks of a promise of a gift made to him as of December 2000 with three specific objectives (migration to GSM, public tender instead of direct contract, and awarding of the 400,000 lines), in relation to [Name01 068], the judgment only alludes to a promise that was articulated </span><span style="font-family:Arial; font-style:italic">when the tendering process was already underway</span><span style="font-family:Arial">, hence they are not identical situations, where from the demonstration of one, the existence of the other can be derived. Regarding the statements of [Name01 041], acknowledging having made payments to public officials, and that of [Name01 001], accepting having received them, it is important to note that neither one nor the other indicated the concept for which the payments were made or received. That is to say, the doubt remains as to whether the amounts were to fulfill a promise of a gift made before the award (which leads us to doubt whether that promise of a gift described by [Name01 064] and the requesting body in relation to the involved public officials actually existed), or whether the payments responded to other equally plausible dynamics, which, in addition to not being contemplated in the accusation, would fall under different criminal types (e.g., bribery proper, acceptance of gifts for an act already performed, or extortion by a public official). It is important to add that the Public Ministry, on the occasion of the oral hearing held before this chamber, provided a document called </span><span style="font-family:Arial; font-style:italic">"Written Record of the Oral Presentation of the Public Ministry/Hearing Nombre64 091]"</span><span style="font-family:Arial"> , in which it states that the court, in its majority vote, analyzed a large amount of both documentary and testimonial evidence that makes it possible to verify the veracity of [Name01 064]'s statement on a series of points, which the requesting body set forth in 24 points, namely: </span><span style="font-family:Arial; font-style:italic">1)</span><span style="font-family:Arial"> [Name01 091] made use of numerous public opinion formation instruments to explain its interest in migrating to new trends. This was the beginning of a public discussion that joined the unmet demand. Moreover, [Name01 091] Nombre11 maintained that it was subject to discriminatory treatment by ICE and questioned the purchases made from other companies; </span><span style="font-family:Arial; font-style:italic">2)</span><span style="font-family:Arial"> by May 2000, the decision to migrate to GSM technology had not been made; </span><span style="font-family:Arial; font-style:italic">3)</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> there is evidence that [Name02 041] knew what was going to happen regarding the direct contracting of 160,000 lines to [Name02 091] , which confirms what was said by [Name01 064] in the sense that the former called him and asked him to attend the Board of Directors session where an agreement on the subject adopted in the previous session, which [Name01 064] did not attend, was being called into question; </span><span style="font-family:Arial; font-style:italic">4)</span><span style="font-family:Arial"> between [Name01 064] and [Name01 033] there was a close relationship; </span><span style="font-family:Arial; font-style:italic">5)</span><span style="font-family:Arial"> [Name01 064] and [Name 041] had contact; </span><span style="font-family:Arial; font-style:italic">6)</span><span style="font-family:Arial"> [Name01 041] acknowledged to [Name 116] that [Name01 058] was a kind of trust. The payer was [Name01 058]., not [Name01 091] directly, which ratifies what [Name 064] stated, regarding the query he made to [Name01 041] about that corporation; </span><span style="font-family:Arial; font-style:italic">7)</span><span style="font-family:Arial"> regarding the content of the remunerative promise, [Name01 064] mentioned that it was in exchange for migrating technology, promoting the tender, and voting affirmatively on [Name01 091]'s offer. For his part, [Name01 128] described how the company contacted [Name02 018] to talk about eliminating direct contracting, also noting that [Name01 018] asked him to speak with his superiors. It is also on record that [Name01 018] was sent an amount of money through the same channel and at the same time as [Name01 064], and there is documentary evidence that accounts for the displeasure of one of the managers of the corrupting plan, which is associated with the three aforementioned objectives; </span><span style="font-family:Arial; font-style:italic">8)</span><span style="font-family:Arial"> regarding the promise described by [Name01 064], there is evidence that money was transferred to this defendant through [Name01 058].; </span><span style="font-family:Arial; font-style:italic">9)</span><span style="font-family:Arial"> by the time [Name01 064] said the proposal was made to him to favor the migration, it had not yet happened; </span><span style="font-family:Arial; font-style:italic">10)</span><span style="font-family:Arial"> of the seduction process described by [Name01 064], there is abundant evidence that accounts for the meetings, invitations, and attentions from [Name01 091] towards various public officials; </span><span style="font-family:Arial; font-style:italic">11)</span><span style="font-family:Arial"> [Name01 064] placed the offer at the end of 2000, that year being decisive for [Name01 091], as can be extracted from the complaints it filed and other documentary evidence (e.g., paid advertisements); </span><span style="font-family:Arial; font-style:italic">12)</span><span style="font-family:Arial"> of the meeting between [Name01 064] and [Name01 033] there is documentary evidence that accounts for the way the money from [Name01 091] was distributed; </span><span style="font-family:Arial; font-style:italic">13)</span><span style="font-family:Arial"> according to [Name01 064], it was because of the promise made that the money was paid to him. Nombre02 this is confirmed by the fact that both he and other public officials were paid through similar means -through [Name01 058].-; </span><span style="font-family:Arial; font-style:italic">14)</span><span style="font-family:Arial"> [Name01 064] said that part of the money was for [Name01 033]. Regarding this, the evidence demonstrates that [Name01 064] received a sum similar to that of the other public officials but doubled, which reveals that through him, two officials were paid and not one. The transfer of money from [Name01 064] to [Name01 033] was demonstrated, and it was ruled out that it was a loan, as the latter claimed; </span><span style="font-family:Arial; font-style:italic">15) and 16) </span><span style="font-family:Arial">there is evidence confirming the relationship of [Name01 046] with [Name01 091] , the transfer of funds from that company to [Name02 046], and the transfer of funds from the latter to [Name01 064]. Nombre02 this confirms the cooperator's statement that [Name01 046] compensated him for having collected from [Name01 091] what they owed him; </span><span style="font-family:Arial; font-style:italic">17)</span><span style="font-family:Arial"> of the deliveries of money from [Name01 064] to [Name01 033] described by the former, there is documentary evidence; </span><span style="font-family:Arial; font-style:italic">18)</span><span style="font-family:Arial"> [Name01 064] initially said he had transferred funds to the account of [Name02 110], although he later clarified that this was not the case. This is plausible because [Name01 064] provided a document containing the number of the cited account, and because the link of that company with [Name01 033] was not even known to people close to [Name01 033]; </span><span style="font-family:Arial; font-style:italic">19)</span><span style="font-family:Arial"> it was demonstrated that [Name01 064] made a first payment to [Name01 033] with some BICSA certificates belonging to his mother, since his account was being questioned, just as he indicated; </span><span style="font-family:Arial; font-style:italic">20)</span><span style="font-family:Arial"> it was established that part of the second payment made by [Name01 064] to [Name01 033] was used for the benefit of the latter; </span><span style="font-family:Arial; font-style:italic">21), 22 and 23)</span><span style="font-family:Arial"> regarding other payments made by [Name01 064] to the then [...], Nombre65 documentary and testimonial evidence that accounts for the path followed by the money and how it ended up in the hands of people linked to [Name01 033], and moreover, part of those payments were accepted by [Name01 033]; </span><span style="font-family:Arial; font-style:italic">24)</span><span style="font-family:Arial"> [Name01 064] said that regarding the last payments made to him by [Name 091], he did not transfer money to [Name01 033] because it was difficult since the latter was in Washington and because he believed the division was unfair, which</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> -the prosecutors say-</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> the court used to explain why the transfer of funds was cut off (f. 176,960 to 176,965 back, volume XLIV). For this chamber, the indications mentioned above in no way allow for confirmation that the promise of a gift took place in the terms described by [Name01 064] during the trial, even less do they allow for categorically ruling out other equally plausible alternatives that were not charged. And it is that no one has questioned that the representatives of [Name01 091] were dissatisfied with the treatment they received from ICE (it must be remembered that captive technologies were used in the country and that, therefore, [Name01 091] could not compete); that they denounced the situation and designed a strategy to correct it, which involved approaching certain public figures, contact that indeed took place and that was proven, nor was it strange. In the same way, it was accredited that some public officials, unfortunately, had the habit of receiving and even soliciting favors from companies that had business with ICE, and that this happened even before the facts investigated here.

Nor has it been called into question that [Nombre01 064] transferred funds to [Nombre01 033], or to individuals or legal entities close to him (in fact, there is abundant documentary evidence demonstrating the foregoing); however, from this it cannot be derived with certainty that those funds were to fulfill a prior promise, accepted before the award, as stated by the Public Prosecutor's Office. This is not inferred either from the fact that several defendants were given, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">some time after the award</span><span style="font-family:Arial">, similar sums, under similarly analogous modal conditions, inasmuch as, with the same panorama, other scenarios are equally plausible, for example, that the monies were accepted by those public officials for acts performed and not for having assumed the commitment to perform future acts (which would constitute the crime of accepting gifts for a completed act and would rule out bribery); that it was those officials who, abusing their status or functions, compelled or induced the promise or payment of the patrimonial benefit (extortion), which, it is added, would not be surprising, since as we will see later, there were public officials who requested economic advantages from the supplying companies, among them [Nombre01 064] himself, who acknowledged having made "collection efforts (gestiones de cobro)" before [Nombre01 091] for him to pay [Nombre 046]. Nor can it be ruled out that, if a promise existed prior to abbreviated competitive proceeding 1-2001, its content was something else. The same can be said regarding the actions of [Nombre01 064] and other managers in relation to the matter, since certainly, no irregularity was demonstrated in the processing of the contract for the 400,000 lines (which, it is reiterated, began some time after the moment in which [Nombre01 064] located the promise of a gift, and which, moreover, arose because Nombre02 the Contraloría General de la Republica ordered it and not the ICE). It is insisted, the only deponent who gave an account of the promise of a gift was [Nombre02 064], and his testimony, for the reasons previously noted, besides being illicit, is unreliable. In summary, given that the statement of the cooperating defendant is illicit evidence and also implausible, it is appropriate to establish the consequences of its hypothetical exclusion, keeping in mind—of course—that, by reason of the extensive effect contemplated in article 443 of the Criminal Procedure Code (Código Procesal Penal), this exercise must be carried out for all the defendants in relation to whom such evidence has been considered, and not only for those who claimed its use by the trial court. For all the foregoing, the second ground of appeal of the judgment filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Nombre01 041], Nombre02 as section two, point D), and section three, point A), of the appeal of the judgment filed by the defendant [Nombre02 033], personally, is hereby granted.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">VI.- Consequences of the foregoing resolution</span><span style="font-family:Arial">. Although the defects described </span><span style="font-family:Arial; font-style:italic">supra</span><span style="font-family:Arial"> (the illegality of the opportunity criterion granted to [Nombre01 064] and, therefore, of the statement he gave at trial, Nombre02 as the violation of the rules of sound criticism in the assessment of that account) are of a formal or procedural nature, this court considers it unnecessary to order a remand, because having conducted an exhaustive investigation, no possibility is envisaged that in a potential trial other additional evidentiary elements beyond those already existing could be legitimately incorporated, and, to that extent, there is also no impediment for the undersigned to proceed to directly resolve what corresponds in accordance with the provisions of article 465 of the Criminal Procedure Code, determining through the analysis of the evidence remaining after hypothetically suppressing the referred statement, which facts that the trial court held as proven remain intact. This is a solution that, although it may be atypical in the case of procedural errors, can be adopted in consideration of the principle of prompt and complete justice, since it makes no sense to prolong the process when there are sufficient reasons to estimate that the state of things will not vary (in that sense, consult the resolutions of the Third Chamber numbers 827-F-96, of 12:35 hours on December 23, 1996, and 1173-1997 of 9:30 hours on October 31, 1997). Nombre02 matters, this study will now be carried out for each of the defendants. </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold; text-decoration:underline">1) [Nombre01 001]</span><span style="font-family:Arial">: The court held as proven, in fact No. 131, that [Nombre01 001] received from the corruptors a promise of a gift in exchange for performing 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 that contract effective, favoring [Nombre01 091]. Based on this, it considered him a responsible perpetrator of a crime of aggravated corruption by improper bribery. Regarding the crime of improper bribery, it is important to make some observations. The criminal type contemplates two actions, namely: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span><span style="font-family:Arial"> receiving a gift or any other undue advantage to perform, in the future, an act proper to one's functions and</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ii)</span><span style="font-family:Arial"> accepting the promise of a retribution of that nature for the same purpose. As Nombre66 points out, referring to Argentine legislation which, on this topic, presents some similarities with ours, </span><span style="font-family:Arial; text-decoration:underline">receives</span><span style="font-family:Arial; font-style:italic"> "he who enters into material possession of the object given to him"</span><span style="font-family:Arial"> and </span><span style="font-family:Arial; text-decoration:underline">accepts</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">"he who admits to receiving in the future what is promised to him", </span><span style="font-family:Arial">with the same purpose being pursued in both cases, specifically, that the public official performs </span><span style="font-family:Arial; text-decoration:underline">a future act</span><span style="font-family:Arial"> concerning his functions, hence it can be maintained that a gift given to reward a functional conduct already adopted by the official does not fall within the limits of bribery (thus, Nombre66. </span><span style="font-family:Arial; font-style:italic">Derecho Penal. Parte Especial. </span><span style="font-family:Arial">Buenos Aires, Editorial Astrea, Tomo II, 1° reimpression of the 6° edition, 1998, pp. 272 and 273). In the case of [Nombre01 001], between both typical conducts, the second has been held as configured, since as indicated </span><span style="font-family:Arial; font-style:italic">supra</span><span style="font-family:Arial">, he accepted a promise of economic retribution in exchange for executing—future act—the necessary actions so that [Nombre01 091] would be favored in the 400,000 GSM lines project. Specifying the foregoing is fundamental, since as has been held as proven, [Nombre01 001] </span><span style="font-family:Arial; font-style:italic">received</span><span style="font-family:Arial"> the funds coming from [Nombre01 060] </span><span style="font-family:Arial; font-style:italic">after the award of the contract.</span><span style="font-family:Arial"> If the award </span><span style="font-family:Arial; font-style:italic">had already occurred</span><span style="font-family:Arial">, it is not plausible to maintain that [Nombre01 001] </span><span style="font-family:Arial; font-style:italic">received</span><span style="font-family:Arial"> a gift in exchange for favoring [Nombre01 091]—future action—in that award and, therefore, the other scenario contemplated in the criminal type is completely excluded (namely, </span><span style="font-family:Arial; font-style:italic">receiving</span><span style="font-family:Arial"> the retribution in exchange for committing to perform a future act, proper to his functions). Having Nombre02 ruled out the hypothesis of the receipt of the gift, we focus on the one that was accused and held as proven, namely, that this defendant accepted </span><span style="font-family:Arial; font-style:italic">a promise</span><span style="font-family:Arial"> of a gift prior to that award to favor [Nombre01 091] therein. In this case, the conviction requires the verification of a series of elements of the criminal type that are core, namely, the promise of a gift, its content—the act proper to the functions in exchange for which the promise is made—and its acceptance. As explained in the judgment, from folios 15,894 to 15,980 front of volume XXXIII, Nombre02 as in the general sections thereof, referring to the general framework surrounding the contracting of the 400,000 GSM cellular lines (f. 15,512 front and following), what was set forth in relation to the alleged corruptors, their identification, the criminal planning, the signing of the consultancy contracts by [Nombre01 058]. and [Nombre01 114]. and the channeling of the monies for the payment of gifts and their distribution (f. 15,572 front and following), </span><span style="font-family:Arial; text-decoration:underline">to hold as proven the promise made to [Nombre01 001] (and accepted by him), the following was considered</span><span style="font-family:Arial">: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span><span style="font-family:Arial"> [Nombre01 001] began working at ICE at the end of the year 2000—which even the defense accepted in closing arguments, f. 15,895, volume XXXIII—, the employment relationship being formalized in January 2001. [Nombre01 001] was in charge of abbreviated process 1-2001, corresponding to the 400 thousand cellular lines. He was the project coordinator and the one who had a relationship with the supplying company; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ii)</span><span style="font-family:Arial"> [Nombre01 001] admitted before the media to having received monies from [Nombre01 091]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iii)</span><span style="font-family:Arial"> In the evidence, there are three notes written on paper with [Nombre01 058]'s letterhead. In the first, dated November 22, 2000, sent by [Nombre01 098] to [Nombre 041]—which the trial court understands to be [Nombre02 041] and [Nombre01 098]—, it is stated that steps are being taken so that [Nombre01 001], recently appointed by [Nombre01 095], will be the interlocutor for [Nombre01 091] in the negotiations on the new expansions, as he is a person with whom progress can be made since he is more political and, due to his recent appointment, is not contaminated by the influences affecting the traditional administration. In the second, dated November 23, 2000, and which is a continuation of the previous one, it is stated that [Nombre01 001] was successfully positioned to lead the negotiation from now on and that, consequently, a more flexible position can be expected from the ICE negotiating group. Finally, in the note of November 29, 2000, reference is made to the eventual refusal of the Contraloría to accept [Nombre01 095]'s proposal to contract with all the suppliers, which, according to the note, was [Nombre01 095]'s idea to avoid objections, but that in any case, also allowed keeping at bay the intention to expand the then-current system and accelerate the publication of the new tender for GSM and therefore keep [Nombre01 091]'s capacity to compete alive (all these notes, as this sentence appeal court verified, are visible in evidence No. 686, called </span><span style="font-family:Arial; font-style:italic">"Expediente principal de la causa Número 04-7810-0647-PE",</span><span style="font-family:Arial"> folios 295, 298 and 299 front); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iv)</span><span style="font-family:Arial; font-style:italic"> [Nombre01 041]</span><span style="font-family:Arial"> invited [Nombre01 001] to lunch on November 29, 2000; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">v)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial">in internal note PE-0102-P of February 22, 2002, sent by the executive presidency of ICE to the different strategic business units, they are informed that for the abbreviated contracting process for the 400 thousand lines, a commission coordinated by [Nombre02 001] was appointed, which would be in charge of the study and award of the project (study of offers, answering clarifications, evaluation in all aspects, award recommendation, consultation and resolution of possible appeals, etcetera, work that would conclude when the contract was countersigned), a commission that would depend on a high-level body composed of [Nombre01 095], [Nombre01 122] and [Nombre01 068]. These are communications that, despite being for internal ICE use, were sent to [Nombre 041], who kept abreast of what was happening at ICE with the 400,000 lines project, especially the functions assigned to [Nombre01 001], with which he was highly pleased. According to the court, the appointment of [Nombre01 001] was also part of the plan devised by [Nombre02 041] (f. 15,902 front); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">vi)</span><span style="font-family:Arial"> even though, indeed, [Nombre01 001] did not have the final word on the project, as was the case with the Nombre10 of the board of directors (e.g., [Nombre01 022], [Nombre01 064] and [Nombre01 068]; the second having accepted receiving gifts from [Nombre01 091] and the last having been convicted for acts of a similar nature), for this company it was essential to have the project coordinator, thus guaranteeing that Nombre02 acted in its favor. We speak of someone who had access to all information and whose opinion also carried great weight before officials such as [Nombre01 095], [Nombre01 122] and [Nombre01 068], who ultimately made the decision and brought it before the board of directors. It is important to remember, the ruling indicates, that [Nombre01 068], like [Nombre01 105], were convicted for committing crimes related to the offering and receipt of gifts from [Nombre01 091]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">vii)</span><span style="font-family:Arial"> for the court, even before his appointment as assistant in the executive presidency of ICE and later as coordinator of the 400 thousand lines project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] as a more political person, with whom progress could be made, hence he was the right person for the proposed plan. Therefore, once he assumed the position of coordinator, in accordance with his functions, [Nombre01 041] and [Nombre01 078] promised him the payment of a gift in exchange for performing the necessary actions within the scope of his duties to make the contract effective, favoring the interests of [Nombre01 091]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">viii)</span><span style="font-family:Arial"> the court weighed that the appointment of [Nombre02 001] took place in November 2000, when the concern about migrating to GSM technology was already within the board of directors, which, coupled with the conflicts that arose between [Nombre01 091] and ICE that were extensively explained in the judgment, made it necessary to have supporters of [Nombre01 091]'s cause, a purpose achieved by promising gifts to [Nombre01 022], [Nombre01 064], [Nombre01 068] and [Nombre02 001] himself. The </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> also revisited the topic of the so-called "action proposal" by [Nombre01 124], in the sense that approaches between the company and people from different spheres and factions—business, religious, and political—were advisable, a suggestion that [Nombre01 041] took as the representative of [Nombre01 091] in Costa Rica to carry out a plan that included approaching [Nombre01 001] and other defendants in this process; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ix)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial">finally, the existence of abundant evidence that allows demonstrating with certainty that [Nombre01 001] received and disposed of the gifts from [Nombre01 060] was weighed. In addition to what has already been set forth, when examining the situation of [Nombre 022], the trial court cited other circumstantial evidence that, as it understands, also compromises [Nombre01 001], namely: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">x)</span><span style="font-family:Arial"> an official communication from [Nombre 126], dated February 17, 2005, where it is recorded that [Nombre01 091] began relations with this company in January 2000 and that, according to its records, [Nombre01 105], [Nombre 064], [Nombre02 001] and [Nombre01 022] used its services, which allows concluding that three of the people favored with the trips were ICE officials, trips that occur after the countersigning of the contract for the 400,000 lines and therefore are not unrelated to this matter (f. 15,845 and 15,846 front, volume XXXII); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xi)</span><span style="font-family:Arial"> the promise of a gift is also proven through the statement of [Nombre01 064]. This, says the trial court, is plausible, since despite some differences with his previous accounts, on the relevant points it has remained the same. According to [Nombre01 064], [Nombre01 041] and [Nombre01 078] offered him a reward if he helped in three areas, namely, migration to GSM, use of bidding or public tender, and a favorable vote for [Nombre01 091]. The court says that if this was a constant practice, it is not strange that they approached other officials like [Nombre01 022] or [Nombre01 001] (f. 15,862 to 15,864 front, volume XXXII).</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">Exercise of hypothetical mental suppression of the statement of [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">and examination of the remaining circumstantial evidence in adherence to the rules of sound criticism</span><span style="font-family:Arial; font-weight:bold">:</span><span style="font-family:Arial"> As attorney Greysa Barrientos Núñez pointed out at the oral hearing held in this matter, there is no doubt that the representatives of [Nombre01 091] thought that the company was being excluded from the mobile telephony market and that they designed a plan to manage to position themselves in that sphere. As is correctly explained in the judgment, ICE took its first steps with TDMA technology, which is a captive technology, since the network expansions could only be made with equipment produced by the same companies that offered that technology and which, in the case of our country, were Lucent Tecnologías de Costa Rica S.A. and Ericsson, companies that were contracted by ICE under the modality of direct purchases, which prevented other companies from having access to that market, e.g., [Nombre01 091], a company that supplied ICE with equipment for fixed telephony, with [Nombre01 091] also offering GSM technology equipment (cfr. folios 15,540 and 15,541 front, volume XXXII). Based on the statement of several deponents (e.g., [Nombre01 095], [Nombre01 128], [Nombre01 132], among others), in the appealed ruling it was concluded that by the years 1999 and 2000, GSM technology was positioning itself in the world; that in 1999 there was a "tense" relationship between [Nombre01 091] and ICE and that during the year 2000, [Nombre01 091] fought to be another competitor in the mobile telephony market. This company, in addition to explaining to the ICE board of directors the advantages of migrating to GSM technology (apparently with little success, since although those advantages were admitted, direct contracting continued, some of which [Nombre01 091] also questioned, e.g., the direct contracting of 100,000 lines in the year 2000, f. 15,563, volume XXXII), designed an entire strategy that involved making the issue a matter of public domain and national interest, which is why it contacted people from different spheres, e.g., legislators, opinion makers, politicians, the media, and public control bodies (v.g., the Contraloría General de la República), among others, in order to denounce what they considered practices lacking in transparency, and that as a result of these actions, the majority vote indicates, [Nombre01 095], on October 6, 2000, publicly announced the migration to GSM technology, which in any case occurred a few months later (cfr. 15,540 to 15,572 front, volume XXXII). In the same way, there is no doubt that several public officials received sums of money from the aforementioned company, under similar modal and time circumstances. This, however, is not enough to hold as proven, as the appealed majority vote did, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">with a degree of certainty and not probability</span><span style="font-family:Arial">, that the payments made some time after the award </span><span style="font-family:Arial; text-decoration:underline">were the product of a promise of retribution previously made and accepted by [Nombre01 001], in exchange for him executing acts proper to his position to favor [Nombre01 091] with the contract for the 400,000 lines</span><span style="font-family:Arial">. According to the appealed judgment, the appointment of [Nombre01 001] was part of the corrupt plan. However, upon examining the matter, it is easily established that this conclusion does not derive from the evidence and that, therefore, it violates the rules of sound criticism. The designation of [Nombre01 001] was made by [Nombre01 095], a person who was never involved in the criminal plot. Furthermore, as [Nombre01 095] explained, what he intended with that designation was to have a person more willing to dialogue, to enable the recovery of peace after the events that occurred with the so-called electrical combo. Thus, [Nombre01 095] indicated: </span><span style="font-family:Arial; font-style:italic">"I directly appointed [Nombre01 001] myself; he arrived at the institution as a specialist in conflict resolution and helped greatly in the process of recovering labor peace following the events that occurred with the electrical combo. [Nombre01 001] arrived very close to my arrival at ICE; part of the problem the institution had at that time was satisfying the electrical and telecommunications service. I met [Nombre01 001] at the Universidad Nacional, in the School of Planning; he introduced himself, described his characteristics and skills, and I believed he could help us recover social peace in the institution. I did not ask for references for him; the interview was enough for me. It seemed to me that he had great capacity in the area of conflict resolution and listening to positions and providing solutions to conflicts, and Nombre02 he demonstrated it. I was looking to rescue labor peace in the institution and that is why [Nombre01 001] seemed good to me. I did not know if he had knowledge in telecommunications; he was an advisor to the Executive Presidency, coordinated meetings with the different union groups, perceived the concerns of those groups."</span><span style="font-family:Arial"> (Nombre67. 14,712 front, volume XXX). The court itself acknowledged that it was [Nombre01 095] who brought [Nombre01 001] to work at the institution from the last months of the year 2000, his designation as Executive Assistant in the Executive Presidency being formalized in January 2001 (f. 15,894 to 15,896, volume XXXIII). For all the foregoing, the majority vote errs in pointing out that even before his appointment and later as coordinator of the 400,000 lines project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] as a more political person and therefore, </span><span style="font-family:Arial; font-style:italic">suitable for the proposed plan</span><span style="font-family:Arial">, to the point of going so far as to maintain that the designation of this public official was part of the strategy followed by the corruptors. On the other hand, although—indeed—[Nombre01 001] was the person in charge of abbreviated process 1-2001 corresponding to the 400,000 cellular lines, it is important to note that this originated in the year 2001, not due to the interest of ICE or its leaders, but because Nombre02 was proposed by the Contraloría General de la República, and furthermore, that circumstance does not demonstrate that a promise of economic retribution was made to him at the end of 2000 or beginning of 2001, as the trial court asserted. This is also not inferred from the lunch that [Nombre01 041] had with [Nombre02 001] on November 29, 2000, or from the contacts that existed between the aforementioned public official and the employees of [Nombre01 091], since as the court itself accepted and was demonstrated with abundant evidence, which even documents the abuses by public officials who solicited royalties from supplying companies for a long time (e.g., case of [Nombre01 022]), that type of meeting was frequent (f. 16,112 front, volume XXXIII).</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> Nombre11 along these lines of reasoning, it is also clear that [Nombre01 001] accepted before a national television channel having received money from [Nombre01 091]; however, he never explained for what concept. In this way, the only thing that can be derived from the cited evidence is the acceptance of the money, which, it is not omitted to indicate, was also proven through abundant documentary evidence; however, it is not a piece of circumstantial evidence from which it can be derived, as a certain fact, that a promise of retribution prior to the award was made to [Nombre01 001]. The same can be pointed out regarding the notes examined in the judgment and mentioned above. From the first of them, dated November 22, 2000, what emerges is that the appointment of [Nombre01 001] was the responsibility of [Nombre01 095], with which, it is reiterated, it could not be affirmed that the cited designation was also part of the criminal plan. Moreover, in that note what is indicated is that the designation sought to accelerate things in ICE's expansion plans, both in fixed and cellular telephony, and that negotiations were being conducted so that [Nombre01 001] would be the interlocutor for [Nombre01 091] in the negotiations on new expansions, since because he is a "more political" person and due to his recent appointment, he would not be contaminated by "the influences that affect the traditional administration," hence it would be possible to advance further. As observed, this is a note that merely alludes to [Nombre01 001]'s characteristics as a negotiator, even favorable to the defendant's interests to the extent that he is considered free from influences, and from which, moreover, it does not even remotely emerge that there was a promise of economic retribution, or that he was at least a public official who was willing to provide collaboration to the company with the contract so many times mentioned, especially if one considers that the analyzed evidence mentions both fixed and cellular telephony. As if the foregoing were not enough, it must be taken into account that by November 22, 2000, the contract for the 400,000 lines had not been born into legal existence and that, therefore, [Nombre01 001] had not been designated as the person in charge of the execution of the project.

The same applies to the note dated November 23, 2000, which simply states that [Name01 001] will be the one leading the negotiation with [Name01 091] and mentions direct contracting with that company, aspects that do not contribute to demonstrating the prior promise in relation to the contract for the 400,000 lines, or to demonstrating the content of that promise. Finally, regarding the note of November 29, 2000, we are talking about a missive in which "[Name02 098]" (we understand, [Name01 098]) informs " [Name01 041]" ([Name01 041]) of the following: 1.- that the idea of including all suppliers has been successfully introduced and that "[Name01 095]" (this Chamber understands, [Name01 095]) believes he will be able to convince the Contraloría to approve a scheme that allows contracting with everyone, without objection from [Name17 Name02]; 2.- that although he ([Name01 098]) thinks this will not be possible, he acknowledges that this manages to keep the claim to expand the current system at bay, accelerate the publication of the new tender for GSM technology, and maintain the fighting capacity of [Name01 091]; 3.- that [Name01 001] commented to him that the Swedes (understood to be Ericsson) are very hurt by having lost control of things and that they are not willing to cede supremacy in the metropolitan area to [Name01 091]; 4.- that [Name01 091] must not cede anything that has been achieved, that Siemens and Nortel are entering the scheme thanks to the effort of [Name01 091], and that ICE knows that it will not be able to advance without this company's consent. This is a note that also does not allow one to glimpse the formulation of a promise to [Name01 001] in exchange for carrying out the necessary actions within the scope of his functions to make effective the contracting of the 400,000 lines favoring [Name01 091]. At most, it confirms that [Name01 001] had spoken with [Name01 098] by November 2000, a date on which – it is reiterated – neither had the contract for the 400,000 lines come into legal existence, nor had the accused been designated as responsible for its execution. The <span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> states in its majority vote that another indication against [Name01 001] is that the same promise was made to other public officials and that they accepted money from [Name01 091]. Regarding this, note that although – indeed – there is evidence that categorically establishes that [Name01 001], like other accused, received money originating from that company, there is no evidence to consider as accredited, at least not with a degree of certainty, a promise of a gift prior to the award, to the point that it is not plausible to rule out other hypotheses, for example, that without a prior promise existing, [Name01 001] accepted the economic retribution for a completed act, or that it was he who induced the representatives of [Name01 091] to give or promise him an economic retribution. </span><span style="font-family:Arial; text-decoration:underline">For the undersigned, only by considering the declaration of [Name01 064], who was explicit on the subject, could it be sustained that other public officials received promises of a gift and, to that extent, make the conclusion of the </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">a quo</span><span style="font-family:Arial; text-decoration:underline">, in the sense that [Name01 001] also received it, reasonable</span><span style="font-family:Arial">. Suppressing this declaration, what remains on this point is a judgment issued against [Name01 068]; however, from this, a judgment of certainty that [Name01 001] received the cited promise also cannot be derived, since the referenced decision was issued in the context of a summary procedure, where the accused – [Name01 068] – merely accepted the attributed facts and the agreed sanction (cf. evidence No. 747, dossier called Certified copy of judgment No. 586-07 File 06-000045-621-PE Crime of aggravated corruption, against [Name01 068]). Although in fact, that judgment considers it proven that [Name01 105], with the collaboration of [Name01 046], offered [Name01 068] a promise of a gift in exchange for voting in favor of the company [Name 091] in the tender for the 400,000 lines, a promise that [Name01 068] accepted, this does not allow it to be taken as proven that the same promise was made to [Name01 001], since the acceptance that [Name01 068] made of those facts is personal and, moreover, formal, being a requirement for the summary procedure to be applicable, whereby its evidentiary significance, at least for what concerns this process, is quite limited, arguments that are precisely the same that can be presented in relation to condemnatory judgment No. 260-09, issued against [Name02 105] for the crime of penalty of the corrupter, judgments that the appealed decision itself acknowledges have only been considered </span><span style="font-family:Arial; font-style:italic">“…in relation to those who submitted to such procedures and solely with the type of crime for which they were convicted, the sanction, parties, and eventual reparations or other merely referential data, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">without in any case evaluating the proven facts and other content</span><span style="font-family:Arial; font-style:italic">.”</span><span style="font-family:Arial"> (F. 15,767 and 15,768 front, volume XXXII). Furthermore, as stated in the cited resolution, [Name01 068] received an offer from [Name02 105] and from [Name 046] himself, whereas in the case of the other defendants, among whom is [Name01 001], the formulation of the promises is attributed to other characters, specifically, to [Name01 078] or to [Name01 041], so it also could not be affirmed that they are identical situations, for the purpose of assigning to that judgment a value it does not have. Regarding the so-called action plan prepared by [Name01 124], the first thing to indicate is that </span><span style="font-family:Arial; font-style:italic">this document does not contemplate the commission of criminal acts</span><span style="font-family:Arial">, but only the need for [Name01 091] to seek support in different spheres of national endeavor (business sector, Catholic Church, political parties, etc.). Furthermore, it also does not reasonably derive from it that [Name01 041] and [Name01 078] made a promise of a gift to [Name02 001]. As has been pointed out, there is no doubt that [Name01 001] illicitly increased his assets and that he carried out a series of transactions aimed at distancing the funds received both from their origin and from his person (which is an additional element to confirm that he knew the irregular nature of those funds); however, to declare him the responsible perpetrator of the crime of improper bribery in its modality of aggravated corruption, it is not enough to have the foregoing proven. It is not even enough to have proven that the money he received from [Name01 091] had some relationship with the issue of the 400,000 lines; rather, </span><span style="font-family:Arial; text-decoration:underline">it was essential to prove that [Name01 001], prior to the award, accepted a promise of economic retribution in exchange for carrying out the necessary actions within the scope of his functions to make the contract for the 400,000 lines effective, favoring [Name01 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; text-decoration:underline">, which [Name05] logically, also to reliably rule out other equally admissible hypotheses</span><span style="font-family:Arial">, for example, that without the cited promise existing, he accepted the sums that were transferred to him for acts performed in his capacity as a public official, or that it was he who induced [Name01 041] to give or promise him the cited economic retribution, which besides not having been ruled out, was also not charged. Continuing this analysis, the court indicates that evidence No. 75, pages 324 and 325, note PE-0102-P of February 22, 2002, is important because despite being for internal ICE use, it was sent to [Name01 041] and to the company [Name 091] in France, which corroborates that the former was aware of what was happening regarding the project for the 400,000 lines of GSM technology and the functions that had been assigned to [Name01 001] as project coordinator. It is even affirmed, based on that evidence, that the appointment of [Name01 001] to that position was part of the plan devised by [Name01 041]. The errors in this reasoning are obvious. As already indicated, the appointment of [Name01 001] was not under the purview of [Name01 078], [Name01 041], or [Name01 028]. Furthermore, it is unknown who sent that internal note to [Name01 041] and to [Name01 137]. Finally, but no less important, it should be highlighted that the evidence in question also adds nothing to the issue of the prior promise, since it </span><span style="font-family:Arial; text-decoration:underline">only mentions the [Name10] of the commission that would be in charge of the project for the 400,000 lines and those of the high-level commission on which that working group would depend directly, integrated – the high-level one – by [Name01 095], [Name01 122] and [Name01 068]</span><span style="font-family:Arial">. That is to say, as is effortlessly established and the same </span><span style="font-family:Arial; font-style:italic">a quo </span><span style="font-family:Arial">recognizes in the challenged judgment, [Name01 001] did not have the final word on the project, since there was another working group controlling the issue – the so-called high-level commission – and, of course, the institution's own board of directors, making it speculation on the part of the trial court to conclude that, despite this, the corruptors practically "designated" [Name01 001] as part of the criminal plan and that he was essential since, in addition to access to information, he had "weight" with officials such as [Name01 095], [Name01 122], and [Name01 068]. In the same way, what the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> points out in proven fact No. [Name68°] 132 is completely unfounded, namely, that [Name01 001] fulfilled the agreed-upon actions and </span><span style="font-family:Arial; font-style:italic">that once “he achieved” together with other ICE officials that the tender for the purchase of cellular telephony be opened</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and the award of the contract for the 400,000 GSM lines in favor of [Name01 091], he received the</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> promised gift</span><span style="font-family:Arial">. The foregoing because [Name01 001] was a middle manager who lacked the power to decide on the aforementioned issue; because the contract for the 400,000 lines (abbreviated competitive process 1-2001) emerged within the Contraloría General de la República and not within ICE, which until then had opted for direct contracting; and, finally, because [Name01 091] was favored with the contract legitimately, after meeting all the requirements and having been recommended in the respective studies, and not due to the particular actions of [Name01 001] (who, it is reiterated, did not have the power to open the tender or award the contract), or any other accused. In fact, the same judgment states that: </span><span style="font-family:Arial; font-style:italic">“In the minutes of the ICE Board of Directors session No. 5326 of August 28, 2001, from pages 4191 to 4215 (evidence No. 2), it is recorded that the date to receive offers in relation to Abbreviated Process 01-2001 for the acquisition of 400,000 wireless telephone solutions in the 1800 Mhz band with GSM technology was set for July 20, 2001, and that only two bidders submitted: Consorcio Ericsson II and a joint offer between [Name02 060] and Banco Centroamericano de Integración Económica (BCIE). </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">It is likewise evident from the cited minutes that the offer formulated by Consorcio Ericsson II</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">presented technical defects, which is why it was disqualified, while the offer jointly submitted by [Name01 060] and BICIE met all the tender specifications requirements, so it was unanimously agreed to award Abbreviated Competitive Procedure 01-2001 for the leasing with option to purchase of the equipment necessary for ICE to provide 400,000 comprehensive wireless telephone solutions with GSM technology in the 1800 Mhz band, plus the associated services and components, to the joint offer formulated by [Name01 060] and BCIE</span><span style="font-family:Arial; font-style:italic">. In relation to the referred extreme of the award, the witnesses [Name 095]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Executive President of ICE, [Name01 287]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Name01 195], President and Directors of ICE at that same time, coincidentally declared that </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">the awardee of the tender for the 400,000 lines was the company [Name 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">, which was decided unanimously, based on the result of a study analysis by various interdisciplinary sectors of the institution, all of which recommended the award to the cited company</span><span style="font-family:Arial; font-style:italic">. Upon showing witness [Name01 095] the minutes of ICE Board of Directors Session No. 5326, pages 3533 to 3557 of Volume IX (evidence No. 3), he said that he recognized that document and that the Board's decision was unanimous to grant that tender to [Name01 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. He finally declared that with the award of those 400,000 lines, the demand for mobile lines was largely resolved, that he does not know if they generated a surplus for ICE but that the negotiation was positive and justified the need to migrate to GSM technology in the need to provide new and better services to the user with new technologies, a point on which the former executives [Name01 287] and [Name01 195] also agreed. </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">The company Ericsson, dissatisfied with the award of the tender for the 400,000 lines and the disqualification it had been subject to, proceeded to file an appeal</span><span style="font-family:Arial; font-style:italic"> against the decision of the ICE Board of Directors, which it filed before the Contraloría General de la República on September 14, 2001, according to the received stamp of the appeal, which is recorded in box 5C of evidence No. 640, pages 2357 to 2297. </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">The cited appeal was declared without merit by the Contraloría General de la República</span><span style="font-family:Arial; font-style:italic"> on December 17, 1991 [sic], according to resolution R.C.N. 796-2001, visible on pages 3303 to 3219 of box 7C of documentary evidence No. 640. Evidence No. 640 contains a certified copy of the complete administrative file of Abbreviated Competitive Procedure No. 01-2001…” </span><span style="font-family:Arial">(The transcription is literal, f. 15,570 and 15,571 front, volume XXXII, the underlining is not from the original). In sum, the licit evidence analyzed comprehensively is insufficient to consider the crime of aggravated corruption in its modality of improper bribery as configured. Without the declaration of [Name01 064] as a guiding thread, </span><span style="font-family:Arial; font-style:italic">all that remains is a series of amphibological indications regarding the promise of economic retribution that, according to the accusation, [Name01 041] made</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">to [Name01 001] in connection with the project for the 400,000 lines</span><span style="font-family:Arial">. This conclusion does not change if one considers, as already explained, the condemnatory judgments issued against [Name01 068] and [Name01 105], since in these, the only thing observed is a personal and formal acceptance of charges, which is in no way sufficient to anchor the cited judgment of certainty. Even if from the position [Name01 001] held in ICE we can extract </span><span style="font-family:Arial; font-style:italic">with a high degree of probability</span><span style="font-family:Arial"> that the economic retribution he received had some relationship with the issue of the 400,000 lines, without the testimony of the collaborating accused, one cannot assure </span><span style="font-family:Arial; font-style:italic">with certainty</span><span style="font-family:Arial"> that there was a prior promise and, even less so, that the delivery of the gift was conditioned on the effective award of the offer that [Name02 091] would present to ICE, as the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> asserts in proven fact number 131 (f. 15,455 front). Without that declaration, one must insist, other factual hypotheses that were not the object of accusation also cannot be ruled out, e.g., that the economic retribution admitted by [Name01 001] was granted without a prior promise, for an act performed in his condition as a public official (just as [Name01 064] had originally stated), or even that it was [Name01 001] who forced or induced the representatives of [Name01 091] to give or promise him a certain patrimonial benefit, or that, a prior promise existing, it had a different content. [Name11] along these lines of thought, it is important to note that, although [Name01 041] admitted before [Name01 116] to having paid public officials, among them [Name01 001], he never admitted to having formulated a prior promise in exchange for [Name01 091] obtaining the contract for the 400,000 lines. On the contrary, what [Name01 116] describes is that, according to a draft declaration sent by [Name01 041], he indicated that it was [Name01 064] and other public officials who requested the rewards from him for having helped in opening public tenders instead of direct contracting (f. 15,157 front, volume XXXI). While it is true that, according to the same witness, in the meeting held, [Name01 041] did not refer to this circumstance (cf. same page), what is indicated in the mentioned draft (which is introduced into the debate through the testimony of [Name01 116]) adds to the doubts that the undersigned have as to whether the promise of a gift prior to the award actually took place. Regarding the official letter from [Name02 126], which indicates that that agency billed on behalf of [Name01 091], on April 24, 2002, and in the name of [Name 001], the amount corresponding to “Visa to Cuba and cancellation of reservation” (cf. f. 1771, volume V, which we have examined), note that, contrary to what the court indicates, it does not show that the promise of a gift existed. As with the money that [Name01 001] received, the economic advantage provided through [Name69] was admitted after the award of the 400,000 lines and, although it can be presumed that it is related to that issue, it cannot be ruled out that it was received as retribution for an act performed without a prior promise, or that it was requested by the same public official. Finally, it is important to add that although when examining the particular case of [Name02 001], the trial court did not make a lengthy mention of the statement of [Name01 064], from the comprehensive reading of the ruling and what was said regarding [Name01 022], it is extracted that </span><span style="font-family:Arial; text-decoration:underline">that declaration played a core role in both cases</span><span style="font-family:Arial">, to the extreme that even though [Name01 064] stated he did not know if other public officials had received similar promises, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> used that evidence to conclude that [Name02] it happened, a conclusion that this Chamber cannot endorse in this procedural phase, since as has been indicated, the account of the collaborating accused, besides being illegal, is implausible. </span><span style="font-family:Arial; text-decoration:underline">[Name02] the things and having ruled out, as it is impossible to prove, that a promise of a gift was made to [Name01 001], what must be analyzed is whether it is possible to consider another crime as configured, specifically, that of illicit enrichment</span><span style="font-family:Arial">. First, what must be pointed out is that it is a residual crime compared to other more complex ones, hence there is no impediment that, if these cannot be proven (e.g., improper or proper bribery, the acceptance of gifts for a completed act, extortion [concusión], etcetera), the basic figure be applied, [Name11] and when its elements have been contemplated in the accusation formulated by the requesting body and have been considered proven in the judgment. The answer to that question is negative. The criminal type of illicit enrichment provided for in numeral 346 subsection 3) of the Penal Code in force at the date of the facts, stated: </span><span style="font-family:Arial; font-style:italic">“The public official who, without incurring a more severely penalized crime, shall be punished with imprisonment from six months to two years: (…) 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position; (…)”. </span><span style="font-family:Arial">As extracted from the above, the action described in subsection 3) contains two alternative conducts, namely, the </span><span style="font-family:Arial; font-style:italic">acceptance</span><span style="font-family:Arial"> of an </span><span style="font-family:Arial; font-style:italic">offered</span><span style="font-family:Arial"> gift and the </span><span style="font-family:Arial; font-style:italic">acceptance</span><span style="font-family:Arial"> of a </span><span style="font-family:Arial; font-style:italic">presented</span><span style="font-family:Arial"> gift. In the first scenario, </span><span style="font-family:Arial; text-decoration:underline">the admission, which refers to the material receipt of the economic advantage,</span><span style="font-family:Arial"> occurs, as does the presentation, while the active subject remains in the exercise of the position. In the second, the admission or acceptance refers to the offer, where those actions – the offer of the gift and its acceptance – are what must occur during the exercise of the position. Since the crime is consummated with the admission of the offer, the material receipt of the gift, if it occurs, will constitute a subsequent unpunishable act, thus being unimportant whether it takes place while the public official exercises the position that motivated the economic retribution, or if, by then, he had left it. Having clarified the above, note that from the relation of proven facts that subsists </span><span style="font-family:Arial; text-decoration:underline">after hypothetically suppressing the offer of an economic retribution prior to the award of the contract for the 400,000 lines</span><span style="font-family:Arial">, the only thing that remains is that [Name01 001] </span><span style="font-family:Arial; font-style:italic">admitted</span><span style="font-family:Arial"> the gifts that were </span><span style="font-family:Arial; font-style:italic">delivered to him in consideration of his office</span><span style="font-family:Arial">. We are talking about a behavior that, at most, accords with the first scenario of the illicit enrichment described above, understood as the </span><span style="font-family:Arial; font-style:italic">admission</span><span style="font-family:Arial"> of the </span><span style="font-family:Arial; font-style:italic">presented</span><span style="font-family:Arial"> gift. However, neither in the accusation formulated by the requesting body, nor in the judgment, was it clarified whether that admission took place </span><span style="font-family:Arial; font-style:italic">while the accused occupied the position</span><span style="font-family:Arial">, an element that also forms part of the typical description and that in this particular case is of utmost importance, since he would have admitted some economic retributions when he had left public service (namely, the one received on May 7, 2004, for twenty-four thousand dollars – proven fact No. 167 – and the one received on July 29, 2004, for twenty-five thousand dollars – proven fact No. 170 –). It is important to add that although, when examining the situation of this accused, the trial court indicated that he left the position on March 10, 2004 (f. 15,895 front, volume XXXIII), since this is not a point contained in the accusation formulated by the Public Ministry, it could not be incorporated into the proven facts without violating the principle of correlation between accusation and judgment. But even if it is hypothetically assumed that the cited information was indeed available, specifying which amounts he received while he was executive assistant to the executive presidency of ICE and which he did not (and the hypothetical nature of the situation is emphasized), </span><span style="font-family:Arial; font-style:italic">the criminal action, in the case of the crime of illicit enrichment, would be time-barred.</span><span style="font-family:Arial"> The crime in question is sanctioned with a prison sentence of 6 months to 2 years, meaning its statute of limitations period, according to Article 31 subsection a) of the Criminal Procedure Code, is 3 years and was reduced to 18 months with the first formal accusation (Article 33 subsection a) of the same regulatory body), a procedural act that occurred on October 8, 2004 (f. 316 to 324 front, volume I). That is, the 18-month period expired on April 8, 2006, and by then, </span><span style="font-family:Arial; font-style:italic">no procedural act had occurred that had, by legal provision, the virtue of interrupting or suspending its count</span><span style="font-family:Arial">. Furthermore, the resolution that declared this cause to be of complex processing became final on June 26, 2006, </span><span style="font-family:Arial; text-decoration:underline">a date by which the criminal action was already time-barred</span><span style="font-family:Arial">. It is important to add that although </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">the Sala Tercera</span><span style="font-family:Arial">, in resolution No. 1847-2014, indicated that in accordance with Article 376 of the Criminal Procedure Code, </span><span style="font-family:Arial; text-decoration:underline">the finality of the resolution declaring the matter of complex processing </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">modifies</span><span style="font-family:Arial; text-decoration:underline"> the reducing condition of the prescriptive periods</span><span style="font-family:Arial">, to the extent of eliminating the reduction by half of the limitation period that is in progress, it also added that </span><span style="font-family:Arial; font-style:italic">“… </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">the sole exception to that reasoning would have presented itself in the case where the fatal prescriptive period had expired before that issuance</span><span style="font-family:Arial; font-style:italic">, since in that case the extinction of the criminal action by statute of limitations would have occurred, as that circumstance becomes a consolidated legal situation, to which the effects of the aforementioned Article 376 could not have been applied …” </span><span style="font-family:Arial">(Cf. considerando IV.-, resolution No. 1847-2014, the underlining is not from the original).

This is precisely what occurs here, since we would have that as of the date on which the resolution declaring the proceeding to be complex became final (namely, June 23, 2006), the action to criminally prosecute the crime of illicit enrichment <span style="font-family:Arial; text-decoration:underline">would have already prescribed</span><span style="font-family:Arial"> and, to that extent, there was a consolidated legal situation not modifiable by the application of the aforementioned section 376. Finally, this conclusion does not vary one iota if Article 62 of Law No. 8422, Law against Corruption and Illicit Enrichment in Public Service, published in La Gaceta No. 212 of October 29, 2004, is considered. The cited article provides: </span><span style="font-family:Arial; font-style:italic">“</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Prescription of criminal liability</span><span style="font-family:Arial; font-style:italic">. The criminal action regarding crimes against the duties of public service and those provided for in this Law shall prescribe in the manner established by the applicable legislation; however, the following rules shall govern: </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">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.</span><span style="font-family:Arial; font-style:italic"> 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 in judicial or administrative proceedings.”</span><span style="font-family:Arial"> (Highlighting not in original). From this norm, especially from subsection a), it is extracted that in the case of crimes against the duties of public service and those provided for in Law No. 8422, upon the occurrence of any of the acts indicated by the Code of Criminal Procedure as interrupters of the computation of the statute of limitations period, the count begins to run anew completely (that is, without a reducing effect), which constitutes an exception to Article 33 of the aforementioned Code. </span><span style="font-family:Arial; text-decoration:underline">This is an article that is applicable </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">to procedural acts carried out after its entry into force</span><span style="font-family:Arial">, thus ruling out its retroactive application to prior acts. And indeed, said norm would be applied retroactively if, for example, it were held that Article 62 subsection a) [which – it is reiterated – entered into force on October 29, 2004] eliminated the reduction of the statute of limitations period by half that occurred with the interrupting act carried out days before, namely, on October 8, 2004, when [Nombre01 001] appeared to give his investigative statement. It is important to clarify that the cited position is endorsed by the Third Chamber itself in resolution No. 1847-2014 cited above, insofar as it concluded that, since giving retroactive effect to procedural norms is not in accordance with the Political Constitution, only with respect to the accused who were investigated after the entry into force of Law No. 8422 did Article 62 thereof apply to them, according to which the statute of limitations period, after an interrupting act, had to be computed in full and not reduced by half (f. 176,429 to 176,431, volume XLIII). This situation only occurs in the cases of [Nombre01 018] and [Nombre01 006], such that only with respect to them was one more reason added to those already given by that court, to maintain that the criminal action was not prescribed. In the same vein as already set forth, the Criminal Cassation Court of San José has ruled, for example, in judgment No. 132-2006, of 10:30 a.m. on February 23, 2006, which, in pertinent part, states: </span><span style="font-family:Arial; font-style:italic">“The jurisprudence of this Court (thus votes No. 391-1999, No. 372-2001, and No. 1058-2001), as well as that of the Constitutional Chamber (see votes No. 5821-1998 or No. 4397-1999) and the Third Chamber of the Court (cf. votes No. 891-1999, No. 368-2000, No. 383-2002, No. 1017-2002, No. 1019-2002, and No. 35-2003), has indicated that the rules on the statute of limitations, as norms of an instrumental nature that they are, are valid only towards the future and never towards the past. It is therefore not possible to apply procedural law retroactively, given that such a possibility is provided only for substantive norms and Nombre11 that are more beneficial to the accused. Under such consideration, the rules on the statute of limitations shall be effective from their entry into force for the facts or procedural acts that it provides for, but never for those already occurred, since their effects cannot be retroacted to them. Nombre02 things, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">although Article 62 of the ‘Law against Corruption and Illicit Enrichment in Public Service’ (Law No. 8422) provides that henceforth the reduction provided for in Article 33 of the Code of Criminal Procedure shall not apply once the statute of limitations period has been interrupted when any of the grounds that Nombre02 allow it supervenes, initiating again the entirety of the period of Article 31 of that same legal body, such norm may not be applied to the assumptions or cases in which, prior to its entry into force, which occurred on October 29, 2004, the statute of limitations period had already been reduced by half precisely as a consequence of some of the provided interrupting grounds, as established at that time by procedural regulations. Such norm is effective only as of its entry into force for cases in which one of the interrupting acts that the procedural regulations provide for supervenes and Nombre11 that the period had not already been reduced previously as was provided, since proceedings are governed by the procedural law 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 period could not be re-established based on a norm that was not yet in force at the time when, in accordance with the legislation that did govern, a ground with a reducing effect occurred</span><span style="font-family:Arial; font-style:italic">. This means that when the ‘</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">Illicit Enrichment Law</span><span style="font-family:Arial; font-style:italic">’ was enacted (October 29, 2004), in this proceeding the statute of limitations period had already been interrupted and reduced by half, in accordance with the regulations that Nombre02 governed it, that is, as provided in section 33 of the Procedural Code. This better safeguards the rights of the parties and the essential principle of legal certainty, since it rules out that a later procedural law could resolve differently what occurred in a prior proceeding or process. The latter occurs even regardless of the moment in which the extinguishment of the criminal action is declared (whether during the time the reform is in force or before it), because the resolution that Nombre02 establishes it has only a declaratory and not a constitutive nature of the already consummated statute of limitations. Thus, if in the case under analysis, and as provided by the law that was in force when it arose, the statute of limitations period was reduced by half once the corresponding interrupting acts occurred, the period that must be computed is one year and six months and not three years as alleged in the appeal…”</span><span style="font-family:Arial"> (Underlining not in original). Now, in addition to the lack of description of the typical elements of illicit enrichment, both in the accusation and in the proven facts, Nombre02 as well as the statute of limitations period for the criminal action having elapsed, in the case of the gifts that [Nombre01 001] materially received after March 10, 2004, one more reason can be added that would prevent considering the aforementioned crime as configured, namely, its atypicality. As was advanced </span><span style="font-family:Arial; font-style:italic">supra</span><span style="font-family:Arial">, [Nombre01 001] served as a public official at ICE from January 1, 2001, to March 10, 2004 (f. 15,895, volume XXXIII), a period during which he received most of the irregular funds. After leaving that position, on May 7, 2004, he received $24,000 and on July 29, 2004, he received $25,000 (proven facts numbers 167 and 170, folios 15,466 and 15,467 front, volume XXXII). As explained above, the criminal type of illicit enrichment, in the assumption that concerns here – </span><span style="font-family:Arial; font-style:italic">acceptance of gifts presented</span><span style="font-family:Arial"> – contemplates only the acceptance of gifts that were presented to the public official in consideration of his office </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">while he remains in the exercise of the position</span><span style="font-family:Arial">, which is not the case with the aforementioned amounts. Nombre02 things, the conduct of [Nombre01 001], at least in the two indicated cases, would also be atypical. For all the foregoing reasons, the appealed judgment is annulled insofar as it declared [Nombre01 001] the responsible perpetrator of a crime of aggravated corruption in its modality of improper bribery. In its place, for procedural economy and in application of the principle </span><span style="font-family:Arial; font-style:italic">in dubio pro reo</span><span style="font-family:Arial">, he is acquitted of all penalty and liability for the aforementioned crime. As unnecessary, a ruling on the appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted. Regarding the appeal that [Nombre01 001] filed personally, jointly with other accused, this chamber will refer to it later. </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold; text-decoration:underline">2) [Nombre01 022]</span><span style="font-family:Arial; font-weight:bold">.</span><span style="font-family:Arial"> As extracted from folios 15,837 to 15,893 front of volume XXXII and from folios 15,972 to 15,980 front of volume XXXIII (where a joint assessment is made of the situation of [Nombre01 001] and [Nombre01 022] ), as well as from the general sections of the judgment, also mentioned by this chamber when examining the case of [Nombre01 001], namely, those related to the general framework regarding the contracting of the 400,000 GSM cellular lines (f. 15,512 front et seq.) and with the alleged corrupters and the criminal scheme (f. 15,572 front et seq.), to determine the liability of [Nombre01 022] the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> considered a series of circumstances. Those set forth from folios 15,837 to 15,893 front of volume XXXII can be summarized as follows: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span><span style="font-family:Arial"> There is abundant documentary evidence that allows establishing that [Nombre01 022] was a member of the board of directors of ICE from June 1, 1994, to May 31, 2002; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ii)</span><span style="font-family:Arial"> as a member of the cited board, the accused had voice and vote in the decisions that were adopted and, in what concerns here, regarding the issue of the 400,000 cellular lines (the court cites here the minutes of some of the board of directors' sessions); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iii)</span><span style="font-family:Arial"> </span><span style="font-family:Arial">between [Nombre01 041], [Nombre01 078], and [Nombre01 022] there existed a relationship of trust and friendship, a relationship that continued after 2002 when his appointment to the board of directors ceased. There is abundant documentary evidence, all examined in depth in the judgment, that accounts for the courtesies that [Nombre01 041] and [Nombre01 078] bestowed on [Nombre 022]. For example, they made hotel reservations in Madrid and Paris for [Nombre 022] (year 1996); they paid for trips, among them one to Spain (1999), and arranged what was necessary for [Nombre01 139] to provide him with courtesies during a trip he made to that country (1996). The court analyzed one of the documents that [Nombre01 022] sent to [Nombre02 078], requesting him to make reservations in Madrid and Paris. In that missive, in addition to indicating that he would write later, [Nombre01 022] signs off with the words </span><span style="font-family:Arial; font-style:italic">“hug [Nombre01 290]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">”</span><span style="font-family:Arial">. This missive was answered by [Nombre01 078] with a copy to [Nombre01 041], confirming the reservations. The </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> also highlights that [Nombre01 105] intervened in some of these events, who accepted an abbreviated procedure; for example, in 1997, on the occasion of a trip by [Nombre01 022] to Spain, it is [Nombre01 105] who asked [Nombre 078], with a copy to [Nombre01 041], for help with [Nombre01 022]'s hotel expenses, help that was indeed provided; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iv)</span><span style="font-family:Arial"> the court weighed documentary evidence from which it is derived that [Nombre01 091] began relations with the travel agency Nombre69 in January 2000 and that, according to the accounting records of that company, [Nombre01 105], [Nombre01 064], [Nombre01 001], and [Nombre01 022] used its services, this last accused in May 2002. According to the court, this is not a coincidence. Three of those favored with the trips were ICE officials and another was related to the company [Nombre 114], in turn linked to [Nombre01 060]. Although these are trips that took place after the contract for the 400,000 lines was countersigned, says the appealed judgment, they are not unrelated to those events, nor are the money transfers that [Nombre01 022] received starting in March 2002 (date of the countersignature); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">v)</span><span style="font-family:Arial"> the offers and deliveries of gifts to the accused coincide, both temporally and in terms of the amounts received, Nombre02 as well as regarding the company that issued the investment certificates, the company that ordered the money transfers, and the person who managed the bank account; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">vi)</span><span style="font-family:Arial"> it makes no sense to think that the gifts were given to [Nombre01 022] and to [Nombre01 001] because [Nombre01 041] “liked them a lot.” They were given because they had been promised in exchange for them promoting the migration to GSM technology; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">vii)</span><span style="font-family:Arial"> report 011-SDI-206, evidence 630, file named Refrend 114363, is an email message sent on September 5, 2001, by [Nombre01 022] to [Nombre01 078]. It relates to a study that said accused requested from an ICE official for his personal use and, when he had it in his possession, he sent it to [Nombre01 078] for the purpose of informing him of the “negative atmosphere at the Comptroller's Office” regarding, among other things, the direct contracts 108212 and 108213 approved on December 5, 2000, by the ICE Board of Directors, aimed at expanding the [Nombre01 091] and Siemens brand exchanges existing in the country and which, as of the date of that report, had not been countersigned. This is information that, although it was sent to [Nombre01 078] on September 5, 2001, that is, after the abbreviated process for the 400,000 lines had been awarded to [Nombre01 091] (on August 28, 2001), was still of interest to him, since this award had not been countersigned by the Office of the Comptroller General of the Republic, making it urgent that he knew what the Comptroller's criteria and requirements were regarding direct contracting and the possibility that opened for [Nombre01 091] to expand the contract for the 400,000 lines by 50%; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">viii)</span><span style="font-family:Arial"> the relationship between [Nombre01 041] and [Nombre01 022] extended beyond May 31, 2002, when the latter ceased to be a director of ICE. This is demonstrated with documentary evidence that was examined in the judgment (f. 15,850 front); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ix)</span><span style="font-family:Arial"> from the testimonial evidence, this close relationship is also extracted, as there are several witnesses who attest to the presence of [Nombre01 022] in the offices of [Nombre02 091], to a link between [Nombre02 041] and [Nombre01 022], and to the sending of sealed envelopes – whose content could not be determined – by [Nombre01 041] to [Nombre 022], specifically to his home address and not to the ICE offices, as did occur with items sent to [Nombre01 095] (e.g., the testimonies of [Nombre01 142], [Nombre01 144], [Nombre01 148], and [Nombre01 150], examined from folios 15,851 to 15,855 front); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">x)</span><span style="font-family:Arial"> although there is no direct evidence of the promise of a gift (which is understandable in the case of an illegal act), </span><span style="font-family:Arial; text-decoration:underline">its existence can be demonstrated through various elements</span><span style="font-family:Arial">: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">1) </span><span style="font-family:Arial">The money received does not stem from legal and transparent negotiations and [Nombre01 022] is so aware of this situation that he used mechanisms to try to distance the received assets from his person, despite which, through exhaustive studies, it was possible to determine that the funds came from [Nombre01 060]. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">2)</span><span style="font-family:Arial"> [Nombre02 041], as a representative of [Nombre02 060], and [Nombre01 078], deemed it necessary to have the help of ICE officials and from other agencies to open a public tender in which the company could participate and be the awardee of the 400,000 mobile lines. To arrive at this conclusion, the court considered the very unfavorable background that said company had in contracting with ICE. Based on the testimony of [Nombre01 128] and on abundant documentary evidence specified in the judgment (f. 15,857 to 15,861 front), [Nombre01 091]'s disagreement with ICE's policies is explained, particularly those adopted to contract 83,000 lines in 1999 and 100,000 lines in 2000, which placed the company at a clear disadvantage compared to other competitors, e.g., Ericsson, a situation that was denounced by [Nombre 091] in different spheres, namely, ICE itself, the Office of the Comptroller General of the Republic, the Legislative Assembly, and the press itself (f. 15,857 to 15,861 front). This situation is what first highlights the need and urgency that [Nombre01 041] and [Nombre01 078] had, on the eve of a contract like the one for the 400,000 cellular lines, to have people within ICE who were sympathetic to them, a project of which they were aware, since, as the defense acknowledges, the issue of technology migration had been discussed for some time. Even since 1998, [Nombre01 091] offered to donate a GSM-PCS equipment for 2000 terminals. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">3)</span><span style="font-family:Arial"> An additional evidentiary element is the testimony of [Nombre02 064], to the effect that [Nombre01 041] and [Nombre01 078] offered him a reward in exchange for helping to materialize the migration to open technologies or GSM; to move towards a public tender or bidding process, and to vote in their favor. [Nombre01 064] was clear that both corrupters spoke to him of the courtesies or rewards for those who helped them. He also described the environment prior to the contracting of the 400,000 lines, the deficit in fixed-line technology and especially in mobile technology, pointing out that at that time, in fixed-line, the largest provider was [Nombre01 091], while in mobile, due to the use of captive technologies – TDMA – other companies could not compete. Even then, it was clear that the future was cellular technology and an interest in migrating to GSM was detected, since there was no captivity regarding the technology. He indicated that [Nombre01 091] used public opinion tools to explain the importance of migrating to other technologies and pointed out that said company Nombre11 maintained that it was being subject to discriminatory treatment. This assessment by [Nombre02 064] confirms that, before the contract for the 400,000 lines, [Nombre01 091], through [Nombre01 041], was dissatisfied with the policies followed regarding direct contracts in which it could not participate. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">4)</span><span style="font-family:Arial"> Another element that allows the promise of a gift to be considered proven is the so-called “proposed action route,” designed by [Nombre01 124] (f. 15,863 et seq.). According to the judgment, although [Nombre01 124] abstained at trial, the document in question describes actions to address [Nombre01 091]'s problems with ICE. In it, [Nombre01 124] (who – according to [Nombre01 132] – was a political strategist who knew the environment quite well), speaks of the need to gather support from the business sector, the Catholic Church, minority parties, and the political sector. Specifically, he mentions the need to secure the support of three deputies, a pre-candidate for [...], Nombre10 from the directorate of the Liberación Nacional party, and the private advisory services of a former president. Again, an element that reveals the urgency and need that [Nombre01 091], in the person of [Nombre01 041], had to exhaust all avenues so that its offer regarding GSM technology would be accepted by ICE. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">5) </span><span style="font-family:Arial">Another indication that attests to the promise is the abbreviated procedure to which [Nombre02 068] submitted, for acts of the same nature as those already known (evidence No. 747). </span><span style="font-family:Arial; font-weight:bold; font-style:italic">6)</span><span style="font-family:Arial"> Even though in the minutes of the board of directors' sessions in which [Nombre01 022] participated, he never openly manifested himself in favor of [Nombre01 091], this is not surprising, since at that time the discussion was favorable to that company (f. 15,866 front). On the other hand, the circumstances indicated by the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> from folios 15,972 to 15,980 front of volume XXXIII (and which largely reiterate those already mentioned), are the following: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xi)</span><span style="font-family:Arial"> The relationship between [Nombre01 091] and ICE before the contract for the 400,000 lines was tense. For example, in the direct contracting of 83,000 lines in 1999, the participation of [Nombre01 091] was not permitted, which is why this company denounced ICE before the Office of the Comptroller General of the Republic and conducted a public campaign to explain that complaint. The same can be argued regarding the 2000 project to expand by 100,000 lines through direct contracting. Problems again arose between both parties, and once more, [Nombre01 091] campaigned against what it considered a transparency problem at ICE. All these campaigns sought to position [Nombre02 091] with ICE and break the chain of direct contracts to specific providers; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xii)</span><span style="font-family:Arial"> the action route prepared by [Nombre01 124]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xiii)</span><span style="font-family:Arial"> the statement of [Nombre01 064] in the terms set forth above; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xiv)</span><span style="font-family:Arial"> the statement of [Nombre01 116], which, in pertinent part, spoke of the declarations made by [Nombre01 041] before her and other Nombre10 of the commission that [Nombre01 060] sent to the country to investigate the events being published in the press. According to the deponent, [Nombre01 041] admitted having paid [Nombre01 022], [Nombre01 001], [Nombre01 064], and [Nombre01 018], and added that those payments were his initiative; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xv)</span><span style="font-family:Arial; font-style:italic"> [Nombre01 001]</span><span style="font-family:Arial"> admitted having received money from [Nombre01 091]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xvi)</span><span style="font-family:Arial"> there are notes – also mentioned above – where it is discussed how [Nombre01 001] was a better interlocutor for [Nombre01 091]; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xvii)</span><span style="font-family:Arial"> [Nombre01 041] invited [Nombre01 001] to lunch; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xviii)</span><span style="font-family:Arial"> between [Nombre 022], [Nombre02 041], and [Nombre01 078] there was a relationship of friendship, trust, and collaboration, which continued after the former ceased to be a member of the ICE board of directors. This is attested to by a series of documents, namely: </span><span style="font-family:Arial; font-style:italic">1.-</span><span style="font-family:Arial"> missive dated May 22, 1996, where [Nombre01 041] requests [Nombre01 139] that, due to a trip by [Nombre01 022] to that nation, any courtesy be extended to him since he is a member of ICE and this institution is [Nombre01 091]'s main client in the country; </span><span style="font-family:Arial; font-style:italic">2.-</span><span style="font-family:Arial"> a fax, which can be placed between March 28 and 29, 1996, where [Nombre01 022] thanks [Nombre01 078] for an invitation and requests him to make hotel reservations in Madrid and Paris, with a copy of that fax being sent to [Nombre01 041]. </span><span style="font-family:Arial; font-style:italic">3.- </span><span style="font-family:Arial">There is also a fax sent on July 18, 1997, by [Nombre02 105] to [Nombre01 078] with a copy to [Nombre 041], stating that [Nombre01 022] is going to Spain and requesting that they help him with hotel expenses in Madrid; </span><span style="font-family:Arial; font-style:italic">4.- </span><span style="font-family:Arial">the documents showing that on October 8, 1999, a trip to Spain was paid for him; </span><span style="font-family:Arial; font-style:italic">5.-</span><span style="font-family:Arial"> evidence No. 630, namely, an email dated September 5, 2001, where [Nombre01 022] informs [Nombre01 078] of the negative atmosphere at the Office of the Comptroller General of the Republic regarding the direct contracts intended to expand the [Nombre01 091] and Siemens brand exchanges existing in the country and that, as of the date of the report, had not been countersigned. In the same vein, he informs him of the contract for the 160,000 lines awarded to [Nombre01 091] and regarding which, unofficially, it was heard that the Comptroller's Office would in no way countersign it because there were interests involved and that if it was desired to purchase additional cellular lines, it was viable to do so through a process of expanding the 400,000 lines by 50% (folios 15,973 to 15,978 front).This is precisely what occurs here, since we would have that as of the date on which the resolution declaring the proceeding to be complex became final (namely, June 23, 2006), the action to criminally prosecute the crime of illicit enrichment <span style=\"font-family:Arial; text-decoration:underline\">would have already prescribed</span><span style=\"font-family:Arial\"> and, to that extent, there was a consolidated legal situation not modifiable by the application of the aforementioned section 376. Finally, this conclusion does not vary one iota if Article 62 of Law No. 8422, Law against Corruption and Illicit Enrichment in Public Service, published in La Gaceta No. 212 of October 29, 2004, is considered. The cited article provides: </span><span style=\"font-family:Arial; font-style:italic\">“</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Prescription of criminal liability</span><span style=\"font-family:Arial; font-style:italic\">. The criminal action regarding crimes against the duties of public service and those provided for in this Law shall prescribe in the manner established by the applicable legislation; however, the following rules shall govern: </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">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.</span><span style=\"font-family:Arial; font-style:italic\"> 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 in judicial or administrative proceedings.”</span><span style=\"font-family:Arial\"> (Highlighting not in original). From this norm, especially from subsection a), it is extracted that in the case of crimes against the duties of public service and those provided for in Law No. 8422, upon the occurrence of any of the acts indicated by the Code of Criminal Procedure as interrupters of the computation of the statute of limitations period, the count begins to run anew completely (that is, without a reducing effect), which constitutes an exception to Article 33 of the aforementioned Code. </span><span style=\"font-family:Arial; text-decoration:underline\">This is an article that is applicable </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">to procedural acts carried out after its entry into force</span><span style=\"font-family:Arial\">, thus ruling out its retroactive application to prior acts. And indeed, said norm would be applied retroactively if, for example, it were held that Article 62 subsection a) [which – it is reiterated – entered into force on October 29, 2004] eliminated the reduction of the statute of limitations period by half that occurred with the interrupting act carried out days before, namely, on October 8, 2004, when [Nombre01 001] appeared to give his investigative statement. It is important to clarify that the cited position is endorsed by the Third Chamber itself in resolution No. 1847-2014 cited above, insofar as it concluded that, since giving retroactive effect to procedural norms is not in accordance with the Political Constitution, only with respect to the accused who were investigated after the entry into force of Law No. 8422 did Article 62 thereof apply to them, according to which the statute of limitations period, after an interrupting act, had to be computed in full and not reduced by half (f. 176,429 to 176,431, volume XLIII). This situation only occurs in the cases of [Nombre01 018] and [Nombre01 006], such that only with respect to them was one more reason added to those already given by that court, to maintain that the criminal action was not prescribed. In the same vein as already set forth, the Criminal Cassation Court of San José has ruled, for example, in judgment No. 132-2006, of 10:30 a.m. on February 23, 2006, which, in pertinent part, states: </span><span style=\"font-family:Arial; font-style:italic\">“The jurisprudence of this Court (thus votes No. 391-1999, No. 372-2001, and No. 1058-2001), as well as that of the Constitutional Chamber (see votes No. 5821-1998 or No. 4397-1999) and the Third Chamber of the Court (cf. votes No. 891-1999, No. 368-2000, No. 383-2002, No. 1017-2002, No. 1019-2002, and No. 35-2003), has indicated that the rules on the statute of limitations, as norms of an instrumental nature that they are, are valid only towards the future and never towards the past. It is therefore not possible to apply procedural law retroactively, given that such a possibility is provided only for substantive norms and Nombre11 that are more beneficial to the accused. Under such consideration, the rules on the statute of limitations shall be effective from their entry into force for the facts or procedural acts that it provides for, but never for those already occurred, since their effects cannot be retroacted to them. Nombre02 things, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">although Article 62 of the ‘Law against Corruption and Illicit Enrichment in Public Service’ (Law No. 8422) provides that henceforth the reduction provided for in Article 33 of the Code of Criminal Procedure shall not apply once the statute of limitations period has been interrupted when any of the grounds that Nombre02 allow it supervenes, initiating again the entirety of the period of Article 31 of that same legal body, such norm may not be applied to the assumptions or cases in which, prior to its entry into force, which occurred on October 29, 2004, the statute of limitations period had already been reduced by half precisely as a consequence of some of the provided interrupting grounds, as established at that time by procedural regulations. Such norm is effective only as of its entry into force for cases in which one of the interrupting acts that the procedural regulations provide for supervenes and Nombre11 that the period had not already been reduced previously as was provided, since proceedings are governed by the procedural law 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 period could not be re-established based on a norm that was not yet in force at the time when, in accordance with the legislation that did govern, a ground with a reducing effect occurred</span><span style=\"font-family:Arial; font-style:italic\">. This means that when the ‘</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Illicit Enrichment Law</span><span style=\"font-family:Arial; font-style:italic\">’ was enacted (October 29, 2004), in this proceeding the statute of limitations period had already been interrupted and reduced by half, in accordance with the regulations that Nombre02 governed it, that is, as provided in section 33 of the Procedural Code. This better safeguards the rights of the parties and the essential principle of legal certainty, since it rules out that a later procedural law could resolve differently what occurred in a prior proceeding or process. The latter occurs even regardless of the moment in which the extinguishment of the criminal action is declared (whether during the time the reform is in force or before it), because the resolution that Nombre02 establishes it has only a declaratory and not a constitutive nature of the already consummated statute of limitations. Thus, if in the case under analysis, and as provided by the law that was in force when it arose, the statute of limitations period was reduced by half once the corresponding interrupting acts occurred, the period that must be computed is one year and six months and not three years as alleged in the appeal…”</span><span style=\"font-family:Arial\"> (Underlining not in original). Now, in addition to the lack of description of the typical elements of illicit enrichment, both in the accusation and in the proven facts, Nombre02 as well as the statute of limitations period for the criminal action having elapsed, in the case of the gifts that [Nombre01 001] materially received after March 10, 2004, one more reason can be added that would prevent considering the aforementioned crime as configured, namely, its atypicality. As was advanced </span><span style=\"font-family:Arial; font-style:italic\">supra</span><span style=\"font-family:Arial\">, [Nombre01 001] served as a public official at ICE from January 1, 2001, to March 10, 2004 (f. 15,895, volume XXXIII), a period during which he received most of the irregular funds. After leaving that position, on May 7, 2004, he received $24,000 and on July 29, 2004, he received $25,000 (proven facts numbers 167 and 170, folios 15,466 and 15,467 front, volume XXXII). As explained above, the criminal type of illicit enrichment, in the assumption that concerns here – </span><span style=\"font-family:Arial; font-style:italic\">acceptance of gifts presented</span><span style=\"font-family:Arial\"> – contemplates only the acceptance of gifts that were presented to the public official in consideration of his office </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">while he remains in the exercise of the position</span><span style=\"font-family:Arial\">, which is not the case with the aforementioned amounts. Nombre02 things, the conduct of [Nombre01 001], at least in the two indicated cases, would also be atypical. For all the foregoing reasons, the appealed judgment is annulled insofar as it declared [Nombre01 001] the responsible perpetrator of a crime of aggravated corruption in its modality of improper bribery. In its place, for procedural economy and in application of the principle </span><span style=\"font-family:Arial; font-style:italic\">in dubio pro reo</span><span style=\"font-family:Arial\">, he is acquitted of all penalty and liability for the aforementioned crime. As unnecessary, a ruling on the appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted. Regarding the appeal that [Nombre01 001] filed personally, jointly with other accused, this chamber will refer to it later. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">2) [Nombre01 022]</span><span style=\"font-family:Arial; font-weight:bold\">.</span><span style=\"font-family:Arial\"> As extracted from folios 15,837 to 15,893 front of volume XXXII and from folios 15,972 to 15,980 front of volume XXXIII (where a joint assessment is made of the situation of [Nombre01 001] and [Nombre01 022] ), as well as from the general sections of the judgment, also mentioned by this chamber when examining the case of [Nombre01 001], namely, those related to the general framework regarding the contracting of the 400,000 GSM cellular lines (f. 15,512 front et seq.) and with the alleged corrupters and the criminal scheme (f. 15,572 front et seq.), to determine the liability of [Nombre01 022] the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> considered a series of circumstances. Those set forth from folios 15,837 to 15,893 front of volume XXXII can be summarized as follows: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">i)</span><span style=\"font-family:Arial\"> There is abundant documentary evidence that allows establishing that [Nombre01 022] was a member of the board of directors of ICE from June 1, 1994, to May 31, 2002; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> as a member of the cited board, the accused had voice and vote in the decisions that were adopted and, in what concerns here, regarding the issue of the 400,000 cellular lines (the court cites here the minutes of some of the board of directors' sessions); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial\">between [Nombre01 041], [Nombre01 078], and [Nombre01 022] there existed a relationship of trust and friendship, a relationship that continued after 2002 when his appointment to the board of directors ceased. There is abundant documentary evidence, all examined in depth in the judgment, that accounts for the courtesies that [Nombre01 041] and [Nombre01 078] bestowed on [Nombre 022]. For example, they made hotel reservations in Madrid and Paris for [Nombre 022] (year 1996); they paid for trips, among them one to Spain (1999), and arranged what was necessary for [Nombre01 139] to provide him with courtesies during a trip he made to that country (1996). The court analyzed one of the documents that [Nombre01 022] sent to [Nombre02 078], requesting him to make reservations in Madrid and Paris. In that missive, in addition to indicating that he would write later, [Nombre01 022] signs off with the words </span><span style=\"font-family:Arial; font-style:italic\">“hug [Nombre01 290]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">”</span><span style=\"font-family:Arial\">. This missive was answered by [Nombre01 078] with a copy to [Nombre01 041], confirming the reservations. The </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> also highlights that [Nombre01 105] intervened in some of these events, who accepted an abbreviated procedure; for example, in 1997, on the occasion of a trip by [Nombre01 022] to Spain, it is [Nombre01 105] who asked [Nombre 078], with a copy to [Nombre01 041], for help with [Nombre01 022]'s hotel expenses, help that was indeed provided; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iv)</span><span style=\"font-family:Arial\"> the court weighed documentary evidence from which it is derived that [Nombre01 091] began relations with the travel agency Nombre69 in January 2000 and that, according to the accounting records of that company, [Nombre01 105], [Nombre01 064], [Nombre01 001], and [Nombre01 022] used its services, this last accused in May 2002. According to the court, this is not a coincidence. Three of those favored with the trips were ICE officials and another was related to the company [Nombre 114], in turn linked to [Nombre01 060]. Although these are trips that took place after the contract for the 400,000 lines was countersigned, says the appealed judgment, they are not unrelated to those events, nor are the money transfers that [Nombre01 022] received starting in March 2002 (date of the countersignature); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">v)</span><span style=\"font-family:Arial\"> the offers and deliveries of gifts to the accused coincide, both temporally and in terms of the amounts received, Nombre02 as well as regarding the company that issued the investment certificates, the company that ordered the money transfers, and the person who managed the bank account; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">vi)</span><span style=\"font-family:Arial\"> it makes no sense to think that the gifts were given to [Nombre01 022] and to [Nombre01 001] because [Nombre01 041] “liked them a lot.” They were given because they had been promised in exchange for them promoting the migration to GSM technology; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">vii)</span><span style=\"font-family:Arial\"> report 011-SDI-206, evidence 630, file named Refrend 114363, is an email message sent on September 5, 2001, by [Nombre01 022] to [Nombre01 078]. It relates to a study that said accused requested from an ICE official for his personal use and, when he had it in his possession, he sent it to [Nombre01 078] for the purpose of informing him of the “negative atmosphere at the Comptroller's Office” regarding, among other things, the direct contracts 108212 and 108213 approved on December 5, 2000, by the ICE Board of Directors, aimed at expanding the [Nombre01 091] and Siemens brand exchanges existing in the country and which, as of the date of that report, had not been countersigned. This is information that, although it was sent to [Nombre01 078] on September 5, 2001, that is, after the abbreviated process for the 400,000 lines had been awarded to [Nombre01 091] (on August 28, 2001), was still of interest to him, since this award had not been countersigned by the Office of the Comptroller General of the Republic, making it urgent that he knew what the Comptroller's criteria and requirements were regarding direct contracting and the possibility that opened for [Nombre01 091] to expand the contract for the 400,000 lines by 50%; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">viii)</span><span style=\"font-family:Arial\"> the relationship between [Nombre01 041] and [Nombre01 022] extended beyond May 31, 2002, when the latter ceased to be a director of ICE. This is demonstrated with documentary evidence that was examined in the judgment (f. 15,850 front); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ix)</span><span style=\"font-family:Arial\"> from the testimonial evidence, this close relationship is also extracted, as there are several witnesses who attest to the presence of [Nombre01 022] in the offices of [Nombre02 091], to a link between [Nombre02 041] and [Nombre01 022], and to the sending of sealed envelopes – whose content could not be determined – by [Nombre01 041] to [Nombre 022], specifically to his home address and not to the ICE offices, as did occur with items sent to [Nombre01 095] (e.g., the testimonies of [Nombre01 142], [Nombre01 144], [Nombre01 148], and [Nombre01 150], examined from folios 15,851 to 15,855 front); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">x)</span><span style=\"font-family:Arial\"> although there is no direct evidence of the promise of a gift (which is understandable in the case of an illegal act), </span><span style=\"font-family:Arial; text-decoration:underline\">its existence can be demonstrated through various elements</span><span style=\"font-family:Arial\">: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">1) </span><span style=\"font-family:Arial\">The money received does not stem from legal and transparent negotiations and [Nombre01 022] is so aware of this situation that he used mechanisms to try to distance the received assets from his person, despite which, through exhaustive studies, it was possible to determine that the funds came from [Nombre01 060]. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">2)</span><span style=\"font-family:Arial\"> [Nombre02 041], as a representative of [Nombre02 060], and [Nombre01 078], deemed it necessary to have the help of ICE officials and from other agencies to open a public tender in which the company could participate and be the awardee of the 400,000 mobile lines. To arrive at this conclusion, the court considered the very unfavorable background that said company had in contracting with ICE. Based on the testimony of [Nombre01 128] and on abundant documentary evidence specified in the judgment (f. 15,857 to 15,861 front), [Nombre01 091]'s disagreement with ICE's policies is explained, particularly those adopted to contract 83,000 lines in 1999 and 100,000 lines in 2000, which placed the company at a clear disadvantage compared to other competitors, e.g., Ericsson, a situation that was denounced by [Nombre 091] in different spheres, namely, ICE itself, the Office of the Comptroller General of the Republic, the Legislative Assembly, and the press itself (f. 15,857 to 15,861 front). This situation is what first highlights the need and urgency that [Nombre01 041] and [Nombre01 078] had, on the eve of a contract like the one for the 400,000 cellular lines, to have people within ICE who were sympathetic to them, a project of which they were aware, since, as the defense acknowledges, the issue of technology migration had been discussed for some time. Even since 1998, [Nombre01 091] offered to donate a GSM-PCS equipment for 2000 terminals. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">3)</span><span style=\"font-family:Arial\"> An additional evidentiary element is the testimony of [Nombre02 064], to the effect that [Nombre01 041] and [Nombre01 078] offered him a reward in exchange for helping to materialize the migration to open technologies or GSM; to move towards a public tender or bidding process, and to vote in their favor. [Nombre01 064] was clear that both corrupters spoke to him of the courtesies or rewards for those who helped them. He also described the environment prior to the contracting of the 400,000 lines, the deficit in fixed-line technology and especially in mobile technology, pointing out that at that time, in fixed-line, the largest provider was [Nombre01 091], while in mobile, due to the use of captive technologies – TDMA – other companies could not compete. Even then, it was clear that the future was cellular technology and an interest in migrating to GSM was detected, since there was no captivity regarding the technology. He indicated that [Nombre01 091] used public opinion tools to explain the importance of migrating to other technologies and pointed out that said company Nombre11 maintained that it was being subject to discriminatory treatment. This assessment by [Nombre02 064] confirms that, before the contract for the 400,000 lines, [Nombre01 091], through [Nombre01 041], was dissatisfied with the policies followed regarding direct contracts in which it could not participate. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">4)</span><span style=\"font-family:Arial\"> Another element that allows the promise of a gift to be considered proven is the so-called “proposed action route,” designed by [Nombre01 124] (f. 15,863 et seq.). According to the judgment, although [Nombre01 124] abstained at trial, the document in question describes actions to address [Nombre01 091]'s problems with ICE. In it, [Nombre01 124] (who – according to [Nombre01 132] – was a political strategist who knew the environment quite well), speaks of the need to gather support from the business sector, the Catholic Church, minority parties, and the political sector. Specifically, he mentions the need to secure the support of three deputies, a pre-candidate for [...], Nombre10 from the directorate of the Liberación Nacional party, and the private advisory services of a former president. Again, an element that reveals the urgency and need that [Nombre01 091], in the person of [Nombre01 041], had to exhaust all avenues so that its offer regarding GSM technology would be accepted by ICE. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">5) </span><span style=\"font-family:Arial\">Another indication that attests to the promise is the abbreviated procedure to which [Nombre02 068] submitted, for acts of the same nature as those already known (evidence No. 747). </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">6)</span><span style=\"font-family:Arial\"> Even though in the minutes of the board of directors' sessions in which [Nombre01 022] participated, he never openly manifested himself in favor of [Nombre01 091], this is not surprising, since at that time the discussion was favorable to that company (f. 15,866 front). On the other hand, the circumstances indicated by the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> from folios 15,972 to 15,980 front of volume XXXIII (and which largely reiterate those already mentioned), are the following: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xi)</span><span style=\"font-family:Arial\"> The relationship between [Nombre01 091] and ICE before the contract for the 400,000 lines was tense. For example, in the direct contracting of 83,000 lines in 1999, the participation of [Nombre01 091] was not permitted, which is why this company denounced ICE before the Office of the Comptroller General of the Republic and conducted a public campaign to explain that complaint. The same can be argued regarding the 2000 project to expand by 100,000 lines through direct contracting. Problems again arose between both parties, and once more, [Nombre01 091] campaigned against what it considered a transparency problem at ICE. All these campaigns sought to position [Nombre02 091] with ICE and break the chain of direct contracts to specific providers; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xii)</span><span style=\"font-family:Arial\"> the action route prepared by [Nombre01 124]; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xiii)</span><span style=\"font-family:Arial\"> the statement of [Nombre01 064] in the terms set forth above; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xiv)</span><span style=\"font-family:Arial\"> the statement of [Nombre01 116], which, in pertinent part, spoke of the declarations made by [Nombre01 041] before her and other Nombre10 of the commission that [Nombre01 060] sent to the country to investigate the events being published in the press. According to the deponent, [Nombre01 041] admitted having paid [Nombre01 022], [Nombre01 001], [Nombre01 064], and [Nombre01 018], and added that those payments were his initiative; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xv)</span><span style=\"font-family:Arial; font-style:italic\"> [Nombre01 001]</span><span style=\"font-family:Arial\"> admitted having received money from [Nombre01 091]; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xvi)</span><span style=\"font-family:Arial\"> there are notes – also mentioned above – where it is discussed how [Nombre01 001] was a better interlocutor for [Nombre01 091]; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xvii)</span><span style=\"font-family:Arial\"> [Nombre01 041] invited [Nombre01 001] to lunch; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">xviii)</span><span style=\"font-family:Arial\"> between [Nombre 022], [Nombre02 041], and [Nombre01 078] there was a relationship of friendship, trust, and collaboration, which continued after the former ceased to be a member of the ICE board of directors. This is attested to by a series of documents, namely: </span><span style=\"font-family:Arial; font-style:italic\">1.-</span><span style=\"font-family:Arial\"> missive dated May 22, 1996, where [Nombre01 041] requests [Nombre01 139] that, due to a trip by [Nombre01 022] to that nation, any courtesy be extended to him since he is a member of ICE and this institution is [Nombre01 091]'s main client in the country; </span><span style=\"font-family:Arial; font-style:italic\">2.-</span><span style=\"font-family:Arial\"> a fax, which can be placed between March 28 and 29, 1996, where [Nombre01 022] thanks [Nombre01 078] for an invitation and requests him to make hotel reservations in Madrid and Paris, with a copy of that fax being sent to [Nombre01 041]. </span><span style=\"font-family:Arial; font-style:italic\">3.- </span><span style=\"font-family:Arial\">There is also a fax sent on July 18, 1997, by [Nombre02 105] to [Nombre01 078] with a copy to [Nombre 041], stating that [Nombre01 022] is going to Spain and requesting that they help him with hotel expenses in Madrid; </span><span style=\"font-family:Arial; font-style:italic\">4.- </span><span style=\"font-family:Arial\">the documents showing that on October 8, 1999, a trip to Spain was paid for him; </span><span style=\"font-family:Arial; font-style:italic\">5.-</span><span style=\"font-family:Arial\"> evidence No. 630, namely, an email dated September 5, 2001, where [Nombre01 022] informs [Nombre01 078] of the negative atmosphere at the Office of the Comptroller General of the Republic regarding the direct contracts intended to expand the [Nombre01 091] and Siemens brand exchanges existing in the country and that, as of the date of the report, had not been countersigned. In the same vein, he informs him of the contract for the 160,000 lines awarded to [Nombre01 091] and regarding which, unofficially, it was heard that the Comptroller's Office would in no way countersign it because there were interests involved and that if it was desired to purchase additional cellular lines, it was viable to do so through a process of expanding the 400,000 lines by 50% (folios 15,973 to 15,978 front).

Analysis of the aforementioned evidence after the hypothetical exclusion of the statement of [Name02 064]: The fundamental evidence to establish that [Name01 022] received a promise of a gift from the corruptors, just as happened with [Name01 001], was the account of [Name01 064]. While there is a series of pieces of evidence that allow this fact to be considered proven *with a degree of probability*, without the statement of the cooperating accused it is impossible to do so with absolute certainty. As explained in the previous case, there is no doubt that the heads of the company [Name01 091] were upset with ICE's mobile telephony policies, because due to the use of captive technologies, [Name01 091] could not compete in that market. Likewise, it was demonstrated that they had no qualms about denouncing the situation in various spheres, understanding that despite the need to migrate to open technologies, the institution insisted on contracts that perpetuated TDMA technology. It was also demonstrated that [Name01 091] turned to a professional -[Name01 124]- to develop a strategy to confront that problem; that [Name01 022] had a close relationship with [Name01 078] and [Name01 041] that originated years before the events investigated here; that also for years, [Name01 022] received various advantages of economic content from this company, some that were requested by him, and finally, that after the awarding of the contract for the 400,000 lines, he received, like other public officials, funds originating from [Name02 060]. However, *from all of this it cannot be inferred that a promise of a gift was conveyed to [Name01 022] in late 2000 and early 2001 so that, in exchange, he would carry out the necessary actions within his functions as a director of I.C.E. to promote the migration from TDMA technology to GSM technology, to promote purchases through bids and prevent them from being aborted, or to vote in favor of [Name01 091] in the contracting process for the 400,000 lines* (cf. proven fact No. 117). This chamber will now conduct a thorough examination of the evidence mentioned *supra*. Regarding the relationship of trust between [Name01 041], [Name01 078], and co-accused [Name01 022], there is abundant evidence that accounts for it. Thus, for example, evidence 59, called folder CRG 005 ICE, record 370760. In it, there is an un-foliated document, located before folio 345. It is a fax dated May 22, 1996, sent by [Name01 105] to [Name01 041] in which he speaks of a trip by [Name01 022] to Chile, asking that he be given special treatment. In that same piece of evidence No. 59, at folio 354, there is a fax sent by [Name01 022] to [Name01 078] between March 28 and 29, 1996, where he thanks him for an invitation and at the same time asks him to make reservations in Madrid and Paris for April 1, 2, 5, and 7. In this document, he says goodbye with the phrase *"an embrace [Name01 290]"*. Also at folio 352 of the mentioned evidence is the response given by [Name01 078] to this message, confirming the reservations. These are documents *from the year 1996*, which although they reveal familiarity (one that is extremely reprehensible, as we are talking about an ICE director who repeatedly receives favors from a company that supplies the institution), do not provide elements to assert that there was a promise of a gift *years later*. The same applies to evidence No. 65, from folder CRG.002-01/02 A ICE, which consists of a document dated July 18, 1997, addressed to [Name01 078] by [Name01 105] informing him of a trip that [Name01 022] would make to Spain, with the request that they "help him" with the hotel expenses in Madrid, a place he would arrive on Thursday the 24th in the morning and from which he would return to San José on Monday the 28th, a request that was indeed fulfilled according to the document at folio 144. The court also weighed evidence No. 80, folio 238, which accounts -as stated at folio 15,845 of volume XXXII- that on October 8, 1999, a trip to Spain was paid for [Name01 022]. As observed, we are talking about documents that demonstrate that [Name01 022] had, years before the events investigated here, a close relationship (very reprehensible, certainly) with the representatives of [Name01 091] that was clearly improper, but which in no way allows demonstrating that years later and on the occasion of the contract for the 400,000 lines, a remunerative promise with specific content and purpose was conveyed to [Name01 022]. Similarly, there is evidence from which it can be extracted that this close relationship continued after [Name01 022] ceased to be a director of ICE (cf. evidence No. 633, annex 3, folios 9 to 11), but from which a judgment of certainty does not emerge regarding the point so many times mentioned. Added to this, it is enough to review evidence No. 80, specifically documents numbers 238 and 259, to conclude that it cannot be derived from it that [Name01 091] paid for a trip to Madrid for [Name01 022], as the trial court asserted without any reason. What is established with that evidence is that he was invited to eat at a restaurant in that city called Botillería del Café de Oriente. The same must be pointed out regarding the official letter from [Name01 126], visible in volume V of the principal case file, folio 1,771 front. According to the court, the trips mentioned there, like the money received after the award, are part of the economic advantages promised before it occurred. Such an affirmation, the undersigned understand, lacks foundation. In that document, [Name69] indicates that two invoices from May 2002 appear in its accounting records that account for two trips made by [Name01 022] to Guatemala and Tegucigalpa paid for by [Name01 091]. While this is additional evidence that accounts for the dynamic (extremely reprehensible, it is insisted) that existed between some public officials of ICE and the institution's supplier companies, where the latter lavished the former with advantages of economic content, it cannot be extracted from it that on the occasion of the contract for the 400,000 lines, a promise of economic retribution that Mr. [Name01 022] admitted was formulated. As happened with the money received after the award, the reception of advantages of patrimonial content does not allow demonstrating that fact, and even less asserting, as the *a quo* does, that they are part of what was promised, especially considering that [Name01 022] was prone to soliciting and receiving gifts from that company years before the events under examination here occurred. On the other hand, regarding the already mentioned evidence No. 630, consisting of report 011-SDI-206, file Refrend 114363, which is an email sent by [Name01 022] to [Name01 078] on September 5, 2001, note that in it, the former warns the latter about the negative atmosphere in the General Comptroller's Office of the Republic regarding direct contracts aimed at expanding the [Name01 091] and Siemens brand central offices that existed in the country and that, as of the date of the report, had not been countersigned. He also tells him about the direct contract for 160,000 lines awarded to [Name01 091] and that, unofficially, it was heard that the Comptroller's Office would in no way countersign it, because there were interests at stake, and that if one wanted to buy additional cell lines, the purchase was viable through a 50% expansion process of the 400,000 lines. As can be seen, this is a communication that is subsequent to the award and from which, due to its content (which relates to direct contracts and not to the abbreviated bidding process for the 400,000 lines), it also cannot be extracted that months before, in anticipation of the award of the mentioned contract, the promise of the gift took place in the terms in which it was accused by the requesting body. The same court understands that [Name02 022]'s intention with the mentioned communication was for [Name01 078] to be aware of the Comptroller's criteria regarding direct contracting and the possibility that was opening for [Name01 091] to expand the contract for the 400,000 lines by 50%. Although this allows suspecting *with some degree of probability* that the economic retributions were associated with that contract, it does not allow asserting *with a degree of certainty* that before its award, [Name01 022] had received a promise of economic retribution. This is so much the case that based on all the evidence described above, *it is also possible to consider other possibilities*, namely, that before the mentioned contract and without needing a particular promise of economic retribution to be made to him, [Name01 022] was committed to [Name01 091]'s cause and acted in its favor (as was seen, there is evidence demonstrating that since 1996 this public official received advantages of economic content from the mentioned company) and therefore, the money received after the award was only a retribution for a completed act. Likewise, and considering that [Name01 022] had no qualms about requesting economic retributions, it is also plausible that it was he who induced the payment, or that if some prior promise existed, its content was different. Regarding the proposal of [Name01 124], it is worth reiterating what has already been stated. The approach suggested by this professional in no way implies the commission of criminal conduct and even less the formulation of promises of gifts to public officials. The same must be pointed out regarding the sealed envelopes delivered to [Name01 022] at his home. The court weighed the testimony of [Name02 144], who, as relevant, stated that as a messenger for [Name01 091], he delivered them on the orders of [Name01 041]. For the *a quo*, the fact that these documents were not delivered at ICE with a copy of receipt, as usually happened with other documentation, *demonstrates that their content was not debatable in the sessions of the board of directors and that it addressed the illicit purposes proposed with respect to the topic of the abbreviated procedure 1-2001* (f. 15,854 front, volume XXXII). This is a conclusion devoid of any foundation, since, regarding the content of such envelopes, there is no information whatsoever that allows even suspecting that they contained documentation related to the mentioned bid, money, or securities (e.g., investment certificates). Additionally, even assuming this hypothetically, as has been explained, from [Name01 022]'s reception of the gifts, it cannot be concluded that the promise prior to the contract for the 400,000 lines took place. Furthermore, note that the trial court, despite acknowledging that witness [Name01 148], the person in charge of preparing the envelopes, stated that their content was not related to the payment of gifts, concluded that such statements *"... do not exclude the possibility that the envelopes delivered to [Name01 144] by [Name01 041] were different from those mentioned by witness [Name01 148] because the characteristics of each type of envelope were different: some were yellow and the others were not"* (f. 16,115 front, volume XXXIII), an assessment that is also unfounded, since, at least from what was recorded by the *a quo* in the descriptive reasoning of the judgment, [Name01 144] did not establish categorical distinctions regarding the colors of the envelopes he had to deliver, pointing out only that they were "normal" manila envelopes (f. 14,774 and 14,775 front, volume XXX). Furthermore, witness [Name01 148] stated that the envelopes could be sent with or without a confidential seal, and that *some* of them went to ICE (f. 14,785, 14,786, and 14,787, volume XXX), from which it can be reasonably inferred that she also prepared envelopes for other destinations, and it was in relation to the totality or generality of those she prepared and sent that the deponent denied that their content was related to the payment of gifts. For all the foregoing reasons, this chamber understands that it is speculation on the part of the *a quo* to assert that the envelopes delivered to [Name01 022] at his home contained documents linked to the criminal act. Along these same lines, the court also weighed the testimonies that account for the presence of [Name01 022] at [Name01 091] (e.g., those of [Name01 148] and [Name01 150]). This is evidence that, although it demonstrates the close relationship that existed between this accused and the heads of [Name01 091], which originated years before the contracting of the 400,000 lines, it does not allow reaching the conclusion that the offer of the gift (in the terms and circumstances described by the Public Prosecutor's Office) took place. It is reiterated that this chamber does not question that [Name01 022] received funds from [Name01 060], nor that he was a public official prone to requesting and receiving advantages of economic content from that company; however, this does not allow holding, with the degree of certainty required by our Political Constitution, that on the occasion of the contract for the 400,000 lines a promise of a gift was conveyed to him in exchange for favoring the migration to GSM, the use of bids or public tenders, and voting favorably for [Name01 091]. Having said the foregoing, we shall proceed *to examine the three core aspects upon which the trial court based its conclusion that the promise of economic retribution was indeed conveyed, namely*: *i) the antecedents, not at all favorable for [Name01 091], before the contract for the 400,000 lines*. The judgment under review analyzed a series of direct contracts in the field of mobile telephony that took place from 1999 and in which [Name01 091] could not participate, as well as the company's response to that situation, which ranged from exhausting all instances within ICE to denouncing the matter before the General Comptroller's Office and the public. In particular, it examined a direct contract for 83,000 lines in 1999 and another for 100,000 lines in 2000, both opposed by [Name02 091] (f. 15857 to 15,861 volume XXXII), all to demonstrate that the mentioned company was dissatisfied with ICE's policies regarding the contracting procedure being used, since only the existing suppliers, among them Ericsson, had the option to participate. For the *a quo*, this constitutes a first element to understand the need that [Name01 041] and [Name01 078] had, on the eve of a contract like that for the 400,000 cell lines, to have people within ICE who were aligned with their interests, a project they were aware of because the move to GSM technology had been discussed for some time. By way of example, the court recalls that in 1998, [Name01 091] maintained ties with ICE and made an offer to donate a GSM-PCS system for 2000 terminals, an offer that was accepted (folio 15,861). It is for this reason that the representatives of [Name01 060] chose to promise and later deliver a gift to [Name01 022]. *ii) A second element of proof considered by the instance court regarding the promise was the statement of [Name01 064]*. According to the *a quo*, this "witness" not only spoke of the promise of a gift conveyed to him by [Name01 041] and [Name01 078] in exchange for helping to materialize the migration to GSM technology, for ensuring that the purchase of material or equipment was done through public tender or bid, and for voting in favor of [Name01 091]. He also said that the corruptors mentioned that they were generous with the people who helped them. That statement also confirmed the situation faced by [Name01 091] before the contract for the 400,000 lines, which was described *supra*. *iii) The action plan prepared by [Name01 124] is a third element to consider the promise of economic retribution as proven*. This refers to a plan aimed at confronting [Name01 091]'s problems with ICE, which involved approaches to the business sector, the Catholic Church, and the political sector. That document mentions the need to gather support from at least three deputies, a presidential candidate, two [Name10] from the National Liberation Party board, and a former president (evidence No. 686). According to the appealed judgment, *"This document, without a doubt, shows the urgency and need that [Name01 091] had, in the person of co-accused [Name01 041], to exhaust all social and above all political instances so that their offer regarding GSM technology would be the one accepted by ICE. Let us remember said company's disagreement with the ICE administrative policies on the subject of contracting."* (F. 15,864, volume XXXII). As can be extracted from the foregoing, after hypothetically suppressing the statement of the cooperating accused, we are left with only two pieces of evidence (namely, the action plan proposed by [Name01 124] and the discomfort experienced by the officials of the company [Name01 091] for being excluded from the mobile telephony market), which are clearly insufficient to confirm the judgment insofar as it considered the promise of economic retribution to [Name01 022] as proven. This conclusion does not change if these two pieces of evidence are analyzed in conjunction with those mentioned previously (e.g., the relationship of trust long existing between this accused and the representatives of [Name01 091]; the sending of envelopes whose content is unknown; and, of course, the receipt of funds after the award). This is because, although from this entire picture it is plausible to extract with *a high degree of probability* that there was a promise of economic retribution, or at least that the funds received had some link to the contract for the 400,000 lines, *this cannot be asserted with absolute certainty*, to the point that other possibilities can be admitted, which have been repeatedly mentioned and which, moreover, were not charged by the requesting body, at least not subsidiarily. As happened with [Name02 001], this chamber does not doubt that [Name01 022] increased his wealth irregularly thanks to gifts from the mentioned company, and that there was no legitimate reason that protected him to proceed in this manner; however, this does not allow the promise of economic retribution charged by the Public Prosecutor's Office to be considered proven, since the evidence remaining after the exclusion of the testimony of [Name01 064], although plural and independent, does not lead to the conclusion that the promise took place. And this is because, in the case of circumstantial evidence, the consequence fact or presumed fact (in this case, the promise and its acceptance by the accused) must be extracted from the evidence in an immediate, reasonable, natural way if you will, which is not the case here, because those elements do not converge on a single conclusion that simultaneously excludes other options that were not contemplated, for example, that the content of the promise was different; that it was an acceptance of gifts for a completed act, without a prior promise; or even that the public officials themselves induced the payment of the gifts, which in the case of [Name01 022] would not be strange either, since, as was demonstrated, he was prone to soliciting all kinds of advantages of economic content from the officials of [Name01 091]. Finally, it is important to add that from the judgment rendered against [Name 068] (evidence No. 747), a judgment of certainty cannot be derived regarding the fact that a promise of economic retribution related to the contract for the 400,000 lines was conveyed to [Name01 022], since the mentioned resolution was handed down in the context of an abbreviated procedure, where the acceptance of the facts by [Name01 068] had a personal and formal character, and thus, little evidentiary significance can be given to it with respect to this case. This is an argument that can also be applied to the conviction judgment handed down against [Name01 105], with identical results. Added to this, as indicated when reviewing the situation of [Name01 001], the offer received by [Name01 068] was conveyed by [Name01 105] and the same [Name 046], whereas in the case of [Name01 022], it was attributed to other people, namely, [Name01 078] and [Name01 041], so we cannot assert that the factual platforms are identical to the point of logically deriving from one what is claimed in relation to the other. Finally, as the appealed judgment rightly recognizes, from the analyzed board of directors' minutes, no particularly striking action by [Name01 022] in favor of [Name01 091] can be inferred, hence it is not evidence whose consideration modifies what has been affirmed by this sentencing appeals court. In summary, for the undersigned, without the testimony of [Name01 064], what can be established is that [Name01 022] received gifts from [Name01 091] before the events investigated here -which was not charged- and that he also accepted them after the award of the 400,000 lines. Nevertheless, it cannot be asserted, *at least not with certainty*, that those funds were intended to fulfill a promise that was conveyed to him months before and that he accepted, aimed at having him act for the benefit of [Name01 091] in very specific respects: migration of technology, promotion of bids or public tenders, and a favorable vote regarding the contract for the 400,000 lines. Finally, it must be reiterated that although [Name01 041] admitted before [Name01 116] to having paid public officials, he never stated that he had made *a promise in that sense* to [Name01 022]. At the risk of incurring unnecessary reiteration, note that -according to [Name01 116]- in a draft statement sent by [Name01 041], he indicated that it was [Name01 064] and other public officials who requested the rewards for having helped in the opening of public bids instead of direct contracts (f. 15,157 front, volume XXXI). Although the witness also stated that in the meeting they had with [Name01 041], he did not say the foregoing (cf. same folio), what was set forth in the mentioned draft allows increasing the existing doubts about whether, before the award, a promise of a gift with specific content and purpose would have been made, and whether it would have been accepted by [Name01 022]. In summary, after excluding the illicit evidence and examining the remaining evidence, this chamber concludes that it cannot be reasonably inferred from it that there was a prior promise of a gift, so the circumstances that would allow the crime of aggravated corruption in its modality of improper bribery to be considered established could not be considered proven. Thus, what must be assessed is if the facts that remain unchanged can be considered constitutive of another crime, which is ruled out beforehand. As has been indicated, in the charge formulated by the requesting body, other possibilities were not considered, namely, that the gifts were received without a prior promise, for a completed act; that they were required or solicited by the public officials; or that, having been previously promised, they had another content. After discarding the prior promise in relation to the contract for the 400,000 lines, the only thing that can be considered proven is that [Name01 022] *accepted* —understood as *received*— the economic advantages that were given to him, conduct that cannot even be subsumed under the criminal statute for illicit enrichment. As explained before, in the case of the *acceptance of presented gifts* in consideration of the public official's office, it is indispensable that the conduct takes place *while the active subject remains in the exercise of the position*. Now, as can be extracted from the proven facts (specifically numbers 115 and 118 to 126), [Name01 022] was a director of ICE until May 31, 2002, *while the gifts were presented to him from October 2002 to May 2004*. Therefore, the conduct of [Name01 022], in light of the crime of illicit enrichment, would be atypical. It is important to emphasize that in this case, the scenario of *acceptance of an offered gift*, which is also contemplated in the criminal statute for illicit enrichment, cannot be applied, since it has not been possible to consider it proven that while [Name01 022] *remained in his position and on the occasion of it*, a gift was *offered* to him which he accepted, which would have been enough to consider the crime as established and, consequently, would have made the time at which the economic advantage was materially received irrelevant. Furthermore, it is the case that the criminal action to prosecute the crime of illicit enrichment would be time-barred. This crime is sanctioned with a prison sentence of 6 months to 2 years.

Therefore, its statute of limitations is 3 years and was reduced to 18 months with the first formal charge (articles 31 a) and 33 subsection a) of the C.P.P.), a procedural act that occurred on October 1, 2004 (f. 146 to 161 front, volume I). That is, the 18-month period expired on April 1, 2006, and by that time, *no procedural act had occurred that, by legal provision, had the effect of interrupting or suspending its count*. Furthermore, as explained when examining the situation of [Nombre01 001], *a section to which the parties must refer to avoid unnecessary reiterations*, this conclusion is not modified if what is set forth in article 376 of the C.P.P. is considered, especially the interpretation that the Third Chamber made of this rule, since by the date the resolution declaring this case to be of complex processing became final (namely, June 26, 2006), the criminal action was already time-barred. Likewise, article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, is not applicable in the particular case of [Nombre01 022], since this provision came into effect on October 29, 2004, that is, after the accused gave his investigative statement and the interrupting and reducing effects on the computation of the statute of limitations simultaneously operated. Based on the foregoing, the appealed judgment is annulled insofar as it declared [Nombre01 022] to be the responsible perpetrator of an aggravated corruption crime in the modality of improper bribery (cohecho impropio). Likewise, for procedural economy and in application of the principle *in dubio pro reo*, he is acquitted of all penalty and responsibility for this crime. As it is unnecessary, a ruling on the cassation appeals filed by his public defender, Attorney Yamura Valenciano Jiménez, is omitted.

**3)** [Nombre01 006]: In relation to this accused, the court found it proven that he accepted a gift (dádiva) while remaining in the exercise of his position, specifically, that of deputy chief of the ICE switching department directorate; a gift that, furthermore, was delivered in three installments. By virtue of these facts, [Nombre01 006] was convicted of an illicit enrichment (enriquecimiento ilícito) crime. As the basis for this decision, from folios 16,256 to 16,282 front of the judgment, volume XXXIV, the *a quo* considered the following: **i)** [Nombre01 006] had a relationship with the company [Nombre01 091], since the specialized switching area was the one responsible for carrying out equipment installations and administering contracts. In addition, [Nombre01 006] had active participation in several procurements awarded to that company and recommended by him, namely, (i) No. 103830 for the acquisition of 38 remote subscriber units, awarded in session No. 5109 of September 7, 1999; (ii) procurement No. 104333 for the acquisition of 509 ISDN digital primary rate interfaces in exchanges, awarded on April 13, 2000, and in which [Nombre01 006] was co-administrator of the contract; (iii) procurement No. 105543 for intelligent network expansion, awarded in session No. 5210 of August 22, 2000. In this one, [Nombre01 006] was in charge of the acceptance tests; (iv) procurement No. 108213 for the expansion of [Nombre 091] 1000 - E10 exchanges, awarded in session No. 5294 of May 9, 2001. [Nombre01 006] was co-administrator of the contract; (v) procurement No. 112346, execution of the purchase option for the intelligent network, awarded in session No. 5375 of February 12, 2002; (vi) procurement No. 112765, expansion of [Nombre 091] exchanges, awarded in session No. 5404 of May 14, 2002. [Nombre01 006] was the administrator of this contract. The evidence for the foregoing is documentary in nature and is mentioned at folios 16,257 and 16,258 front of the judgment. **ii)** By reason of contract administration, [Nombre01 006] had a close relationship with the representatives of [Nombre01 091], a matter also attested to by witnesses such as [Nombre01 153] and [Nombre01 156]. **iii)** Based on those same testimonies and documentary evidence No. 344, it was established that [Nombre02 006], as head of the ICE switching department, had, among other functions, to determine needs regarding expansions or improvements in different areas of the country. As coordinator, he had under his command a team of technicians who determined equipment needs; based on these needs, a document was made and, according to the words of witness [Nombre01 156], "it became a requirement," with the accused [Nombre01 006] being responsible for signing the certification of the supplier's need. Subsequently, he took the award recommendation to the heart of the ICE board of directors so that this body could decide whether to call for bids. In addition to the aforementioned competencies, he was also in charge of installing the equipment, executing the contracts, and evaluating performance, for which reason he was a key official within the award procedure, not only internally at ICE but also for those companies seeking to participate (f. 16,276 front); **iv)** [Nombre01 006] had nothing to do with the abbreviated procedure 1-2001 referring to the contract for the 400,000 lines, but he did with fixed telephony procurements; **v)** there is documentary and expert evidence, also examined in the judgment, that allows demonstrating that [Nombre01 006] received monies coming from [Nombre01 060] and that they were transferred to him using the same mechanisms employed to deliver economic advantages to other public officials (namely, through the account held by [Nombre01 058].); **vi)** this accused received the sum of $110,336.20 dollars, a patrimonial increase that has no justification whatsoever, especially considering that his monthly salary was approximately 400,000 colones, according to the testimonial evidence presented. **Consequences of the hypothetical exclusion of the testimony of [Nombre02 064]**. As this chamber understands it, the statement of [Nombre01 064] was not decisive for establishing the responsibility of [Nombre01 006], to the point that if hypothetically suppressed, the ruling suffers no modification whatsoever. Therefore, the claims formulated by his defense attorneys against the trial judgment will be addressed further below.

**4) [Nombre01 018]**: The *a quo* convicted him for the crime of illicit enrichment, understanding that, in order not to violate the principle of correlation between accusation and judgment, it was not possible to find the promise of a gift (dádiva) proven and convict for the aggravated corruption crime in its modality of improper bribery, in the terms requested by the Public Prosecutor's Office. To determine the responsibility of [Nombre01 018] regarding the mentioned illicit enrichment, the court weighed a series of circumstances that can be schematized as follows: **i)** [Nombre01 018] was a deputy of the Legislative Assembly from May 1, 1998, to April 30, 2002. Later, from May 8, 2002, to April 21, 2004, he was executive president of the Costa Rican Social Security Fund (the documentary evidence cited at folio 15,998 front and the testimony of [Nombre01 158], also cited on that same folio, attest to the foregoing); **ii)** as a deputy, he was part of the special joint commission that was formed after the protests over the so-called ICE combo (combo del ICE). The aim was that no bill related to ICE would be processed without the opinion of that commission (thus, evidence No. 59, folio 93). This is of interest, the court says, because a document was seized at the management of [Nombre01 091] called "New Telecommunications Law (Combo ICE), impact on [Nombre01 091] and actions to follow," which reveals the importance for the company of any action that could modify or affect commercial expectations or contracts with the referred institution (f. 15,999 front); **iii)** [Nombre01 063] worked at ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Nombre01 091] and [Nombre01 018]. The representatives of [Nombre01 091] approached the latter through the mediation of [Nombre01 063], to present their concerns about the direct procurements carried out by ICE which, according to [Nombre01 091], left it out of the market. Report No. 428-DEF-443-05/05, evidence No. 630, PC06, "White Book" file, and the statement of [Nombre01 128] attest to this; **iv)** based on the testimonial evidence presented, it was ruled out that [Nombre01 018] had been a consultant for the company [Nombre01 091], as well as that he had any commercial or employment relationship with [Nombre01 058]. that could justify the reception of the monies delivered to him. Even more, [Nombre01 158] stated that this accused told her he had earned money with [Nombre01 091] easily, since he had not done anything and, according to witness [Nombre02 116], [Nombre 041] told her spontaneously that he had paid bribes to public officials, among them [Nombre01 018]. The same holds true with the testimony of [Nombre02 142], who indicated that [Nombre01 041] acknowledged having paid gifts (dádivas) to public officials, in the media. Finally, the company [Nombre01 091] had, within its hiring policies, a prohibition against hiring public officials as advisors. **v)** Based on the statement of [Nombre02 128], it was established that [Nombre02 018] was informed about the topic of mobile telephony and about [Nombre01 091]'s interest in eliminating direct procurement without bidding. [Nombre01 091] had carried out two public and complaint campaigns, one to oppose the procurement of fixed lines from Ericsson in 1999 and another in 2000, regarding GSM technology, with there being contact with [Nombre01 018] since 1999. There were several meetings with the then-deputy, and on one occasion, [Nombre01 018] asked [Nombre01 128] to speak with his superiors, a meeting that, according to the witness, did take place. **vi)** For the court, from what [Nombre01 128] said, it is inferred that [Nombre01 018] was contacted to discuss the elimination of procurements and the opening of bidding, which leads to the topic of the 400,000 cell lines. This confirms the version of [Nombre02 064], in the sense that the offering of the gift had to do with the topic of mobile exchanges and GSM technology and, to that extent, there are indications that allow us to glimpse that a remunerative promise was also made to [Nombre01 018] under modal and temporal circumstances similar to the one given to [Nombre01 064], only that while the latter was called by [Nombre01 078], it was [Nombre 018] who asked to speak with [Nombre01 128]'s superiors. Furthermore, the payments were also made to him through the same channels as to other accused. **vii)** There is documentation attesting that on August 17, 2000, at the [...] café, [Nombre02 041] met with [Nombre 018] and [Nombre 063]; **viii)** [Nombre01 144], a messenger for the company [Nombre 091], said he had taken envelopes, sent by [Nombre 041], to the accused [Nombre01 022], [Nombre 001], [Nombre01 018], and [Nombre01 028], at their homes and offices. [Nombre01 041]'s secretary said that envelopes were sent to ICE and to the accused, and that she knew their contents, however, *"...this does not exclude that [Nombre01 144] took envelopes that were not the ones she knew of; envelopes that also had different characteristics from those described as known to her."* (F. 16,011 front). **ix)** Just as the public campaign by [Nombre 091] in favor of public bidding and migration to GSM technology began in 2000, between July 2000 and December of that year, representatives of [Nombre01 091] also met with deputies and other figures from the political sphere. It is then when the encounters with [Nombre01 018], [Nombre01 001], and [Nombre01 064] took place, all of whom ultimately received monies originating from [Nombre01 060]. **x)** Finally, the *a quo* evaluated abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [Nombre01 018] came from [Nombre01 060]. **xi)** Notwithstanding the foregoing, the court understands that the prosecution's request to convict [Nombre01 018] for the crime of improper bribery is not admissible, on the basis that this accused met with the representatives of [Nombre01 091] in fulfillment of the obligation that every deputy has to receive the public. This is because in fact number 220 of the accusation, reference is made to the offering of the gift, and in fact number 221 to its acceptance, without the elements of improper bribery having been described. Therefore, the court indicates, regardless of whether what the Public Prosecutor's Office affirmed in its conclusions was proven or not (namely, that a remunerative promise was made to [Nombre01 018] for receiving the public), as the accusation does not contain such information, the only crime that can be considered configured is that of illicit enrichment, insofar as he admitted the gift that was presented or offered to him due to the position he held (f. 16,054 to 16,056 front). In the case of the accused [Nombre01 018], **the hypothetical exclusion of the statement of [Nombre01 064] has particular significance**, because although without that evidence, as will be explained later, it is impossible to confirm the appealed judgment insofar as it found it proven that this defendant admitted a gift that *was offered* to him under the terms foreseen by the criminal definition of illicit enrichment, the application of the other scenario contemplated in art. 346 subsection 3) of the Penal Code is not ruled out, namely, that of *the admission of a gift presented*. Thus things being so, and it being evident that to resolve the legal situation of this accused (including the topic of the statute of limitations) a more thorough examination of the facts and evidence is required, this chamber will proceed to address the appeals formulated by [Nombre01 018] personally and by his defender, Attorney José Miguel Villalobos Umaña.

**5) [Nombre02 033]**: The core evidence considered by the *a quo* was the statement of [Nombre01 064]. Without it, there is no possibility whatsoever that the judgment of certainty reached remains unscathed, since even if through its hypothetical suppression, it can be reasonably demonstrated that some funds from [Nombre01 060] ended up in his hands, or in those of individuals or legal entities close to him, these are funds that [Nombre01 064] received in the first place and that then, only in part, he transferred to [Nombre01 033]. Furthermore, the only evidence there is regarding *the motive or justification* for these transfers is the word of the cooperating accused (imputado colaborador) himself, in the sense that at the end of 2000, he spoke with [Nombre01 033] about the promise of economic retribution that had been made to him by the heads of [Nombre02 091] in relation to the matter of the 400,000 lines, and that the then [...] [Name70] urged him to accept it. Therefore, it is held that without the account of [Nombre01 064], the conviction imposed on [Nombre01 033] is left completely devoid of any evidentiary basis. To better explain the foregoing conclusion, this chamber will begin by synthetically pointing out the arguments used by the trial court to convict [Nombre01 033], but not before clarifying that it will not delve into the reasons the *a quo* invoked to consider the word of [Nombre01 064] credible, the foregoing not only because they have already been analyzed in this resolution, but because they lack any interest if one considers that the opportunity criterion and the evidence derived from it were declared illegal. Regarding [Nombre01 033], the following was weighed: **i)** [Nombre01 064] had an extensive career in public service. He was, for example, a deputy, Minister of Housing and Urban Settlements in the [Nombre01 033] administration (from May 1998 to July 1999), presidential advisor from August 1, 1999, to May 9, 2002, and general director of the presidential house. Also, with the endorsement of [Nombre01 033], he was appointed by the government council as director of ICE from August 3, 1999, onward, positions he held simultaneously. [Nombre01 064] was a director of ICE until May 31, 2010, and for this, he had the endorsement of the following administration. [Nombre01 064] was a person very close to [Nombre01 033] and, notwithstanding the hierarchical relationship between the two, there was also a friendship (folios 16,088 to 16,111, volume XXXIII); **ii)** [Nombre01 064], as an ICE director, had a relationship with [Nombre02 041] and [Nombre01 078] (f. 16,111 to 16,116 front); **iii)** as determined, since 1997, there was a practice within [Nombre01 091] of offering various attentions and courtesies to ICE public officials. The *a quo* says that although the ultimate purpose of this practice was not to make illicit proposals, this is what [Nombre01 041] and [Nombre01 078] used to approach public officials, gain their trust, and determine if they could admit an eventual remunerative promise. All of this confirms what [Nombre01 064] said, in the sense that there was a seduction process that culminated in the promise of a gift (dádiva) (f. 16,112 front to 16,116 front); **iv)** there were encounters between some public officials—[Nombre01 022], [Nombre01 001], and [Nombre01 018]—with [Nombre02 041], who also sent them envelopes (f. 16,114 and 16,115 front); **v)** [Nombre01 041] made a spontaneous statement where he admitted the payment of gifts to public officials, a statement alluded to by several witnesses ([Nombre01 116], [Nombre01 164], and [Nombre01 142]). [Nombre02 068] admitted the facts, [Nombre01 001] accepted before the press having received money, and [Nombre01 064] also admitted having received from [Nombre01 041] and [Nombre01 078] a promise prior to the award, which he made known to [Nombre01 033] (f. 16,111 and 16,112 front); **vi)** regarding the existence of the remunerative promise given to [Nombre01 064], the core evidence is his own "testimony," which the *a quo* deemed credible. Regarding the meeting between [Nombre01 064] and [Nombre01 033] at the latter's house, that statement is also the evidence (cf. folios 16,126 to 16,134 front, volume XXXIII). [Nombre01 064] said that he, at the end of 2000, met with [Nombre01 078] and [Nombre 041] at the former's request, at the [Nombre01 094] restaurant, near the airport, an occasion on which both made him a promise of a gift in exchange for promoting the technology migration, seeking the bidding process instead of direct purchases, and voting in favor of [Nombre01 091]. That he, in principle, accepted, but upon thinking it over decided to ask [Nombre01 033], since the latter was in a better position to direct the criteria of the board of directors' [Name10] if necessary. It is for this reason that he met with [Nombre01 033] the following day, to present him with the offer, which the then [...] [Name07] accepted, indicating that the distribution of the profit would be 60% for [Nombre01 033] and 40% for [Nombre01 064]. **vii)** To confirm the existence of the meeting at [Nombre01 094], it was taken into account that, according to their migratory movements, all participants ([Nombre01 064], [Nombre01 041], and [Nombre01 078]) were in the country as of December 2, 2000. Equally, it was weighed that for December 3, the date on which [Nombre01 064] said he met with [Nombre01 033] at the latter's house, both were in the country (f. 16,130 and 16,131 front); **viii)** two of the directors linked to these acts of corruption were appointed in the [Nombre01 033] administration, namely, [Nombre01 064] and [Nombre01 068], who has already been sentenced through an abbreviated procedure. As for the third, [Nombre01 022], although appointed in another administration, he had a prior link with [Nombre01 033] (f. 16,120 and 16,121 front); **ix)** regarding the delivery and receipt of the gift, it is found that it was [Nombre01 064] who transferred the funds to [Nombre02 033]. That is, [Nombre01 058]. did not transfer monies to the accounts of [Nombre01 033] or to the accounts of individuals or legal entities in his most immediate circle, but rather transferred them to [Nombre01 064] who, in turn, delivered them to [Nombre01 033] under the terms described from folios 16,145 to 16,151 front of the judgment. **For this chamber, with the hypothetical exclusion of the statement of [Nombre01 064], the conviction imposed on [Nombre01 033] is left without any evidentiary basis whatsoever**. The statement of the cooperating accused is the only evidence to demonstrate that he shared with [Nombre01 033] the promise that, according to him, [Nombre01 041] and [Nombre01 078] made to him. Without that account, it is impossible to confirm the appealed judgment insofar as it finds it proven that the then [...] [Name59] gave the support needed to accept the promise of economic retribution, or that it was [Nombre01 033] who determined how the irregular profits delivered by [Nombre02 058] were to be distributed. It is important to note that abundant evidence was introduced and exhaustively examined at the trial that allows determining that funds originating from [Nombre01 060] reached the hands of [Nombre01 033] or those close to him; however, from this it cannot be inferred that [Nombre01 033] participated in the acceptance of the promise of a gift under the terms that [Nombre01 064] referred to, or that the funds were associated with that promise. Note that [Nombre01 058]. never directly delivered monies to [Nombre01 033] or to individuals or legal entities in his circle, but rather delivered them to [Nombre01 064], who in turn transferred part of them to [Nombre01 033]. Thus things being so, without his "testimony" (and again clarifying that the word testimony is used in a non-technical sense, since the cooperating accused is not a witness in the strict sense as he does not offer his statement under oath) it cannot be affirmed, as if it were a proven fact, that there was a link between the then [...] [Name25] and the mentioned company. This is because, aside from the meeting between [Nombre01 064] and [Nombre01 033] that, according to the former, took place, [Nombre01 033] did not carry out any action that would allow suggesting, even as probable, his participation in the investigated facts. Neither the accusation nor the judgment attributes to him having contacted any member of the ICE Board of Directors or any other public official with the purpose of determining their decisions regarding the matter of the 400,000 lines. He was not even accused of maintaining contacts with the heads of [Nombre01 091] who were labeled as corruptors. **Therefore, the demonstration of the link between [Nombre01 033] and the alleged promise of economic retribution prior to the award of the mentioned contract depends exclusively on evidence that this appeals court has declared illegal**. At this point, it is necessary to clarify that the receipt by [Nombre01 033] of some funds originating from [Nombre 060] (the only fact that can be demonstrated without the statement of [Nombre01 064]) is not enough to confirm the judgment insofar as it considered him an instigator of the aggravated corruption crime by improper bribery. Not only because without that evidence, it is impossible to affirm, *beyond a degree of probability*, that the promise of economic retribution existed, but because likewise, other hypotheses that were not charged cannot be ruled out with certainty, namely, that the monies were a gratuity for an act fulfilled without a prior promise, or that it was the public officials who induced their payment.

Furthermore, for other reasons that will be set forth below, upon examining each of the deliveries of money that the trial court deemed accredited. <span style="font-family:Arial; text-decoration:underline">Regarding the first delivery</span><span style="font-family:Arial"> (for there were several more), proven fact number 96 states: “ </span><span style="font-family:Arial; font-style:italic">96) Without specifying a date, but after January 6, 2002, and before February 18 of that same year, in accordance with the illicit distribution percentages established by the accused [Nombre01 033], the indictee [Nombre01 064] delivered to [Nombre02 033] at the Presidential Office the sum of one hundred thirty thousand dollars ($130,000), through 7 bearer certificates of deposit from Banco Internacional de Costa Rica S.A., namely No. 19692 for an amount of one hundred thousand dollars ($100,000), No. 19693 for an amount of five thousand dollars ($5,000), No. 19694 for an amount of five thousand dollars ($5,000), No. 19695 for an amount of five thousand dollars ($5,000), No. 19696 for an amount of ($5,000), No. 19698 for an amount of five thousand dollars ($5,000), and No. 19699 for an amount of five thousand dollars ($5,000). The foregoing instruments were generated from the account of [Nombre02 166]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">-mother of [Nombre01 064]- and issued on December 14, 2001, with a maturity date of February 14, 2002...”. </span><span style="font-family:Arial">As can be seen, the certificates that [Nombre01 064] delivered were generated from his mother's account, [Nombre01 166], </span><span style="font-family:Arial; text-decoration:underline">and not from the account of his wife, [Nombre01 080], which was the one supplied with the funds from [Nombre01 060]</span><span style="font-family:Arial">. Although [Nombre01 064] explained the foregoing during the trial, pointing out that the funds coming from [Nombre01 060] were blocked or frozen and that is why he turned to his mother's account to pay [Nombre01 033] (f. 16,165 front), by suppressing his statement it is impossible to determine with certainty both the reason for that first delivery, and the link between the funds and [Nombre02 060]. It is important to note that although there is documentary evidence making it possible to demonstrate that the two hundred twenty-five thousand dollars ($225,000) that [Nombre 058]. transferred on December 10, 2001, to the dollar account that [Nombre01 064]'s wife had at Saint Georges Bank were frozen (cf. evidence No. 208, folio 28, which we have reviewed), this does not delegitimize what was previously stated, since that documentation does not even allow one to suspect that the $130,000 that [Nombre01 064] delivered to [Nombre01 033] between January and February 2002, have any relationship with the aforementioned $225,000, or at the very least, with [Nombre01 060]. For this, it is reiterated, the statement of the cooperating accused is indispensable. </span><span style="font-family:Arial; text-decoration:underline">Regarding the second delivery of funds</span><span style="font-family:Arial">, in the proven facts it was stated: </span><span style="font-family:Arial; font-style:italic">“98) On May 20, 2002, with the resources from account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán, supplied with the money previously deposited by [Nombre 060], the indictee [Nombre01 028], in accordance with the task corresponding to him within the distribution of functions among the corruptors, partially cancelled the sight investment No. 21200289108 for the sum of one hundred thousand dollars</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ($100,000) and constituted four investment certificates for</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> twenty-five thousand dollars ($25,000) each, all to the bearer and issued on May 20, 2002, numbers Identificacion01</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Identificacion02 Identificacion03 Identificacion04 and the respective interest coupons for $64.58 each. The accused [Nombre01 028] delivered these certificates to the co-indictee [Nombre 041] so that he, in turn, would deliver them to [Nombre01 064] also as part of the promised illicit payment. 99) To achieve that end, without specifying a date, but after May 20, 2002, [Nombre01 064] went to the front of the offices of the company [Nombre01 091] in Sabana Sur, and received from [Nombre01 041] a yellow manila envelope which contained the described certificates, and with them carried out the following financial movements: a. With the proceeds of certificates No. Identificacion03 and No. Identificacion04 including the accumulated interest from certificates No. Identificacion01 and No. Identificacion02, the manager's check from Banco Cuscatlán No. 12847-3 dated June 26, 2002, was acquired for fifty thousand two hundred fifty-three dollars and thirty-two cents ($50,253.32), which was deposited into [Nombre 080]'s account at Banco BCT S.A. on the 27th of that month and year. b. The proceeds of certificates No. Identificacion01 and No. Identificacion02 were reinvested on the orders of [Nombre 080]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, according to the plans of [Nombre 064], in the investment certificate from Banco Cuscatlán No. Identificacion05 issued on June 26, 2002, to the bearer, for the sum of fifty thousand dollars ($50,000). 100) On an undetermined date, but after June 26, 2002, in accordance with the distribution of money agreed upon among them, [Nombre01 064] delivered certificate No. Identificacion05 for fifty thousand dollars ($50,000) to the defendant [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, who received it at his home. Before July 30 of that year, [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, in turn, delivered the referenced certificate to Mr. [Nombre01 167] (who since 1994 worked as administrator of the companies linked to the indictee [Nombre01 033]), and ordered him to make some payments. a) He cancelled certificate No. Identificacion05 and requested from Banco Cuscatlán de Costa Rica S.A., the issuance of three manager's checks that were drawn up on July 30, 2002, No. 14589-1 for fourteen thousand seven hundred fifty dollars ($14,750), No. 14590-1 for five thousand two hundred dollars ($5,200) and No. 14591-6 for seven thousand dollars ($7,000), in the Name of [Nombre01 291]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">; and withdrew in cash the sum of twenty-three thousand thirty-five dollars ($23,035). b) On July 31, 2002, with manager's check No. 14589-1 he paid the debt pending at that time on the credit card in the Name of the accused [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">No. 4732981669923003 from Banco Interfin, for an amount of five thousand one hundred forty dollars and eight cents ($5,140.08). c) On July 31, 2002, with manager's check No. 14590-1, [Nombre01 167] paid the balance in colones of three hundred twenty-five thousand eight hundred four colones and fifteen céntimos (¢325,804.15) and in dollars of four thousand three hundred dollars and fifty-six cents ($4,300.56), both from the credit card of the accused [Nombre01 033] No. [Valor 014] from Banco Internacional de Costa Rica. d) With manager's check No. 14591-6 for seven thousand dollars ($7,000) in the Name of [Nombre01 291], who has been the driver of the accused [Nombre01 033] since March 1992, in compliance with the instructions of [Nombre01 033], payroll, electricity, water, telephone, taxes, among other obligations of the family of [Nombre01 033] were paid ...”</span><span style="font-family:Arial">. Just as the</span><span style="font-family:Arial; font-style:italic"> lower court (a quo)</span><span style="font-family:Arial"> explained from folios 16,170 to 16,186 front, there is documentary evidence that makes it possible to demonstrate that [Nombre 080], wife of [Nombre01 064], endorsed four investment certificates for $25,000 each, all to the bearer, constituted with funds from the account of [Nombre02 058]., previously supplied with money originating from [Nombre01 060]. Likewise, that the proceeds of two of those certificates were reinvested in investment certificate No. Identificacion05 from Banco Cuscatlán, also to the bearer, for the sum of $50,000, which was endorsed by [Nombre02 167], a person close to [Nombre01 033] and who used part of the money to pay two credit cards in the Name of [Nombre01 033] and expenses of his dwelling house. Now, although we can reasonably maintain that [Nombre01 033] through intermediaries - [Nombre01 058]., [Nombre 080] and later [Nombre 167]- incorporated into his assets funds proceeding from [Nombre01 060], </span><span style="font-family:Arial; text-decoration:underline">without the statement of [Nombre01 064] it is impossible to ensure that those sums correspond to the payment or fulfillment of a promise of a gratuity that [Nombre01 064] received</span><span style="font-family:Arial"> </span><span style="font-family:Arial; text-decoration:underline">with specific content and purposes and that [Nombre01 033] determined him to accept</span><span style="font-family:Arial">. This same thing occurs with </span><span style="font-family:Arial; text-decoration:underline">the third delivery of funds</span><span style="font-family:Arial">, examined from folios 16,186 front onward and described in proven facts numbers 101 to 104:</span><span style="font-family:Arial; font-style:italic"> “101) Without specifying a date, but in the month of August 2002, the accused [Nombre01 041] announced to [Nombre01 064] a third payment of the promised gratuity.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> With the purpose of not raising suspicions in the national financial system, [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">requested that he make the deposit into two accounts, No. [Valor 015]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">at Terrabank and No. [Valor 016] at BCT International Bank (off shore of Banco BCT), in the Name of [Nombre 080]. 102) On August 14</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">, 2002, with the resources from account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> supplied with the money previously deposited by [Nombre01 091], the indictee [Nombre02 028], in accordance with the task corresponding to him within the distribution of functions among the corruptors, requested from the Personal Banking Department of Banco Cuscatlán, to transfer the sum of one hundred thousand dollars ($100,000) to account No. [Valor 015] of Terrabank, and the sum of five hundred ninety thousand dollars ($590,000) in account [Valor 055]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of BCT Bank International to then transfer it to account No. [Valor 016] of [Nombre01 080].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> These funds were formally credited on August 16, 2002, after applying the respective bank commissions. 103) On August 19, 2002, [Nombre02 064] with the five hundred ninety thousand dollars ($590,000) mentioned in the previous fact, arranged for the issuance of investment certificate No. 25694 for a 92-day term at BCT Bank International for the sum of three hundred thousand dollars ($300,000), which was liquidated early on October 28 of the current year and both the principal and the interest were credited back to account No. [Valor 016].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> On that same date, [Nombre01 064] requested the issuance of three investment certificates all to the bearer, two for one hundred thousand dollars ($100,000) and one for seventy thousand dollars ($70,000), numbers 4523, 4522 and 4521 respectively and with a maturity date of January 28, 2003. 104) Without specifying a date, but after October 28 and before November 27, 2002, according to the plan and distribution of the gratuity, established by the accused [Nombre01 033], the latter personally received from the indictee [Nombre01 064] investment certificates No. 4521, No. 4522 and No. 4523 from Banco BCT S.A., and one hundred thousand dollars ($100,000) in cash. The indictee [Nombre01 033] disposed of this money as set forth below: a) He delivered certificate 4521 for its sale to ACOBO S.A. together with the respective interest coupon on November 4, 2002.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> The following day, ACOBO registered the sale of said negotiable instrument for a total of seventy thousand forty-five dollars and thirty-five cents ($70,045.35), an amount that it credited to account No. [Valor 017]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of the wife of the accused [Nombre01 033], [Nombre01 169]. That same day, 20 participations of “[Nombre01 171]” were acquired for the amount of one hundred one thousand seventy-eight dollars and seventy-eight cents ($101,078.78) which were partially covered with the indicated funds.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Subsequently, on November 12, 2002, the sale transaction of the cited 20 participations was made to the company [Nombre 172]., in whose account the gentlemen [Nombre01 173] and [Nombre01 167], collaborators of the accused [Nombre01 033], appear as authorized. Despite the fact that the judicial and extrajudicial representative of said company is Mr. [Nombre01 175], son of [Nombre01 033], the truth is that the latter maintains a real and direct link with its management. b) Between mid and late November 2002, the accused [Nombre01 033] delivered certificates No. 4522 and No. 4523 to [Nombre01 173]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, a man of his trust, whom he instructed to deposit them at ACOBO together with the respective interest coupons, with the purpose that the brokerage house negotiate them to make them effective. Subsequently, the amount of the sale was credited to account No. [Valor 019]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre01 176] which, although it was formally represented by [Nombre01 173] and [Nombre01 167], the accused [Nombre01 033] at that time maintained a real and direct link despite not legally appearing as its president or proxy. c) Finally, as a product of the liquidation of the certificates mentioned in the previous point, on December 2, 2002, check No. 5118-1 was drawn against the checking account [Valor 020]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of ACOBO at Banco Interfin, for one hundred ninety-nine thousand seven hundred ninety dollars ($199,790), in favor of [Nombre01 173], who on that same date deposited it into his checking account No. [Valor 021] at Banco San José, which at that time showed a balance of $248.75. d) In November of the year 2002, [Nombre01 173]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">proposed to [Nombre01 033] the possibility of participating as a capitalist partner of Mr. [Nombre01 177]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">in a housing project for the upper-middle class that consisted of eighteen houses and six apartments, since the latter did not have enough money.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">agreed to invest in the project, entrusting [Nombre01 173]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">that with the proceeds of check No. 5118-1 from Banco Interfin mentioned above, he make the investment effective.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> In this way, [Nombre01 173] issued funds starting from December 2002 and until July 2003 in favor of [Nombre01 177] or else in favor of the company [Nombre 180], a company that [Nombre01 177] represented.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> To hide the participation of [Nombre01 033], the investment was made through a company owned by [Nombre01 173] called [Nombre 182]., represented by [Nombre01 187], who was the secretary of [Nombre01 167] and a person of trust of [Nombre01 173], in turn the latter made a personal contribution to the project of fifteen thousand dollars ($15,000).</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> To formalize the business, the following contracts were entered into: i) Purchase option between [Nombre 183]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">representing the company [Nombre 184]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., owner of the real property registered in the Partido de Heredia, real folio registration No. [Valor 022]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Nombre01 177], the total value of the sale being the sum of one hundred fifty-two thousand eight hundred twenty-five dollars and sixty-eight cents ($152,825.68). ii) Contract dated December 4, 2002, between the company [Nombre01 180]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. represented by [Nombre01 177] and [Nombre 182]. represented by [Nombre01 187], by which it was expressed that [Nombre01 182]. was interested in participating in the housing project of the company [Nombre02 180]., it contributes the sum of one hundred fifty thousand dollars ($150,000) and by reason of the initial risk of the investment by [Nombre01 182]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., the acquired lots would be registered in its name. Likewise, it was stipulated that [Nombre 182]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. would receive seventy-five thousand dollars ($75,000) in profits and the rest [would go to] the company [Nombre 180]. Subsequently, approximately three months later it was increased by fifty thousand dollars ($50,000), leaving in total the contribution of [Nombre01 182]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., at two hundred thousand dollars ($200,000).</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> iii) Subsequently, another contract was made between [Nombre01 177]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Nombre01 187]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">in her capacity as legal representative of [Nombre01 182]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., by means of which the former ceded to the latter the initial purchase option with the company Servicios Casablanca, which operated automatically. iv) Likewise, on December 4, 2002, by public deed before notary public Alex Thompson Chacón, Mrs. [Nombre01 183] as president with powers of generalísima proxy of [Nombre01 184] transferred to the company [Nombre01 182]., represented in that act by Mrs. [Nombre01 187], the following properties all registered in the Partido de Heredia:</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 023] with an area of 160.4 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 024] with</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> an area of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 160.4 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 025] with an area of 160.4 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 026]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with an area of 277.13 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. 146.397-000, with an area of 166.50 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 027] with an area of 180.77 square meters; real folio No. [Valor 028] with an area of 160 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 029]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with an area of 160 square meters;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> real folio No. [Valor 030] area of 160 square meters.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> The total price of the properties was set at the sum of eighty-six thousand seven hundred sixty-two dollars and forty-two cents ($86,762.42), likewise constituting a first-degree mortgage for the cited value and over the referenced properties. v) The recovery from the sale of the properties began in March 2003 and entered into accounts No. [Valor 031]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">in the Name of [Nombre 182]., No. [Valor 032],</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> No. [Valor 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and No. [Valor 021]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">all in the Name of [Nombre01 173] at Bac San José.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> After several financial movements, from the money that entered the account of [Nombre01 182], finally part of this money was received by the accused [Nombre01 033], upon recording between September 8, 2003, and June 4, 2004, credits in his favor for a total of fifty-two thousand two hundred twenty dollars ($52,220).</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Likewise, in checking account No. [Valor 031]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre 182]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., the gentleman [Nombre02 173] was credited a total sum of eighty-one thousand two hundred fifty ($81,250), and the gentleman [Nombre01 167] was credited the sum of seventy-nine thousand three hundred fifty dollars ($79,350) ...”. </span><span style="font-family:Arial">In the case of this delivery, we have that after a series of transactions that are not of interest to recapitulate, investment certificates No. 4523, 4522 and 4521 were issued based on the resources from [Nombre 080]'s account at BCT Bank International, all to the bearer, the first two for $100,000 and the last for $70,000, which after several transformations, ended up in the possession of legal entities linked in one way or another to [Nombre01 033]. For the undersigned, although there is no doubt whatsoever about the foregoing, since the trail followed by the money was meticulously reconstructed (cf. folios 16,186 to 16,221 front, volume XXXIII), this says nothing regarding the reasons by virtue of which [Nombre01 033] received those funds, it being the case that this extreme can only be established through the account of [Nombre01 064]. Furthermore, in this delivery there is also talk of $100,000 that according to the cooperating accused he delivered </span><span style="font-family:Arial; font-style:italic">in cash</span><span style="font-family:Arial"> and in relation to which there is no evidence whatsoever beyond his own words, just as the trial court itself acknowledges at folio 16,220 front. </span><span style="font-family:Arial; text-decoration:underline">In the case of the fourth delivery</span><span style="font-family:Arial"> that has been deemed proven, and which is examined from f. 16,221 to 16,231 front, there is talk of a check for $81,480 drawn to [Nombre01 189]., a company with which [Nombre01 033] had a direct link. The </span><span style="font-family:Arial; font-style:italic">lower court (a quo)</span><span style="font-family:Arial"> states in the proven facts: “</span><span style="font-family:Arial; font-style:italic">105) On December 10, 2002, with the resources from account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> supplied with the money previously deposited by [Nombre01 091], the indictee [Nombre02 028], in accordance with the task corresponding to him within the distribution of functions among the corruptors, delivered to [Nombre01 064]</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> the sum of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> one hundred eighty thousand dollars ($180,000),</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> by means of a transfer to account No. [Valor 016] of [Nombre 080] at BCT Bank International, less the deduction of the bank commission of $9.50. 106) With the resources just indicated [Nombre01 064] made an investment for a 31-day term with maturity on January 10, 2003, for the sum of two hundred thousand dollars ($200,000). At the end of the term, the money re-entered his account and [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, in accordance with the prior orders given by the co-defendant [Nombre01 033], issued the directive to issue the manager's check No. 012342 from BCT Bank International for the sum of eighty-one thousand four hundred eighty dollars ($81,480) in favor of the company [Nombre 189]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. with which he maintained a real and direct link. 107) Without specifying a date, but after January 23, 2003, [Nombre01 064] delivered the check to the defendant [Nombre01 033] at the home of the latter's in-laws.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Then on February 3, 2003, [Nombre01 033] deposited that manager's check No. 012342 at Riggs Bank N.A. in Washington D.

C., which was applied to account No. [Valor 034] of the company [Nombre 189], directly linked to the accused [Nombre01 033]. The defendant [Nombre01 033] later admitted having received the amount of this check and two others—which will be described later—allegedly as a loan granted by [Nombre01 064], to whom he made a payment request, but it was rejected by [Nombre01 064] due to the non-existence of such a loan because the amounts came from funds of [Nombre01 091]...” Without the testimony of [Nombre02 064], besides it being impossible to determine with certainty the reason for this transfer of funds, it is also impossible to rule out the defense's theory that these were part of a loan that [Nombre01 064] made to the then [...].

The fifth and final delivery, described in proven fact number 111) and examined from folios 16,232 to 16,241 recto, is for approximately $188,000, delivered as follows: two checks (one for $30,000 and another for $28,083) and $131,000 in cash. The a quo states: “111) Approximately in the month of September 2003, in fulfillment of the agreed-upon plan and distribution, [Nombre01 064] delivered one hundred thirty-one thousand dollars ($131,000) in cash to the accused [Nombre01 033] at his mother-in-law's house. Likewise, following the instructions given by [Nombre01 033], he made out two checks in favor of [Nombre01 169], which were drawn at the same time but were dated differently, with different sequences and for two different amounts, with the purpose of avoiding suspicion within the financial system. In this way, [Nombre01 064] drew check number 419 dated September 9, 2003, for an amount of thirty thousand dollars ($30,000.00) and check No. 425 for an amount of twenty-eight thousand eighty-three dollars ($28,083.00) dated September 25, 2003, both against checking account number [Valor 056] of [Nombre 080] at Saint George Bank, in favor of [Nombre01 169]. The accused [Nombre 033], after endorsement by [Nombre01 169], deposited the checks into the ACOBO account. Subsequently, the proceeds thereof were recorded by that brokerage house as a credit to investment account No. [Valor 017] in the name of [Nombre01 169] and used to purchase 11 shares in a real estate fund for a total of fifty-five thousand nine hundred sixteen dollars and eighty-nine cents ($55,916.89) and with the remainder, a check was issued for two thousand one hundred fifty-two dollars and eighty-three cents ($2,152.83) in favor of Banco Interfin S.A. Later, the defendant [Nombre01 033] admitted having received the amount of these two checks and another—already indicated—allegedly as a loan granted by [Nombre01 064], to whom he made a payment request, which was rejected by [Nombre01 064] due to the non-existence of such a loan, because such amounts came from funds of [Nombre01 091]...” As has been indicated, a transfer of sums in cash has been deemed proven, the sole evidentiary support for which is the illicit and implausible testimony of the collaborating defendant, as well as a transfer of funds (the mentioned checks) regarding which, although there is documentary evidence, their reason for being is unknown, as it is impossible to establish with certainty—a matter that is essential if one intends to convict [Nombre01 033] for having instigated [Nombre01 064] to accept a promise of economic retribution with specific content and purposes. In summary, the testimony of [Nombre01 064] is essential in the case of [Nombre01 033]. Without it, it is not possible to deem it proven that [Nombre01 064] received a promise of economic retribution about which he informed [Nombre01 033], and that the latter gave him the necessary impetus to accept it, also defining the distribution percentages of the criminal profit that might be obtained (and which, it is worth adding, do not correspond to what was actually received by each party). For all the foregoing, it is appropriate to annul the judgment insofar as it declared [Nombre01 033] an instigator of the crime of aggravated corruption by improper bribery committed by [Nombre01 064]. Having said this, the question that must be asked is whether the proven facts that remain intact after eliminating the promise of a gift prior to the awarding of the 400,000 lines—and which is itself supported by illegal evidence—can be subsumed under any criminal offense. The answer to this question is no. Although indeed, and except for the transfers of cash funds, it is accredited that [Nombre01 064] transferred funds to [Nombre01 033] on various occasions, whether directly or through natural or legal persons close to him, the characteristic elements of crimes other than aggravated corruption by improper bribery were neither charged nor deemed proven, a topic that acquires major importance in the case of [Nombre01 033], since the only conduct attributed to him is having induced [Nombre01 064] so that the latter, as the principal, would admit a promise of economic retribution in relation to the matter of the 400,000 lines, in exchange for carrying out specific actions in three areas (migration to GSM technology, bidding processes or public tenders, and a favorable vote for [Nombre01 091]). Therefore, only by violating the principle of correlation between accusation and judgment and including circumstances not foreseen by the requesting body at the time could [Nombre01 033] be considered the principal of another crime, even a residual one such as illicit enrichment. Moreover, as explained when examining the legal situation of the accused [Nombre01 001], the criminal offense of illicit enrichment provides for both the admission of gifts presented and the admission of gifts offered. In the first case, the presentation and material receipt of the retribution must occur during the performance of the position. In the second, both the offer and the admission must occur within the aforementioned period, it being irrelevant, as a subsequent unpunished act, that the public official acquires the pecuniary advantage once he or she leaves the position that motivated the offer. In this matter, the typical conduct to consider is the first, namely, the admission of gifts presented, since it was not possible to deem proven either the promise of economic retribution made to [Nombre01 064] before the awarding (which constituted the basis of the crime of aggravated corruption by improper bribery), nor any other offer of undue advantage to [Nombre01 033] (which, in any case, was not charged). Having clarified this point, it is evident that the conduct of [Nombre01 033] described in the proven facts, which remains intact after the exercise of hypothetical suppression (and which consists of receiving the economic advantages that were delivered to him by [Nombre01 064]), cannot be subsumed under numeral 346 subsection 3) of the Criminal Code applicable in this matter, since, with the exception of the seven certificates described in proven fact number 96, those receipts occurred after the accused ceased to be president of the country (cf. proven fact number 61 in relation to those already transcribed), which means they are atypical actions. Now, regarding the seven bearer deposit certificates from Banco Internacional de Costa Rica S.A., although these were admitted during the performance of his position, as provided for by the criminal offense, after the hypothetical exclusion of the testimony of [Nombre01 064], it is impossible to ensure that these were presented to him in consideration of his office. [Nombre01 064], who at that time was not only a high-ranking public official but also someone very close to [Nombre01 033], was the one who delivered the certificates. Furthermore, the certificates were generated from the account of the collaborator's mother, Mrs. [Nombre01 166], an account that had no link whatsoever to [Nombre01 060]. As stated, and at least with respect to these certificates, there are no elements to establish that [Nombre01 064] delivered them to [Nombre01 033] for being the [...]. As Nombre66 rightly points out when analyzing the crime of admission of gifts under Argentine legislation, which is also partly similar to our own, it is indispensable to demonstrate that the gift delivered was given in consideration of the receiver's office, which requires ruling out that it is linked to a different circumstance, such as friendship or another relationship outside that office (Nombre66, op. cit., pp. 280-281), which is impossible in this matter, for the reasons already stated. Finally, as if the foregoing were not enough, the criminal action to prosecute the crime of illicit enrichment would be time-barred. In this regard, note that [Nombre01 033] was questioned on October 15, 2004 (f. 552 to 558 recto, volume II). The statute of limitations period for the crime of illicit enrichment was 18 months (because the procedure was ordinary at that time), meaning that this period expired on April 15, 2006, a date by which neither had another cause for interrupting the computation of the period taken effect, nor had the resolution declaring the case to be of complex processing become final (the latter occurred on June 23, 2006). That is, before the process changed its nature, a legal situation was consolidated in favor of [Nombre01 033] which, as the Third Chamber itself admitted when ordering the remand, prevents applying the effects of Article 376, last paragraph of the Code of Criminal Procedure. In that sense, and assuming the risk of incurring in repetitions (as the topic was addressed when examining the cases of co-defendants [Nombre01 001] and [Nombre01 022]), the cassation body stated: “Thus, it is clear that the validity of the reducing effect on the prescriptive period as a result of the ordinary processing of the file was subject to the case continuing to be processed as ordinary; by contrast, when complex processing was ordered and became final in the early stages of the process, the reducing condition of the prescriptive periods changed, in accordance with the cited numeral 376, given that the only exception to that reasoning would have arisen in the scenario where the fatal prescriptive period had expired before that order, since in that scenario the extinction of the criminal action by prescription would have occurred, considering that circumstance as a consolidated legal situation, to which the effects of the aforementioned Article 376 could not have been applied” (Resolution No. 1847-2014, Considerando IV, f. 176,427 verso, volume XLIII, the underlining is not from the original). In summary, it is held that, even following the interpretation made by the Third Chamber regarding Article 376 of the Code of Criminal Procedure, in the sense that the finality of the resolution declaring the procedure to be of complex processing eliminated the reducing effect on the statute of limitations periods that took place before that finality, the fact is that on the date of that declaration, a consolidated legal situation already existed in favor of [Nombre01 033] that it is not possible to disregard, because the statute of limitations term had expired. Likewise, the entry into force of Article 62 of Law No. 8422, called the Law against corruption and illicit enrichment in public office, does not modify this conclusion, since [Nombre01 033] appeared to give his investigatory statement on October 15, 2004, that is, before the cited regulation was published (on October 29, 2004). As explained supra, the same cassation body, in resolution No. 2014-1847, specifically in Considerando IV, folios 176,429 to 176,431 recto, recognized that it is not possible to give retroactive effects to a subsequent procedural law, not only because in the case of procedural laws the one that must be applied is the one in force at the time of carrying out the act, but also because the Political Constitution, in its Article 34, contemplates a general prohibition against applying laws retroactively to the detriment of any person. The Public Prosecutor's Office asserts that if the statute of limitations had not taken effect by the time the aforementioned law came into force, it is plausible to apply its effects to procedural acts carried out previously, since “…they did not retroactively nullify the interruptive acts that occurred previously, as the accused [Nombre01 033] erroneously interprets—but rather, the reduction of the outstanding balances was nullified, which were extended from that moment and up to the full term, according to the abstract penalty of each crime ...” (F. 176,933 recto, volume XLIV). The undersigned respect but do not share these arguments. It can be expressed in different ways and denied that Article 34 of the Political Constitution is being violated; however, what is ultimately intended is that the effects of Article 62, in force as of October 29, 2004, affect an interruptive and reducing procedural act of the statute of limitations period that took place before that date, namely, on October 15, 2004, stripping all value from the regulation under which that act was produced (namely, Article 33, first paragraph of the Code of Criminal Procedure). Moreover, note that it cannot be deduced from Law No. 8422 that the legislator contemplated applying the statute of limitations rules contained in numeral 62 in a manner different from that which applies to any procedural rule (that is, from its entry into force and prospectively). Finally, it is important to note that in resolution No. 1847-2004 cited by the Public Prosecutor's Office as the basis for its position (f. 176,934 recto, second paragraph), the Third Chamber adopted the thesis opposite to that which this procedural party exposes, namely, that Law No. 8422 is applicable to procedural acts carried out as of October 29, 2004, which is why only in relation to the accused who were questioned after that date ([Nombre01 018] and [Nombre01 006]) did it argue that, once the interruption took effect, the statute of limitations period ran in full under the terms indicated in Article 62 subsection a) of the mentioned law. In summary, and given that after the hypothetical exclusion process that has been carried out, the remaining evidence does not allow it to be deemed proven that [Nombre01 033] acted as an instigator in the crime of aggravated corruption in its modality of improper bribery committed by [Nombre02 064], and having ruled out the application of other residual criminal offenses to the proven facts that remain intact after said exclusion, the judgment is annulled insofar as it declared [Nombre01 033] an instigator of the crime of aggravated corruption by improper bribery committed by [Nombre01 064] and, in application of the principle in dubio pro reo and for procedural economy, he is acquitted of all penalty and responsibility for that criminal activity. As unnecessary, any ruling on the other claims made by him personally, as well as on the appeals filed by his defense attorney, Licenciado Rafael Gairaud Salazar, is omitted.

• 6)[Nombre02 041] and [Nombre02 028]: The tribunal deemed it proven that [Nombre01 041] and [Nombre01 028] committed three crimes of penalty of the corruptor in relation to the crimes of aggravated corruption by improper bribery attributed to [Nombre01 022], [Nombre01 001], and [Nombre01 064]. Additionally, a crime of penalty of the corruptor in relation to the crime of aggravated corruption by improper bribery committed by [Nombre01 068] was attributed to [Nombre01 041]. For the sake of order, the crimes deemed committed by both accused will be analyzed first, followed by that which was attributed solely to [Nombre01 041]. 6.a) Crimes of penalty of the corruptor in relation to [Nombre 001], [Nombre01 022], and [Nombre 064]: It was deemed proven that in December 2000, [Nombre01 078] and [Nombre 041] promised [Nombre 064] a gift in exchange for the latter carrying out the necessary actions as a director of I.C.E. to promote the migration from TDMA to GSM technology, prevent the bidding process for the 400,000 lines from being aborted, and finally, vote in favor of awarding said tender to the company [Nombre 091] (proven fact number 87, folio 15,438 recto, volume XXXII). Regarding [Nombre 022], it was deemed accredited that between the end of 2000 and the beginning of 2001, the accused [Nombre01 041] and [Nombre01 078] asked him to carry out the necessary actions within the scope of his duties as a Director of I.C.E. in support of the interests of [Nombre02 091], primarily, to promote the migration from TDMA to GSM technology, promote purchases through bidding processes and prevent them from being aborted, and once the contracting process for the 400,000 lines was authorized, they asked him to vote in favor of awarding that tender to the company [Nombre 091], it being the case that in exchange for all the foregoing, they promised him the delivery of a gift, a promise that was accepted by [Nombre01 022] (fact number 117, f. 15,451 recto). As for [Nombre01 001], the a quo deemed it proven that in the period between the end of 2000 and the beginning of 2001, the defendants [Nombre01 041] and [Nombre01 078] asked him to carry out the necessary actions within the scope of his duties as advisor to the Executive Presidency of I.C.E. and the person in charge of executing the project for the 400,000 lines, to make said contracting effective, favoring [Nombre01 091], and that in exchange for the foregoing, they promised him the delivery of a gift, a promise that was accepted by the public official. Likewise, it was agreed that the delivery of the money would be conditional on the effective awarding of the offer that [Nombre01 091] would submit to I.C.E. (fact No. 131, f. 15,455 recto). With respect to [Nombre01 028], in the judgment on the merits he was considered a co-perpetrator of the aforementioned facts, understanding that in the division of functions agreed upon with [Nombre01 041] for carrying out the crimes, he had the task of receiving the funds from [Nombre01 060] and transferring them to the corrupt public officials (proven fact number 56, f. 15,431 recto). This chamber will not reiterate the arguments set forth by the a quo to deem it proven that [Nombre01 041], in collusion with other persons, made a promise of economic retribution to [Nombre02 001], [Nombre01 022], and [Nombre01 064] prior to the awarding of the contract for the 400,000 lines, nor the reasoning that leads these appellate judges to conclude that the accreditation of that fact is unsustainable, since an extensive exposition on this has been made previously and to which the parties must refer. It suffices to stress as a starting point that, having hypothetically excluded the testimony of [Nombre02 064], it is impossible to affirm with certainty that extreme. While it can be assured that [Nombre01 041] and [Nombre01 028], through [Nombre01 058], delivered significant sums of money to the cited persons, it can only be maintained with a degree of probability (insufficient to support a conviction) that those sums were intended to fulfill a prior promise, to the point that other equally plausible hypotheses cannot be ruled out either, for example, that they were retributions for a performed act (logically, without a prior promise), or that it was the public officials who requested their payment. Now, ruling out the promise of economic retribution not only prevents applying the criminal offense of aggravated corruption by improper bribery in the case of the three mentioned public officials, but also prevents applying the penalty of the corruptor contemplated in Article 345 of the Criminal Code in force at the time the investigated events occurred. This numeral stated: “The penalties established in the five preceding articles are applicable to whoever gives or allows the public official a gift or undue advantage.” As can be deduced from its mere reading, this is a blank criminal norm that refers to other articles of the same Criminal Code to establish a subjective element additional to intent, which must characterize the carrying out of the prohibited conduct, as well as the penalty to be imposed. The numeral prohibits giving or allowing a gift or undue advantage to a public official for any of the purposes indicated in the five articles that precede it. That is, regardless of the decision the public official makes regarding the corruptor's proposition, to penalize the latter it is indispensable that his conduct be directed at seeking certain specific purposes that have been contemplated by the legislator in the provisions preceding the mentioned numeral 345. The complementary criminal offense, as well as the sanction to be imposed, therefore depend on the purpose for which the gift is given or allowed. For example, if the corruptor gave it so that the public official would perform an act contrary to his duties, or to fail to do or to delay an act proper to his functions, the corresponding penalty will be that of active bribery, which ranges from two to six years of imprisonment and disqualification from holding public office and employment from ten to fifteen years. If the corruptor gave it for an act performed or omitted by the public official in that capacity, without any prior promise having intervened, the penalty to be imposed will be the one previously stated reduced by one third, as provided for by the norm that contemplates the crime of acceptance of gifts for a performed act. In the same way, if giving or allowing the economic retribution or undue advantage under the terms described in the crimes of active or passive bribery has the purpose of granting public positions, retirements, pensions, or the conclusion of contracts in which the administration to which the official belongs is interested, the penalty for the corruptor will range from 1 to 5 years if the facts are those described in passive bribery and from 3 to 10 years in the case of active bribery. In summary, to sanction the corruptor, it is indispensable to have demonstrated that he gave or allowed the gift for some of the purposes contemplated in the five articles preceding numeral 345 of the Criminal Code, which in this case is not plausible for the reasons set forth in previous sections and which can be reduced, at the risk of incurring in an excessive simplification of things, to the fact that without the testimony of [Nombre01 064], from the analysis of the remaining evidence it is impossible to derive a judgment of certainty and not of probability regarding the existence of the promise of a gift, its content, and the purposes it pursued. Once the illicit evidence has been hypothetically suppressed, it cannot be assured that [Nombre01 041], in collusion with [Nombre01 028], promised (conduct that, with an extremely questionable interpretation but endorsed by the Third Chamber, the a quo considered encompassed by the verb 'to give') an economic advantage to several public officials, so that they would perform acts proper to their functions with the purpose of ensuring that [Nombre01 091] would be favored by the contract for the 400,000 lines, a purpose that is precisely the one contemplated in the crime of aggravated corruption, which is one of the five articles that precede that of the penalty of the corruptor and which, in turn, expressly refers to the crime of improper bribery, in what is relevant here. Having excluded the promise of retribution, what remains intact is that [Nombre01 041], by common agreement with [Nombre 028], transferred monies from [Nombre01 060] to [Nombre 001], [Nombre01 022], and [Nombre01 064]; however, this alone does not constitute any crime. In the first place, it is not the penalty of the corruptor because, as already explained, it is impossible to establish with certainty what the reason for the payments was.

Even admitting hypothetically that the money delivered had some relation to the mobile telephony sphere, or even to the contract for the 400,000 lines, the evidence examined only yields a judgment of probability that it was intended to fulfill a promise made before the award of that contract, in exchange for public officials performing certain actions inherent to their office that favored [Nombre01 091], it being equally plausible to consider other hypotheses often mentioned, for example, that the funds were delivered as remuneration for an act completed without a prior promise, or that it was the officials who solicited or demanded their payment, hypotheses that, in any case, were not charged by the Public Prosecutor's Office. In sum, from the evidence that has been lawfully obtained and incorporated into the debate, it is impossible to consider the promise of a gift that was charged as proven (that is, a promise in exchange for public officials performing future actions, inherent to their office, to favor [Nombre01 091] in obtaining the contract for the 400,000 lines) and, to that extent, the conviction imposed on [Nombre01 041] and [Nombre02 028] for the crime of penalty of the corruptor for aggravated corruption by improper bribery is unsustainable. It should be added that this result would not vary even if the issue of the promise were set aside and emphasis were placed on the material delivery of the gifts, basically for two reasons, namely, i) because promising an economic reward to certain public officials (and not delivering the gift to them after the award) is the only conduct that, in the context of the charged and proven facts, can be subsumed under the crime of penalty of the corruptor for aggravated corruption by improper bribery and, ii) because the penalty of the corruptor is atypical in the case of illicit enrichment. Both arguments will be elaborated on below. Regarding the first, according to the legal text in force at the time the investigated facts occurred, in the crime of penalty of the corruptor, the typical action consisted of giving or allowing undue gifts or advantages to a public official with the purposes described in the "five preceding crimes," namely: i) corruption of judges; ii) offering or granting of a gift or reward (repealed in 2008); iii) acceptance of gifts for an act completed; iv) aggravated corruption (criminal type that was applied by the trial court and whose typical description is integrated, by express provision of the legislator, with the criminal types of proper and improper bribery, as applicable); and finally, v) proper bribery. As observed, whether one speaks of the promise of a gift (as the trial court did when considering that the verb promise is encompassed by the verb give), or of the material delivery of the reward (now, in full consonance with the verb give contemplated in Art. 345 C.P.), the penalty of the corruptor requires that the prohibited conduct be directed by one of the purposes described in the aforementioned criminal types and, in this case, it was neither charged nor considered proven that the funds were delivered before the award to the public officials in exchange for these officials performing acts (future ones) inherent to their functions that were favorable to [Nombre01 091] in the matter of the 400,000 lines (this is the purpose). What was indicated was that [Nombre01 041] and [Nombre01 028] gave the gift after the award, to fulfill a prior promise that pursued the purposes already mentioned. In other words, it is the promise of a gift and not its material delivery that is the conduct which complements the crime of penalty of the corruptor with the criminal type of aggravated corruption and improper bribery and, therefore, the application of the aforementioned Article 345 can only be considered in relation to this. In line with the above, if that promise of a gift contemplated in the accusation cannot be considered proven, the crime cannot be understood as having been configured, this despite the fact that a transfer of funds to some officials has been accredited. Regarding the second argument, it suffices to point out that the facts that remain unscathed after hypothetically suppressing the reference to the prior promise are atypical, even if one were to start from the basis that [Nombre01 041] and [Nombre01 028] presented the economic advantages to [Nombre02 064], [Nombre01 001], and [Nombre01 022] in consideration of their office and during the exercise of their position, since the penalty of the corruptor is only provided for in relation to the five articles preceding that crime and illicit enrichment was not, at the date of the events, nor is it now, part of that group. The matter is so clear that the legislator placed illicit enrichment after the crime of penalty of the corruptor, whereby the latter, by alluding to the "preceding articles," does not encompass it. In sum, having ruled out, for being impossible to prove without the illicit evidence, that [Nombre01 041], in common agreement with [Nombre01 028], extended promises of gifts to [Nombre02 064], [Nombre02 022], and [Nombre01 001] so that they would perform acts inherent to their functions, directed at ensuring that [Nombre01 091] would obtain the contract for the 400,000 lines, and given that, furthermore, after that exercise of hypothetical suppression that has been carried out, the facts that remain unscathed regarding [Nombre01 041] and [Nombre01 028] (which, in essence, reduce to the material delivery of certain sums to the public officials) do not satisfy the requirements of any criminal type, the judgment is annulled insofar as it declared both defendants co-perpetrators responsible for three crimes of penalty of the corruptor for aggravated corruption in the modality of improper bribery in material concurrence, in relation to [Nombre01 022], [Nombre01 001], and [Nombre01 064] and, instead, for procedural economy and in application of the principle in dubio pro reo, they are acquitted of all penalty and responsibility for the aforementioned crimes.

6.b) Crime of penalty of the corruptor attributed to [Nombre01 041] in relation to [Nombre 068]: The trial court also convicted [Nombre02 041] as the responsible perpetrator of a crime of penalty of the corruptor for aggravated corruption in the modality of improper bribery, this one committed by [Nombre01 068]. The following will explain why, after the declaration of illegality of the prosecutorial discretion criterion granted to [Nombre01 064], it is impossible to consider that crime proven. The first thing to mention is that, according to what the court set out in its majority vote, the promise of a gift to [Nombre01 068] was formulated by [Nombre01 105], in collusion with [Nombre01 046]. For the a quo, [Nombre01 041]'s relationship to this fact results from his condition as head of [Nombre01 091] in the country and from having acted with [Nombre01 105] (representative of [Nombre01 114].) in the same way he did with [Nombre01 028] (representative of [Nombre01 058].), using those corporations to sign consultancy contracts that did not correspond to reality, with the purpose of bringing in the economic resources of [Nombre01 060] that were later distributed among the public officials. From folios 15,767 and following of Volume XXXII, the a quo concluded that a promise of a gift was extended to [Nombre01 068] (for which responsibility must be attributed to [Nombre01 041]), by virtue of the following: i) Evidence item No. 747 determines that [Nombre01 068] was prosecuted for the crime of aggravated corruption in the modality of improper bribery, availing himself of an abbreviated procedure through which he was convicted (Judgment No. 586-07 of 2:50 p.m. on October 16, 2007). The gift, as stated in that resolution, was promised through [Nombre02 114]., whose representative, [Nombre01 105], also submitted to an abbreviated procedure (Judgment No. 260-09 of 2:15 p.m. on July 21, 2001). According to the court, these judgments have been considered “…in relation to those who submitted to such procedures and solely with the type of crime for which they were convicted, the sanction, parties, and eventual reparations or other merely referential data, without in any case assessing the proven facts and other content ...” (F. 15,768 front). ii) The ideation of the criminal plan responded to various antecedents, one of special importance, namely, that [Nombre01 091] was not considered by ICE in mobile telephony matters, which led [Nombre01 041] and [Nombre 078] to deem it necessary to channel funds coming from [Nombre01 060] to grant gifts to public officials; iii) from the documentary evidence (namely, official letter No. 813 of January 23, 2001, from the Contraloría General de la República and the minutes of Sessions No. 5271 and 5277 of the ICE Board of Directors), it is extracted that on January 23, 2001, the Contraloría General de la República authorized the abbreviated competitive bidding procedure for the contracting of the 400,000 GSM technology cellular lines. Despite this, the Board of Directors unanimously authorized direct contracting No. 108792 to expand the GSM mobile network to [Nombre01 091], which satisfied its commercial interests and incidentally furthered its incursion into GSM technology. However, in the following session, [Nombre01 068] requested that this decision be revoked, which did not prosper. This led [Nombre01 041] and [Nombre01 078] to glimpse the need to recruit this council member, as they did with [Nombre01 064], [Nombre01 191], and [Nombre02 001] (f. 15,768 and 15,769 front); iv) to promise the gift to [Nombre 068], [Nombre01 105] was used. The corporation [Nombre02 114]. belongs to him, which originally represented [Nombre 060] in the country. Once [Nombre01 091] was established, [Nombre01 114]. remained within its facilities and offered them assistance in the technical area (f. 15,769 front); v) due to the good relationship that existed with [Nombre01 105] (and which several witnesses attest to), and given that [Nombre01 114]. appeared then as a consultant to [Nombre01 292], a company that in turn represented [Nombre02 060], simulated consultancy contracts were signed, to generate the funds of [Nombre01 060] that were later delivered to public officials (f. 15,770 to 15,772 front); vi) there is no direct proof of [Nombre01 105]'s request to [Nombre01 046] to facilitate the meeting with [Nombre02 068]; however, [Nombre01 046] had a prior bond with [Nombre01 105] and had a relationship of trust with [Nombre01 068]. Likewise, [Nombre01 046] carried out lobbying tasks to approach public officials and, before the investigated facts, had done such tasks for [Nombre01 091]. He also acted as an intermediary in the payment of the gift made to [Nombre01 068], with [Nombre01 046] also receiving a large sum from [Nombre01 114]. for bringing [Nombre01 105] and [Nombre02 068] together and then transferring that gift to [Nombre01 068], whereby it “…reflects his knowledge that it was the gift paid to [Nombre01 068] for his positive vote for [Nombre01 091] on the 400,000 cellular lines and because [Nombre01 068] and [Nombre01 105] were sentenced for convergent crimes.” (F. 15,773 front). From this point on, the judgment makes a more exhaustive examination of the indicia outlined to demonstrate the promise of a gift, specifically, the link between [Nombre01 046], [Nombre01 105], [Nombre01 114]., [Nombre 060], and [Nombre01 091] Costa Rica (f. 15,773 to 15,775 front); the lobbying and canvassing tasks that [Nombre02 046] had carried out in the past before public officials for the benefit of [Nombre01 091] (f. 15,775 to 15,777 front); the link between [Nombre01 068] and [Nombre01 046] (f. 15,777 to 15,781 front), a bond that also arose before the facts of interest here and that is made evident by the handling of the illicit gains and the meetings between [Nombre01 105] and [Nombre01 068] (f. 15,781 to 15,783 front), encounters that according to [Nombre01 193] took place on at least two occasions, in Coronado, the place where the company [Nombre 085]. is located, of which [Nombre01 068] is president and judicial and extrajudicial representative. Furthermore, the resolution points out, although there is no proof that [Nombre01 046] was present at those meetings, it is clear that it was he who put [Nombre01 105] in contact with [Nombre01 068] (f. 15,781 to 15,783 front). The ruling also explains how [Nombre02 068], as a member of the ICE board of directors, intervened in the vote of August 28, 2001, where the award was decided (f. 15,783 to 15,784 front). For the court, a promise of a gift was extended to [Nombre01 068] so that he would vote in favor of this award, and on this topic, it refers to what was set out in relation to the plan devised by [Nombre01 041] and [Nombre01 078], to propose consultancy contracts in favor of two companies that had carried out commercial activities with [Nombre01 060], one of them being [Nombre01 114]., whose manager is [Nombre01 105]. Those contracts were simulated, the company became a creditor of [Nombre01 060], and later, with the resources received, the gift promised to [Nombre01 068] was paid. The trial court adds that while funds were transferred to [Nombre01 022] and [Nombre01 064] through [Nombre02 058]. ([Nombre 028]), they were delivered to [Nombre 068] through [Nombre01 114]. ([Nombre 105]), there being a single purpose and a common trunk ([Nombre01 041] and [Nombre01 078]). Furthermore, the sums paid are similar. For the judges who signed the majority vote, the fact that [Nombre01 068] was a director of ICE and that [Nombre01 046] facilitated the meeting between him and [Nombre01 105] before the vote in which the 400,000 lines were awarded allows the conclusion that the gift was offered at that moment in exchange for his affirmative vote. And it is that [Nombre01 046] moves in that environment and knows the directors, and this is also evidenced by his approach to [Nombre01 064], to ask for his help with the amounts that [Nombre01 091] owed him. In the same sense, the transfer of money via [Nombre01 060] - [Nombre01 114] - [Nombre01 046] - [Nombre01 068], demonstrates that the act that the latter executed was to receive a payment for an act inherent to his functions and that, prior to this act, the promise of reward was made to him. Finally, it was affirmed that [Nombre01 046] had knowledge that the money offered and delivered through his agency to [Nombre01 068] was for having cast his favorable vote for the award of the 400,000 lines. As support for this conclusion, the court alludes to how atypical the contract for the 400,000 lines was, not only due to its amount but also due to the enormous demand that existed at the time. From the testimonial evidence (statements by [Nombre01 128], [Nombre01 195], and [Nombre01 095]), it is extracted that it was a momentous project in the history of ICE. This topic was known to [Nombre 046], not only because he moves in the telecommunications sphere but also because of his relationship with [Nombre01 105]. Furthermore, the topic was widely publicized. At this point, the court also highlights the statement of [Nombre02 064]. He indicated that in the meeting in [Nombre01 094], [Nombre 041] and [Nombre02 078] spoke to him of the importance for [Nombre01 091] that ICE migrate to open telephony schemes, that it use bidding as a method of technology acquisition, and that he vote in favor of the company, this also because, according to what [Nombre01 041] and [Nombre01 078] told him, on a recent date, [Nombre01 046] had told them that he could influence that decision in a way detrimental to the interests of [Nombre01 091], and had even announced that he would have the backing of the Executive Branch, a statement that for the court demonstrates [Nombre01 046]'s knowledge of what [Nombre01 091]'s priorities were (migration and bidding), as well as of the procedure defined at the beginning of 2001 by the Contraloría General de la República. It was also considered that due to the closeness between the two, [Nombre01 046] knew of [Nombre01 068]'s position within ICE. That closeness was also evidenced by the way of receiving and disposing of the gift (specifically, [Nombre01 068] asked [Nombre01 046] for a bank account to receive part of the payments). Lastly, the reference was reiterated to the condemnatory judgments handed down against [Nombre01 068] and [Nombre01 105] and the admissions of charges made by both regarding the facts (f. 15,785 to 15,789 front). vii) Likewise, the a quo examined the consultancy contracts signed by [Nombre02 114]. with [Nombre01 091], the funds delivered to [Nombre01 068] through this means, as well as the gains obtained by [Nombre01 046] and [Nombre01 105] (f. 15,789 to 15,828 front). Based on all the foregoing, it convicted [Nombre01 046] for the crime of penalty of the corruptor for aggravated corruption in its modality of improper bribery in relation to the facts charged to [Nombre01 068] (f. 15,833 front and following). Now, regarding [Nombre01 041], what the appealed judgment affirmed is that this defendant acted in common agreement with [Nombre01 105] and [Nombre01 046] to manage to approach [Nombre01 068] and make the remunerative offer. Furthermore, that [Nombre01 041] was the common trunk between the distribution of gifts via [Nombre01 058]. and via [Nombre02 114]., so that he knew that the consultancy contracts signed by [Nombre01 105] were as simulated as those of [Nombre01 058]. and that this mechanism is what had been implemented to endow with resources the illicit arm that would allow the payment of funds to [Nombre01 068], counting on [Nombre01 046]'s contribution regarding the indication of the accounts and other data that had to be coordinated for each delivery (f. 15,726 front, Volume XXXII). Having analyzed the foregoing reasoning, this chamber considers that, after hypothetically excluding the “testimony” of [Nombre01 064], it is not possible to demonstrate with certainty that [Nombre02 041] was a co-perpetrator of a remunerative promise extended to [Nombre01 068] by [Nombre01 105]. As has been pointed out, this court does not question [Nombre01 091]'s situation in the mobile telephony sphere, the delivery to public officials of significant sums (in similar amounts, furthermore) that was made after the contract for the 400,000 GSM lines was awarded, the relationship of trust between [Nombre01 046] and the heads of [Nombre01 091], and even the mechanism through which the funds that would later be distributed among the public officials entered (it is understood, consultancy contracts signed with [Nombre01 058]. and [Nombre01 114].). However, it cannot be assured with certainty that the sums that [Nombre01 068] received were to fulfill a promise -prior to the award- that [Nombre01 105] extended to him in common agreement with [Nombre01 041]. Although it can be taken as true that this last defendant distributed funds from [Nombre01 060] among various public officials, regarding the promise and the purposes pursued with it, the fundamental evidence is [Nombre01 064]'s statement, to the point that if this is hypothetically excluded, it is not plausible to discard other hypotheses, for example, that they were economic rewards accepted for an act completed without a prior promise, that the public officials themselves induced that payment, or that while a promise existed, it had a different content. Note also that it was [Nombre01 064] who, in the debate, spoke of the concern of [Nombre01 041] and [Nombre01 078] about what [Nombre02 046] in turn had told them, in the sense that regarding the granting of the contract for the 400,000 lines, he could influence and harm [Nombre01 091], an affirmation that the a quo used to understand the interest of the corruptors in approaching the ICE directors before that contract was awarded. Even the role that the majority vote assigned to [Nombre01 046] in this scheme was established in large part thanks to what was said by [Nombre01 064], since -according to him- [Nombre01 046] came to him so that he would help him collect funds owed to him by [Nombre01 091] for his services. So clear is the weight that [Nombre02 064]'s testimony carries, that in this section of the judgment, the parallelism between his situation and that of [Nombre01 068] was appealed to, affirming that they are two of the directors who received money from [Nombre01 091] and who received promises of gifts, a conclusion reached because the first one said so and because [Nombre01 068] was sentenced for it. However, after hypothetically suppressing the statement of the cooperating defendant and bearing in mind that the condemnatory judgments of [Nombre01 068] and [Nombre01 105] were handed down within the framework of an abbreviated procedure, where the acceptance of charges has a formal character, the possibility of establishing the promise of a gift with certainty and, especially, of involving [Nombre01 041] with that promise, vanishes. Again, this chamber has no doubt that [Nombre01 041] paid a series of public officials using two corporations ([Nombre01 114]. and [Nombre 058].). One can even suspect that those payments had some relation to [Nombre02 091]'s incursion into the mobile telephony market; however, it is not possible to assure that those payments were made to fulfill promises of gifts formulated before the award of the contract for the 400,000 lines, in exchange for it being granted to [Nombre01 091], especially when it is also possible to consider other alternatives, e.g., that they were economic rewards given for completed acts, without a prior promise (as [Nombre01 064] had said), or that it was the public officials who demanded the payment, as [Nombre02 041] himself indicated at some point (cf. in this regard, statement of [Nombre01 116], analyzed in previous sections). To that extent and in application of the principle in dubio pro reo, the judgment is annulled insofar as it convicted [Nombre01 041] for a crime of penalty of the corruptor for aggravated corruption in its modality of improper bribery, in relation to the facts charged to [Nombre01 068] and, instead, he is acquitted of all penalty and responsibility for the cited crime. By reason of what has been set out in this considerando and because it is unnecessary, a pronouncement is omitted regarding the other claims contained in the appeals formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, as well as those raised by attorney Mario Navarro Quirós, private defense counsel for [Nombre02 028], with the exception of the third ground that he called “Erroneous and inadequate reasoning. Violation of due process and the right of defense due to erroneous application of Article 110 of the Penal Code,” since this, being related to the confiscation of some assets belonging to legal entities linked to [Nombre01 028], demands a more in-depth analysis.

With respect to that ground, this office will rule on it later.

**VII.-** *Cassation* appeal **filed by licensed attorney Wilson Flores Fallas and** *appeal of the sentence* **filed by licensed attorney Nazira Merayo Arias, defense counsel for [Name 006].** In a brief visible in volume XXXVI, from folios 17,102 to 17,149 front, licensed attorney Wilson Flores Fallas, public defender of [Name01 006], filed a cassation appeal against sentence No. 167-2011 cited above, which was *reiterated* by licensed attorney Nazira Merayo Arias when filing the appeal of the sentence. In fact, in volume XXXIX, starting at folio 17,292 front, this professional explained that because licensed attorney Flores Fallas was occupying positions in the judiciary, she assumed the defense of the defendant, indicating to the latter that, after the conversion of the cassation appeal into an appeal of the sentence, the grounds and arguments set forth in the first would be maintained. Having verified that this was effectively so, since both briefs present the same content and because the first was prepared by licensed attorney Flores Fallas, this chamber will refer only to his. <span style="text-decoration:underline">Content of the appeal</span>. In an initial exposition, licensed attorney Flores Fallas stated that the act is time-barred; that the substantive law was erroneously applied by describing three independent crimes without describing the elements (objective and subjective) of the criminal type of illicit enrichment; that the principles of correlation between accusation and sentence, of *in dubio pro reo*, and of legality were violated in the weighing of evidence; and that the principle of derivation was breached. <span style="font-style:italic; text-decoration:underline">Given the existing relationship, the claim that the appellant calls “Single ground of cassation on the merits” and the one called “Third ground as to form” will be resolved jointly.</span> **Single ground of cassation on the merits. Erroneous application of the substantive law, because the acts described in the accusation corresponding to acts 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.** According to the public defender, the sentence violates the principle of correlation between accusation and sentence. After citing Articles 363, subsection b) and 369, subsection h), both of the Code of Criminal Procedure, licensed attorney Wilson Flores states that the accused acts, identified with numbers 199 to 211, present problems regarding the typical description of the crime of illicit enrichment. In act 201 of the accusation, it is established: “*… 201) The indictee [Name01 041] and the investigated person [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006], in consideration of his office, a benefit consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his public official position, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment for him*”. From the foregoing, it is extracted that [Name01 006] was charged with a crime of illicit enrichment; however, subsequent to that accused act, it is not described to which act or to which circumstances it refers, an aspect that is essential, since the Public Prosecutor’s Office opted for the hypothesis of “*acceptance of the benefit presented*”, which means that the presentation of each benefit and its correlative and simultaneous acceptance constitutes an independent typical conduct. In the case of a plurality of actions such as that contained in the accusation, in acts 203, 208, and 210, there would then be a real concurrence of crimes, so for each crime all the prerequisites established in the criminal type would have to be contemplated. For the defender, according to acts 203, 208, and 210, there were three independent presentations of benefits, so it was necessary to describe the elements of the criminal type of Article 346, subsection 3) of the Penal Code in each case, in order to have a clear, precise, and circumstantial accusation. The challenger says that: “… *However, as I anticipated, the Public Prosecutor’s Office does not describe that the presentation of benefits was in consideration of the office, so the description of those independently accused acts does not describe essential elements such as the objective elements, among them the condition of public official, in function of the position, since the benefit by itself as a description in acts 203, 208, and 210, is a common element to several crimes such as active bribery proper, improper active bribery, the acceptance of benefits for a completed act, penalty of the corruptor (345 bis), illicit enrichment, with the absence in the description of these three independent facts denoting the absence of essential elements of the criminal type of section 346, subsection 3…*” (F. 17,104 and 17,105 front). Subsequently, licensed attorney Flores Fallas adds: “… *In act 203, it is charged: “Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a benefit consisting of investment certificates Nos. 22400200037170, Identificacion06 Identificacion07, and Identificacion08, 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 act 208, it is charged: “Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name01 041] and [Name01 078] presented to the accused to the accused [Name01 006] a benefit consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica Nombre08° Identificacion09 Identificacion10 Identificacion11 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 act 210, it is charged: “Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Name01 041] and [Name01 078], presented to the accused to the accused [Name 006] a third benefit consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica Nombre08° Identificacion12 Identificacion13 Identificacion14, and Identificacion15, 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 [Name01 006] and he disposed of it in the following manner:..”* (The reproduction is literal, folios 17,105 and 17,106 front). For the defender of [Name01 006], the preceding description does not contemplate the elements of the objective and subjective type of illicit enrichment and, to that extent, what is described is atypical conduct: “… *For example, the absence of the subjective element that motivates the presentation of the benefit and that is what moves the subject who presents it, is not described, being an essential element that must be known by the active subject of the crime, since in the criminal figure of illicit enrichment, its subjective criminality is intentional*…”. (F. 17,106 front). The harm caused, states the appellant, consists in that he was convicted for the crime of illicit enrichment even though the accusation does not contemplate the essential elements of the criminal type. If the Public Prosecutor’s Office charged a material concurrence and described three benefits, but did not describe the elements of the criminal type of illicit enrichment, the tribunal could not consider the behavior as criminal. **Third ground as to form. Injury to the principle of correlation between accusation and sentence. The Tribunal modifies the actions charged against [Name01 006] in the formal accusation** (*sic*) **by the Public Prosecutor’s Office and takes as proven facts actions that were not charged, since in the former, it does not integrate elements of the type and the new account that the tribunal makes integrates the elements of the type** ( *sic*, f. 17,112, volume XXXVI). In this ground, which is identified as the third as to form (in reality, it is the second as to form), based on Articles 363, subsection b) and 369, subsection h) of the C.P.P., licensed attorney Flores Fallas states that: “… *The appealed sentence incurs a violation of the principle of correlation between accusation and sentence, in accordance with Articles 363, subsection b and 369, subsection h, both of the Code of Criminal Procedure, an aspect punishable by nullity. The facts described in the accusation ranging from fact number 199 to fact 211 present problems with respect to the description of the criminal types charged, namely, 3 crimes of illicit enrichment. Nombre02 in the fact numbered as 201 of the accusation, it is described: “201) The indictee [Name01 041] and the investigated person [Name01 078], as representatives of the company [Name02 091], presented to the accused [Name01 006], in consideration of his office, a benefit consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his public official position, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment for him.” … In fact 203, it is charged: “Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name01 078] presented to the accused [Name01 006] a benefit consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion07, and Identificacion08, 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 ($10.00), 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, [Name01 041] and [Name01 078] presented to the accused to the accused [Name01 006] a benefit consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 Identificacion10 Identificacion11 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 corruptors [Name01 041] and [Name01 078], presented to the accused to the accused [Name01 006] a third benefit consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 Identificacion13 Identificacion14, and Identificacion15, 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 [Name01 006] and he disposed of it in the following manner:” From the foregoing, it is obtained that Mr. [Name01 006] is accused of a crime of illicit enrichment; however, after this accused fact where the elements of the criminal type of illicit enrichment are described in relation to a crime of illicit enrichment corresponding to fact 201 of the accusation; nonetheless, the Public Prosecutor’s Office describes in facts 203, 208, and 210 three presentations of independent benefit, so it was necessary or fundamental to meet the requirements of a clear, precise, and circumstantial accusation, to describe the elements of the criminal type of illicit enrichment of Article 346, subsection 3 of the Penal Code. However, as I anticipated, the Public Prosecutor’s Office, by NOT describing that the presentations of benefits were in consideration of the office, means that the description of those independently accused facts does not describe essential elements such as the objective elements, among them the condition of public official, in function of the position; because the benefit by itself as a description in facts 203, 208, and 210, is an element common to several crimes such as active bribery proper, improper active bribery, the acceptance of benefits for a completed act, penalty of the corruptor (345 bis), illicit enrichment; with the absence in the description of essential elements of the criminal type of section 346, subsection 3, being the case of three independent facts, leading us to point out that we are in the presence of three accused behaviors that are atypical. It is fundamental to consider, as an essential aspect, that the Public Prosecutor’s Office opts for the hypothesis of the “acceptance of the benefit presented”, which means that by the presentation of each benefit and the correlative and simultaneous acceptance of the same, it constitutes an independent typical conduct, each time it occurs, and in case of plurality as described in the accusation, facts 203, 208, and 210 necessarily generate a real concurrence of crimes, and therefore, in each case, all the prerequisites established in the criminal type must be met. Therefore, by having the accusation chosen the formula “acceptance of the benefit presented”, not only does it constitute a fact independent of the previous one, but it also requires the requirements of criminality. However, the Tribunal takes as proven facts: “190) The indictee [Name01 041] and the investigated person [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006], in consideration of his office, a benefit consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his public official position, specifically as Deputy Chief of the Switching Department Directorate of the I.Nombre72., a situation that generated illicit enrichment for him. Said benefit was paid in three installments… 191) It was Nombre02 as the indictee [Name01 041] and the investigated person [Name01 078] and following the dynamic of distribution of the money deposited in the checking account of [Name02 058]. Nombre68° [Value 012] in the Cuscatlán International Bank coming from [Name02 060], ordered [Name02 028] the purchase of various certificates for the delivery of the following benefits: 192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a first delivery of the benefit consisting of the investment certificates Nombre68°s Identificacion16 Identificacion06 Identificacion17 Identificacion07, and Identificacion08, 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 the dissenting vote, which highlights this situation denounced in the conclusions by this representation, stating: “In the case of [Name01 006], as already indicated, the Accusation starts from the hypothesis that three presentations of benefit and three correlative acceptances or receipts of the benefit presented were made; however, by starting from the assumption that they are independent crimes, the Public Prosecutor’s Office should, in each case, have made a description of all the factual circumstances that fill the criminal type of illicit enrichment. In other words, each time reference is made to a presentation of a benefit and the acceptance of it by [Name01 006], it should, at a minimum, have been pointed out that the presentation of the benefit was made in consideration of the office of [Name01 006] as an official of the Instituto Costarricense de Electricidad, and that, [Name01 006], knowing the circumstance that motivated the presentation of the benefit, accepted it while he was in the exercise of the position. The foregoing was not done, as can be inferred from the drafting of the facts of the accusation numbers 203, 204, 208, 209, and 210. In fact 203, it is said that after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name01 078] presented to the accused [Name01 006] a benefit, consisting of five certificates of $10,000 dollars each, a benefit that was accepted by the cited co-defendant (fact 204). In fact 208, with the same wording, the presentation of three certificates to [Name01 006] for a total of $20,000.00 is described, between July 2, 2002, and August 5, 2002, a benefit that was accepted by said accused. Fact 210, with the same description, refers to the third benefit presented between December 17, 2002, and January 21, 2003, equally accepted by [Name02 006]. The description of facts contained in the accusation, in the manner referred to in the preceding paragraph, contain atypical conduct, because they do not point out essential elements to be so, in relation to the criminal type of illicit enrichment, such as the subjective element that motivates the presentation of the benefit and that is what moves the subject who presents it, to do so, an element that also must be known by the active subject of the crime, since it is a criminal figure whose subjective criminality is intentional. The foregoing could have been corrected with a general fact stating that the typical elements that are missed were present on all occasions that benefits were presented to [Name01 006] and that he accepted them; however, this was also not done, because the only fact that refers to the subjective element is number 201. There, the following can be read: “201) The indictee [Name01 041] and the investigated person [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006], in consideration of his office, a benefit consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his public official position, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment for him.” (See dissenting opinion of co-judge Camacho Morales). Note how the Tribunal introduces in considering “III” proven facts number 190, that the benefit was made in three payments, by stating: “190) The indictee [Name01 041] and the investigated person [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006], in consideration of his office, a benefit consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his public official position, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment for him. Said benefit was paid in three installments… With this wording by the Trial Tribunal, we move from three independent actions, which do not describe a behavior adjusted to a criminal type, to one action that does describe the elements of the criminal type of illicit enrichment of Article 346, subsection 3 of the Penal Code. The same trial tribunal highlights when it explains in different considering clauses each benefit separately, that in reality they do not consider it to be one benefit but three benefits… In this way, the Trial Tribunal corrects the work of the Public Prosecutor’s Office, without the accusing body requesting it, and by granting an undue advantage, the sentencing tribunal compromises the constitutional principle of impartiality. Despite the fact that the accusation presented by the Public Prosecutor’s Office constitutes the factual limit to which the sentence can refer, the Trial Tribunal takes as demonstrated a different fact from the one described in the accusation, with this modification affecting the right of defense, because what good are the conclusions provided in the debate if the Tribunal drafts a typical fact different from the three independently accused facts. From reading the accusation, it is never said that Said benefit was paid in three installments, so how can the Tribunal arrange things to the detriment of the interests of the accused, and in this way ignore the constitutional jurisprudence that has repeatedly indicated that the modification of the accused facts by the Tribunal at the time of sentencing substantially affects the content of the principle of due process. Furthermore, it has been indicated repeatedly that the accused factual framework on which the trial is based cannot be varied, since there must be a correlation between accusation and sentence, given that such issues are part of the right of defense, since only by knowing the attributed facts can a defense be formulated, and if they are altered, it makes it impossible to effectively exercise that right. Based on the principle of correlation between accusation and sentence, it is intended that no variations to the factual framework that was charged occur in the sentence that affect or prevent the exercise of an adequate defense, which, as in the specific case, implies an essential modification in criminally relevant aspects of the conduct submitted to trial, where from three independent accused facts where the description of the typical elements of the crime of illicit enrichment are absent, the Tribunal makes a variation that affects the essential core of the accusation by adding Said benefit was paid in three installments. Hence, the comparison in the sentence between the accused facts and the proven facts allows us to deduce that the Tribunal incurred the defect pointed out, since the proven fact is different in essence from the accused fact, by the Tribunal integrating that Said benefit was paid in three installments. From the foregoing, it is obtained that the sentence broke the logical unity of the process by making in it a different description from the one accused, which differs from the one originally charged by the Public Prosecutor’s Office by not describing in any of the three independent facts of illicit enrichment the elements of the type, both the objective elements and the subjective ones; hence, it is, in my opinion, an infraction of one of the basic rules on which our criminal procedural law is founded, as has been clearly expressed by the Constitutional Chamber, especially in judgment number 1739-92. Likewise, the doctrine also agrees on the need for the accused facts to be the only basis for determining the conviction or acquittal of the accused…*” (F. 17,112 to 17,119 front, volume XXXVI. The transcription is literal). After citing resolution No. 00481-95, from the Constitutional Chamber, which deals with the issue of the correlation between accusation and sentence, the appellant considers that in the case of his client, the tribunal has varied the factual framework charged. In this, three independent facts of illicit enrichment were contemplated, without describing the essential elements of the criminal type. Nombre02 things, without the variation, the *a quo* would have concluded that the crime of enrichment under Article 346, subsection 3) of the Penal Code was not configured in this matter.

**VIII.- The allegations cannot prosper.** As already explained in the first considering clauses of this resolution, the Third Chamber resolved these claims in cassation, concluding that the principle of correlation between accusation and sentence had not been breached; that the former Art. 346, subsection 3) of the Penal Code had not been erroneously applied to the particular case; and that in the accusation formulated by the requesting body, all the elements of the criminal type of illicit enrichment were contemplated. In this regard, it was stated: ***“XVI. Section VII of the challenge brought by the Public Prosecutor's Office. Grounds of Cassation related to the erroneous application of substantive norms by the Court of Appeals. XVII.** Under the terms of Articles 33 and 41 of the Constitution; 365 and 468, subsection b) of the Code of Criminal Procedure, in the **second ground of the seventh section of the Cassation Appeal of the Public Prosecutor's Office**, it is alleged erroneous application of procedural precept 365 of the Code of Procedure, with respect to the “configuration of a lack of correlation between accusation and conviction sentence issued by the Trial Tribunal when convicting the accused [Name 006] for the crime of Illicit Enrichment” (Cf.f.175347 of volume XLII of the case file). For the accusing entity, the ruling of the Court of Appeal incurs a clear violation of Article 365 cited above, when it issued, on appeal, the acquittal of [Name01 006] for the crime of Illicit Enrichment and considered that the accusatory document described an incomplete action that had to be complemented by the Criminal Treasury and Public Function Tribunal, since both the accused facts and those accredited in sentence 167-2011 are similar, by attributing the same specific criminal actions to the defendant [Name01 006], except that the proven facts introduce the clarifying phrase “said benefit was paid in three installments” (Cf.f.175347 to 175352 of volume XLII of the case file).* On the subject, the challengers cite, as pertinent, the rulings of the Third Chamber numbers 2006-0503, of nine o'clock, on June second, two thousand six; 2007-0382, of nine forty, on July twenty-fifth, two thousand seven; and 2009-1667, of sixteen fifteen, on November twenty-sixth, two thousand nine, from which they extract that the modifications for the constitution of the defect of lack of correlation between accusation and sentence cannot refer to formal aspects but to substantial variations that significantly affect the exercise of the defense by being surprising, which implies that for the individual, the phrase introduced by the Trial Court to the proven facts is in no way unexpected for the accused or his technical defense, since in addition to appreciating an identity between the relation of accused facts and the proven facts, it is noted that [Name01 006] was charged with those actions from the earliest stages of the process and that the accusation describes the admission of a gift (dádiva) consisting of money, which was presented by the co-defendants [Name01 041] and [Name01 078] in consideration of his position as a public official, and the prosecuting entity does not perceive from where the Ad quem derives that the introduced phrase "surprises the defense, in the sense that it is a conviction for a gift in installments (tractos) (folio 174495 verso of the main file)…" (Cf.f.175354 of volume XLII of the file), since rather, the accused [Name01 006] was accused by the Public Ministry for three acts that described three gifts that constituted, at the same time, three crimes of Illicit Enrichment, while the proven facts, with the introduction of the mentioned phrase, describe the commission of a single crime paid in three installments, which in observance of the "principle of favorability" (Cf.f.175355 of volume XLII of the file), provided in Article 365 of the Code of Criminal Procedure, is more beneficial for the defendant and his defense. As a grievance, an incorrect issuance of the acquittal of [Name01 006] is set forth, since the Trial Court, far from harming the defendant, introduced a favorable circumstance through which the proven facts were reclassified to a single crime of Illicit Enrichment and not three as the Public Ministry sought, petitioning for the annulment of the ruling and the correct interpretation according to law as applicable, maintaining the conviction ordered by the A quo against [Name01 006]. In the third ground of the seventh section of the appeal, it is also claimed that Articles 33 and 41 of the Political Constitution Name02, as well as numeral 468 subsection b) of the Code of Criminal Procedure, were disregarded, and the former Article 346 subsection 3) of the Penal Code was erroneously applied, regarding the configuration of the crime of Illicit Enrichment accused against [Name01 006]. From the prosecutorial approach, fact 201 of the accusatory piece attributed to [Name02 006] a factual framework that included the objective and subjective elements of the criminal type of Illicit Enrichment, when it relevantly charged him with: "[…] Name73 defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift (dádiva) consisting of money, the same that was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment…" (Cf.f.175357 of volume XLII of the file. The supplied text belongs to the original), being that from facts 202 to 211, the acts upon which those gifts were presented were also described, namely: "a) Various bearer investment certificates on dates between December 10, 2001, and January 10, 2002; b) another series of bearer investment certificates on dates between July 2, 2002, and August 5, 2002; c) a final series of bearer investment certificates on dates between December 17, 2002, and January 21, 2003…" (Cf.f.175357 of volume XLII of the file), while that same relation of facts was taken as proven from fact 190 of sentence 167-2011, except for the inclusion of the phrase: "Said gift was paid in three installments (tractos)" (Cf.f.175358 of volume XLII of the file). However, despite the identity of both facts and that it is the same Court of Appeal that admits that the crime of Illicit Enrichment can be configured from the alternative conducts of: "…i) the acceptance of the offered gift and ii) the acceptance of the presented gift (folios 174493 of volume XLI of the file front and back…" (Cf.f.175358 of volume XLII of the file), it contradictorily issues the acquittal of the cited defendant, by determining that: "…In the case of the facts attributed to [Name01 006] we would be, then, 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 act without substance (sic), both for the one who offers and for 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 given the difficulty or impossibility of demonstrating other figures against the duties of public function, but in this specific case of the criminality charged to [Name01 006], that subsidiarity cannot be found, not only because the accusation remains at the mere act of offering the gift, and does not elaborate with sufficient evidence the other typical considerations of the punishable act…" (Cf. folios 174494 front and back)…" (Cf.f.175359 of volume XLII of the file). Based on the previous-quote reference, the prosecuting attorneys challenging the decision maintain that the appeals court errs when it assures that the accusation presents formal defects that attribute to [Name01 006] a "mere offering of the gift" (Cf.f.175359 of volume XLII of the file), because it forgets that lines earlier, that same ruling, in the transcription of the accused facts, charged the defendant with the "presentation of three gifts (dádivas)" (Cf.f.175359 of volume XLII of the file. The supplied text is from the original), which were accepted by him, such that the verb "to offer" was never used in the drafting of the facts enumerated from 199 to 211 (Cf.f.175359 of volume XLI of the file). They demand that the Ad quem builds a "false problem" to acquit the defendant [Name01 006], because it assumes that the accusation charged "offered gifts (dádivas ofrecidas)" (Cf.f.175360 of volume XLI of the file. The supplied text belongs to the original), when the truth is that the proven crime of illicit enrichment was for "the presentation of three gifts (dádivas) that were accepted by the accused [Name01 006]" (Cf.f.175359 of volume XLII of the file, the bolding is from the original). They repeat that the appeals Judges, from folio 174495 front and back onward, confuse in the proven facts the typical requirements of the crime of illicit enrichment by offered gifts, since they introduce circumstances related to other functional criminal types not charged to [Name01 006], which undermines the guilt analysis performed in the first instance ruling. In summary, they maintain that the Ad quem, despite having credited the receipt of monies presented to [Name01 006], acquits him of all penalty and responsibility, which seriously injures the punitive claim of the accusing entity, petitioning that the annulment of the ruling be ordered, a correct interpretation of the law, and that conviction 167-2011 issued against the defendant be maintained. Given the existing relationship between the second and third grounds of the seventh section of the prosecutorial appeal, both claims are heard jointly and are declared with merit. This Chamber estimates that the defects of lack of correlation between accusation and sentence and erroneous application of the former Article 346 subsection 3) of the Penal Code, as issued by the Appeals Court with respect to the crime of Illicit Enrichment attributed to the defendant [Name01 006], do not exist. Precisely, from the intellectual reasoning contained in the questioned ruling, it is clear that the Court of Appeal, to determine the aforementioned alleged defects, established what is pertinent: "…This Chamber has carefully read the facts attributed to the defendant [Name01 006], 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 (…) The Illicit Enrichment that is accused starts, as the Public Ministry might be framing it in its accusation, in the first place, by having been the subject of an offering of a gift, which is not a specific and specializing element of the accused crime, but of some other criminal figures, such as, for example, the crime of Bribery. 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 in which such criminality could have taken place. That is, every time an offering of a gift occurs, there should also be the charge of the correlative acceptance. In a word, for the criminal charges to be complete, they should be described in this way every 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 given in consideration of the office of the person who is a public official, since the gift alone is already an objective requirement of the criminal type for several offenses like improper bribery, proper bribery, or the same acceptance of gifts for an act performed, for example. Hence, it is not clarified, with the required precision, the accused fact and the eventual criminal nature of the conduct that could derive from it. In facts 203, 208, and 210, this deficiency is noted again (…). 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, indeed, was not included in the accusation. The Public Ministry accused three independent crimes without characterizing elements, and in Considering XII of the Sentence, on "Description of the conduct of the accused [Name01 006]", it was stated: /"190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, the same that was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief 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 accused fact, trying to accommodate the circumstance of the gifts and the absence of specializing elements in each one of them, in order to involve a fact that surprises the defense, in the sense that it is a conviction for a gift in installments that [Name01 006] would receive for carrying out activities or omissions that are not clarified, Name02 as well as the conditions under which the payment in installments would be explained. This latter point is not compatible with the circumstance accepted by the majority court that convicts the defendant for "acceptance of a presented gift", which is a different act 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 charge of a single offer of a gift does not allow knowing which of them it concerns, as explained in the previous section, and could lead one to think of the criminal nature of different criminal acts where a gift is an element to be taken into consideration, as is the case of proper bribery, improper bribery, acceptance of gifts for an act performed, and the very punishability of the corrupter. It is for this reason, therefore, that there would also be no basis to convict the defendant [Name01 006], and there would be sufficient reason to declare the nullity of the sentence, insofar as it holds the defendant as the responsible perpetrator of a crime of Illicit Enrichment, due to reclassification…" (Cf.f.174495 verso of volume XLI of the file). From the preceding reasoning, wielded by the Appeals Court, it can be inferred that the infractions argued by the Public Ministry present themselves in two aspects, on which the prosecuting entity is fully correct. In the first place, fact 190 from which the second instance court derives an incomplete charge of the crime of illicit enrichment does not present such a characteristic, since that specific section expressly describes the subjective and objective elements of the crime of Illicit Enrichment contemplated in the former Article 346 of the Penal Code, when it refers that [Name01 041] and [Name01 078], as representatives of the company [Name 091], "presented to the accused [Name01 006] in consideration of his office a gift consisting of money, the same that was admitted by [Name01 006] while he remained in the exercise of his position…" (Cf.f.00015473 of volume XXXII of the file, Fact 190, the supplied text is ours), as a public official and Deputy Chief of the Switching Department Directorate of the Costa Rican Electricity Institute, that is, it alludes to gifts that were presented to [Name01 006] when he held a public official position and to their admission by the accused. In this regard, note that the former Article 346 of the Penal Code stipulated: "…Shall be punished with imprisonment from six months to two years, the public official who without incurring a more severely punishable crime: (…) 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position…" (The supplied text is ours). Hence, since said article contains the disjunctive conjunction "u" changed to "o" to continue in the structure of the criminal type, the verb "to offer" which presents the vowel sound /o/, we are facing a word that "denotes difference, separation, or alternative between two or more persons, things, or ideas" (http://lema.rae.es/drae/?val=0). On the subject, as the mentioned article contains a conjunction that shows alternativity between two clearly differentiated actions, it is patent that, for the accreditation of the criminal type of illicit enrichment, contained in the former Article 346 of the Penal Code, the demonstration of the admission of the gift by the public official is sufficient, and it is not indispensable to demonstrate in the description of the facts the actions "presented" or "offered" at the same time, but only the accreditation of one of those conducts, that is, to receive or accept the gifts that are presented to him by reason of his position. Similarly, the description in each one of the sections of that factual framework of the characteristic of being a public official and the acceptance of the gift in consideration of that position becomes unnecessary, since in the first fact of the accusation referring to [Name01 006], both conditions had already been described. The second element to be considered and that is inferred from the quote of sentence 2012-2005 referred to above lies in that the difference admitted by that jurisdictional entity between the accused facts and the proven facts, from the perspective of this Chamber of Cassation, does not present an essential character, nor would it have produced any defect to the right of technical and material defense of the defendant [Name01 006], since the apparent constitutive facts of the single crime of Illicit Enrichment proven are detailed, in a clear manner, in the factual relationship described by the prosecutorial requisition, when it established: "…199) The accused [Name01 006] held the position of Electrical Engineer of the I.C.E. from December 1, 1998, until June 30, 2001, at which time he went on to occupy the position of Deputy Chief of the Switching Department Directorate of said institution. Such positions accredit him as a public official. The work activity also implied maintaining constant communication with suppliers in the field of telecommunications, among them the company [Name 091]. 200) Between the defendant [Name01 006] and the company [Name 091] there did not exist any type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from his condition as an official of the I.C.E., which, as stated, [Name01 006] held. 201) The defendant [Name02 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, the same that was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of the I.C.E., a situation that generated illicit enrichment for him. 202) It was thus that the defendant [Name01 041] and the indictee [Name01 078], following the dynamics of distribution of the money deposited in the current account of [Name 058] No. [Value 012] at Cuscatlán International Bank originating from [Name 060], ordered [Name02 028] to purchase various certificates for the delivery of the following gifts: 203) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08, 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). 204) Said gift was accepted by the accused [Name01 006] who proceeded to endorse certificates Nos. Identificacion16 Identificacion06 Identificacion17 and delivered them at the Name74 agency with the purpose of acquiring in his name the vehicle make Suzuki, Grand Vitara XL, series , chassis , engine H27A105387, model 2002. 205) On January 10, 2002, sales report No. 99-12-54 was issued by Name74, through which the vehicle Grand Vitara XL, of the indicated qualities, was sold to the accused [Name01 006]. In this way, on January 15, 2002, money receipt No. 38999 was issued by the agency Name74 Suzuki Vehicles, in the name of [Name01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle. 206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was admitted by the accused [Name01 006], who invested it in the BCT Valores stock exchange position on January 14, 2002, together with its interests for a total of $39.65 - adding from his own funds a cash sum of eight thousand one hundred dollars ($8,100) - in a corporate fund in dollars administered by that financial entity. 207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) made out to [Name01 197], spouse of the accused [Name01 006]. 208) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name01 041] and [Name01 078] presented to the accused [Name01 006] a second gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09, No. Identificacion10, and No. Identificacion11 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. 209) Said gift was accepted by the accused [Name01 006], who gave it to his wife [Name01 197]; she proceeded to constitute term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days.

210) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15, each in 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 $100.08., which was accepted by the accused [Nombre01 006] and disposed of in the following manner: a) Regarding certificate Identificacion12, he delivered it along with the interest coupon —adding cash from his own funds for a total of one thousand two hundred dollars ($1,200)— to BCT Valores, with the objective of making an investment in the dollar liquidity fund administered by BCT Sociedad Fondos de Inversión S.A. This investment was finally settled on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86), which was made payable to the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre01 197] at Banco Popular y de Desarrollo Comunal. b) Regarding certificate No. Identificacion14, he delivered it along with the interest coupon for $25.02 to his wife [Nombre01 197], who proceeded to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them —along with the respective interest coupons— to his wife, who delivered the certificates to Mrs. [Nombre01 199] for the purpose of paying for the decoration of her dwelling house, and deposited the coupons into her own account at Banco Popular y de Desarrollo Comunal. 211) In total, the accused [Nombre02 006] was illicitly enriched through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028] and [Nombre01 078], in the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f.14490-14492 of volume XXX of the case file). To the preceding description of facts, the factual grounds contained in the majority opinion of judgment 167-2011 must be joined, to dismiss the alleged defect of correlation between accusation and sentence, since the section “Description of the conduct of the accused [Nombre 006] (Considering No. XII)”, which contains the proven facts, established: “…188) The accused [Nombre01 006] held the position of Electrical Engineer of I.C.E. from December 1, 1998, until June 30, 2001, at which time he assumed the position of Deputy Chief of the Switching Department Directorate of said institution. Such positions accredit him as a public official. The work activity also implied maintaining constant communication with suppliers in the field of telecommunications, among them the company [Nombre 091]. / 189) Between the defendant [Nombre01 006] and the company [Nombre 091], there was no type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of an official of I.C.E., which, as stated, [Nombre01 006] held. / 190) The defendant [Nombre01 041] and the indictee [Nombre01 078], as representatives of the company [Nombre01 091], presented to the accused [Nombre01 006], in consideration of his office, a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments. / 191) It was thus that the defendant [Nombre01 041] and the indictee [Nombre01 078], following the distribution dynamic of the money deposited in the checking account of [Nombre01 058] No. [Valor 012] at Cuscatlán International Bank originating from [Nombre02 060], ordered [Nombre02 028] to purchase various certificates for the delivery of the following gifts: / 192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre02 078] presented to the accused [Nombre01 006] a first installment of the gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08, 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). / 193) Said gift was accepted by the accused [Nombre01 006], who delivered certificates Nos. Identificacion16 Identificacion06 Identificacion17 to the agency [redacted agency name] with the purpose of acquiring, in his own name, the vehicle brand Suzuki, Grand Vitara XL, series JS3TX92V024103244, chassis , engine H27A105387, model 2002. / 194) On January 10, 2002, sales report No. 99-12-54 was issued by [redacted agency name] by which the vehicle Grand Vitara XL, with the indicated specifications, was sold to the accused [Nombre01 006]. In this manner, on January 15, 2002, money receipt No. 38999 was issued by the agency [redacted agency name] Vehículos Suzuki, in the name of [Nombre01 006], for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle. / 195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was admitted by the accused [Nombre01 006], who invested it at the brokerage house BCT Valores on January 14, 2002, along with its interest for a total of $39.65 —adding from his own funds a sum of cash for eight thousand one hundred dollars ($8,100)— in a corporate dollar fund administered by that financial entity. / 196) This investment was settled on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) made payable to [Nombre01 197], spouse of the accused [Nombre02 006]. / 197) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre01 041] and [Nombre 078] presented to the accused [Nombre01 006] a second payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 in the respective amounts of ten thousand dollars ($10,000), five thousand dollars ($5,000), and five thousand dollars ($5,000), and their corresponding interest coupons for the total sum of $53.17. / 198) Said gift was accepted by the accused [Nombre02 006], who delivered it to his wife [Nombre02 197]; she proceeded to constitute the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98), issued on September 30, 2002, in her name and with a term of three months and seven days. / 199) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] the third payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15, each in 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 $100.08., which was accepted by the accused [Nombre01 006] and disposed of in the following manner: / a) Regarding certificate Identificacion12, he delivered it along with the interest coupon —adding cash from his own funds for a total of one thousand two hundred dollars ($1,200)— to BCT Valores, with the objective of making an investment in the dollar liquidity fund administered by BCT Sociedad Fondos de Inversión S.A. This investment was finally settled on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86), which was made payable to the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre02 197] with Banco Popular y de Desarrollo Comunal. b) Regarding certificate No. Identificacion14, he delivered it along with the interest coupon for $25.02 to his wife [Nombre01 197], who proceeded to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them —along with the respective interest coupons— to his wife, who delivered the certificates to Mrs. [Nombre02 199] for the purpose of paying for the decoration of her dwelling house, and deposited the coupons into her own account at Banco Popular y de Desarrollo Comunal. 200) In total, the accused [Nombre01 006] was illicitly enriched through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028] and [Nombre01 078], in the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f.00015473-00015476 of volume XXXII), such that, once the charges brought against [Nombre01 006] are compared against the factual grounds of the judgment —regardless of their veracity or not, which must be assessed by the respective Court of Appeals— no essential difference is observed that would have prevented the full exercise of the right of defense, both technical and material, of the justiciable [Nombre 006], as shown in the following comparative table:

No. [Valor 012] in Cuscatlán International Bank coming from [Nombre02 060], ordered [Nombre01 028] to purchase various certificates for the delivery of the following gifts:

203) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08, 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).

192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre02 041] and [Nombre02 078] presented to the accused [Nombre02 006] a first delivery of the gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08, 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).

204) Said gift was accepted by the accused [Nombre01 006], who proceeded to endorse certificates Nos. Identificacion16 Identificacion06 Identificacion17 and delivered them to the Nombre74 agency with the purpose of acquiring in his name the vehicle make Nombre18, Grand Vitara XL, series JS3TX92V024103244, chassis , motor H27A105387, model 2002.

193) Said gift was accepted by the accused [Nombre01 006], who delivered certificates Nos. Identificacion16 Identificacion06 Identificacion17 to the Nombre74 agency with the purpose of acquiring in his name the vehicle make Nombre04, Grand Vitara XL, series JS3TX92V024103244, chassis JS3tx92v024103244, motor H27A105387, model 2002.

205) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74, by which the vehicle Grand Vitara XL, of the indicated qualities, was sold to the accused [Nombre01 006]. Thus, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the name of [Nombre01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), for payment of the referenced vehicle.

194) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74, by which the vehicle Grand Vitara XL, of the indicated qualities, was sold to the accused [Nombre01 006]. Thus, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the name of [Nombre01 006] for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), for payment of the referenced vehicle.

206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was accepted by the accused [Nombre01 006], who invested it in the BCT Valores brokerage position on January 14, 2002, together with its interest totaling $39.65 – adding from his own funds a cash sum of eight thousand one hundred dollars ($8,100) – into a corporate dollar fund managed by that financial entity.

195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was accepted by the accused [Nombre 006], who invested it in the BCT Valores brokerage position on January 14, 2002, together with its interest totaling $39.65 – adding from his own funds a cash sum of eight thousand one hundred dollars ($8,100) – into a corporate dollar fund managed by that financial entity.

207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) made out to [Nombre01 197], spouse of the accused [Nombre01 006].

196) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) made out to [Nombre01 197], spouse of the accused [Nombre01 006].

208) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre01 041] and [Nombre02 078] presented to the accused [Nombre01 006] a second gift consisting of the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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.

197) Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre02 041] and [Nombre02 078] presented to the accused [Nombre01 006] a second payment of the gift consisting of the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11 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.

209) Said gift was accepted by the accused [Nombre01 006], who gave it to his wife [Nombre01 197]; she proceeded to establish the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days.

198) Said gift was accepted by the accused [Nombre01 006], who gave it to his wife [Nombre01 197]; she proceeded to establish the term savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days.

210) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] a third gift consisting of the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15, 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 $100.08, which was accepted by the accused [Nombre01 006] and disposed of as follows: a) Regarding certificate Identificacion12, he delivered it together with the interest coupon – adding cash from his own funds for a total of one thousand two hundred dollars ($1,200) – to BCT Valores, with the objective of making an investment in the dollar liquidity fund, managed by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) that was made out to the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre02 197] in the Banco Popular y de Desarrollo Comunal. b) Regarding certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02, to his wife [Nombre01 197], the latter proceeding to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them – together with the respective interest coupons – to his wife, who gave the certificates to Mrs. [Nombre02 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons into the account in her name at Banco Popular y de Desarrollo Comunal.

199) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corruptors [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] the third payment of the gift consisting of the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15, 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 $100.08, which was accepted by the accused [Nombre01 006] and disposed of as follows: a) Regarding certificate Identificacion12, he delivered it together with the interest coupon – adding cash from his own funds for a total of one thousand two hundred dollars ($1,200) – to BCT Valores, with the objective of making an investment in the dollar liquidity fund, managed by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) that was made out to the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre01 197] with Banco Popular y de Desarrollo Comunal. b) Regarding certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02, to his wife [Nombre01 197], the latter proceeding to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them – together with the respective interest coupons – to his wife, who gave the certificates to Mrs. [Nombre01 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons into the account in her name at Banco Popular y de Desarrollo Comunal.

211) In total, the accused [Nombre01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028], and [Nombre01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f. 14490-14492 of Volume XXX of the expediente).

200) In total, the accused [Nombre01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028], and [Nombre01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f. 00015473-00015476 of Volume XXXII of the expediente).

Certainly, from the preceding box, it is possible to deduce that only one circumstance departs from the literalness of the accused factual framework, and it is that which results from accused fact 201 with reference to proven fact 190 and related to the form of payment of the apparent crime of illicit enrichment (Enriquecimiento Ilícito) attributed to the defendant [Nombre 006]. Thus, if one observes carefully, when comparing facts 201 with respect to 190, there is no significant variation in the description of the criminal type of illicit enrichment (Enriquecimiento Ilícito) imputed from the outset to [Nombre01 006], since both factual frameworks describe the manner in which [Nombre01 041] and [Nombre01 078], as representatives of [Nombre01 091], presented to him a gift consisting of bearer investment certificates, in consideration of his position as a public official and Deputy Head of the Switching Department Directorate (Dirección del Departamento de Conmutación) of the Instituto Costarricense de Electricidad, determining as a non-substantial divergence, the form in which the gift was delivered to [Nombre01 006], namely, that it “…was paid in three installments…” (Cf. f. 00015474 of Volume XXXII of the expediente). In this regard, note that once the documentary and testimonial evidence was evacuated in the debate, the Trial Court determined from the description of the accused facts, with clear favoring of the legal situation of the accused [Nombre01 006], that it concerned the alleged commission of a single crime of illicit enrichment (Enriquecimiento Ilícito) and not three as the prosecutorial body had initially contemplated, since it was a specific amount to be paid and received, made in three installments, clearly described in the prosecutorial accusation: the first, was imputed to have occurred in the period between December 10, 2001, and before January 10, 2002, with the delivery of the bearer investment certificates, numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 from Banco Cuscatlán de Costa Rica, each for ten thousand dollars, for a total of fifty thousand dollars ($50,000) (Fact 203 of the prosecutorial accusation); the second, described between July 2 and August 5, two thousand two, in which [Nombre01 041] and [Nombre02 078] presented to the accused [Nombre01 006] the bearer investment certificates from Banco Cuscatlán de Costa Rica, numbers Identificacion09 Identificacion10 and Identificacion11 for ten thousand dollars ($10,000), five thousand dollars ($5,000), and five thousand dollars ($5,000), respectively, for a total of twenty thousand dollars and their corresponding interest coupons for the sum of $53.17 (Fact 208 of the prosecutorial accusation), and the third, between December 17, two thousand two, and January 21, two thousand three, in which both corruptors delivered the bearer investment certificates, numbers Identificacion12 Identificacion13 Identificacion14 and Identificacion15 from Banco Cuscatlán de Costa Rica, each for ten thousand dollars ($10,000) and their respective interest coupons for $100.08 (Fact 210 of the prosecutorial accusation), for a total of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20).

Thus, the modification made by the trial court to the charged factual framework was not significant nor did it entail a variation of essential elements tending to incriminate the attributed criminal conduct, but rather it was made exclusively to detail the apparent installments in which the alleged gift of one hundred ten thousand three hundred thirty-six dollars and twenty cents was paid to [Name01 006], so that, contrary to what was determined by the Court of Appeals, it was neither unexpected nor did it entail an infringement of the right to a defense (See likewise Chamber Three of the Supreme Court of Justice, votes 2013-000578, at ten hours and six minutes, of May twenty-fourth, two thousand thirteen, with the panel of Judges Doris Arias, Sandra Zúñiga, Rosibel López, Jorge Enrique Desanti, and Ronald Cortés; 2013-00921, at eleven hours thirty-five minutes, of July twelfth, two thousand thirteen, with the panel of Judges José Manuel Arroyo, Magda Pereira, Jorge Enrique Desanti, Sandra Zúñiga, and Rafael Sanabria; 2006-00503, at nine hours, of June second, two thousand six, with the panel of Judges José Manuel Arroyo, Jesús Ramírez, Alfonso Chaves, Rodrigo Castro, and Magda Pereira; 2005-00574, at eight hours fifty-five minutes, of June tenth, two thousand five, with the panel of Judges Alfonso Chaves, Jesús Ramírez, Magda Pereira, María Elena Gómez, and Jorge Arce), insofar as that conduct was described from Nombre11 in facts 203, 208, and 210 of the prosecutorial accusation, which the accused and his defense formally knew of since the holding of the preliminary hearing, in the period from September first to October third, two thousand eight (Cf. f.10423 of tome XXIII of the file). Note that the description of proven facts benefited the accused [Name01 006], since the accusation initially filed by the Public Prosecutor's Office attributed to him the commission of three crimes of Illicit Enrichment, whereas the Trial Court, making use of the powers contemplated in Article 365 of the Code of Criminal Procedure, reclassified the conduct to a single crime of Illicit Enrichment, carried out in three installments. In full connection with the arguments raised, it must be maintained that the principle of correlation between accusation and judgment does not safeguard, as the Court of Appeals seems to understand it, “…an absolute identity between the factual account of the accusatory instrument and the facts proven in the judgment as the appellant seems to understand it (…) The indicated principle is violated when, “the Judges substantially modify the core of the prosecutorial requisition, to the point of generating surprise and defenselessness for the parties (see from this Chamber, among others, votes No. 137-F, at 9:10 hours, of April 24, 1992, No. 95-F, at 9:35 hours, of March 12, 1993, No. 366-F, at 9:05 hours, of June 30, 1995, and No. 501, at 10:40 hours of May 25, 2001)”. (Chamber Three, No. 198 at 9:30 hours of March 18, 2005)…” (Chamber Three of the Supreme Court of Justice, vote 2012-00544, at nine hours forty-eight minutes, of March twenty-second, two thousand twelve, with the panel of Judges Arroyo, Nombre26, Pereira, Chinchilla, and Arias), such that the mentioned principle does not prohibit the reclassifications under debate either, as the Superior Court seems to tacitly understand it, but rather those may occur as long as they do not have to modify essential elements of the attributed framework or represent an impairment to the right of defense (See likewise, (Chamber Three of the Supreme Court of Justice, vote 2012-001773, at fifteen hours and fifty-eight minutes, of December fourth, two thousand twelve, with the panel of Judges Jesús Ramírez, Madga Pereira, Carlos Chinchilla, Doris Arias, and María Elena Gómez). By virtue of the foregoing, the second and third grounds of the seventh section of the Cassation Appeal of the Public Prosecutor's Office are granted, whereby the judgment is annulled insofar as it declared the acquittal of [Name01 006], for lack of correlation between accusation and judgment and for the erroneous application of former Article 346 subsection 3) of the Penal Code. The case is remanded, so that with a new panel, it may proceed according to the applicable law…”. As observed, the objections of the defender of [Name01 006] were elucidated by Chamber Three when hearing the appeal filed by the Public Prosecutor's Office against the resolution issued by this court (with a different panel), in which, in turn, the claims made by attorney Flores Fallas in this procedural phase (appeal of judgment) had been granted. The cassation body, in the last instance, concluded that the accusation was not deficient in terms of the description of the elements of the criminal offense of illicit enrichment; that the change made by the trial court, namely, holding it as proven that the economic consideration was paid in three installments, not only did not harm the right of defense of [Name01 006] but -on the contrary- favored him, since he was convicted of a single crime of illicit enrichment; and finally, that the application of the substantive norm (Art. 346 subsection 3) of the Penal Code) had been correct. We speak of decisions that this chamber must respect when carrying out the ordered remand and which, in any case, we consider correct, since indeed, from the comprehensive reading of the accusation, it is extracted that [Name01 006] admitted the three aforementioned gifts on the occasion of and during the performance of his position, elements that, precisely, constitute the criminal offense of illicit enrichment. Note that fact number 201 contemplated a generic description of the conduct attributed to [Name01 006]. Specifically, it is stated that a gift was presented to him in consideration of his public position as deputy chief of the Switching Department Directorate of the ICE, and that he admitted it while he remained in the exercise of the same (f. 14,491 front, tome XXX). This appellate court affirms that it is a generic description since at this point in the imputation, no mention is made of the amounts admitted by the defendant, it not being until later, specifically in facts numbers 203, 208, and 210, where that extreme was addressed. It suffices to read the already cited facts comprehensively to conclude that number 201 also forms part of them, complementing them. For this same reason, the a quo could well have concluded that [Name01 006] was attributed three independent crimes of illicit enrichment and not just one, as it finally concluded, without the Public Prosecutor's Office appealing that point. Consequently, the modification made by the trial court, in the sense of indicating that this accused admitted a single gift -and that therefore he committed a single crime- effectively was more favorable to him. On the other hand, it is important to reiterate that illicit enrichment is a generic or residual criminal offense compared to more complex figures. Unlike what happens with other criminal offenses, where a specific purpose that guides the public official upon receiving the gift or the promise thereof is provided as a subjective element additional to intent, and which is the same that directs the action of whoever, convergently, presents or promises the consideration (e.g., the acceptance of gifts for an act performed, in relation to the penalty of the corruptor), in the criminal offense of illicit enrichment, the legislator contemplated the mere admission of economic considerations that were presented or offered to the public official in consideration of his office and during the exercise of the position that motivated that presentation or offer, without it being necessary to demonstrate, because the criminal offense does not demand it, that additional purpose that complements the intent. By way of example, to sanction illicit enrichment it is not necessary to demonstrate that the gift was received as consideration for an act performed by the public official and without there having been a prior promise, a purpose that is indeed provided as a specializing element in the criminal offense of acceptance of gifts for an act performed. Therefore, the defender is not correct in maintaining that for this crime to be configured, it is indispensable that the subjective elements that he lists have been demonstrated or, alternatively, categorically ruled out, elements which are characteristic of criminal offenses that have a genus-to-species relationship with illicit enrichment, where the latter is the generic or residual norm, elements that, moreover, it should be said, were not imputed in relation to [Name01 006]. For all the foregoing, the objections are dismissed.

**IX.- First ground of cassation on procedural grounds. Erroneous application of the statute of limitations criteria, given that a correct reading of the criminal prescription rules allows concluding that the acts charged against [Name01 006] are "prescripted"** (*sic*, f. 17,107, tome XXXVI). For the public defender, the rules of prescription contained in Articles 31 subsection a), 33 subsection a), 376, 363 subsection b), and 369 subsection d), all of the Code of Criminal Procedure, and 346 subsection 3) of the Penal Code have been violated. First, he points out that the classification given to the acts was reduced to the crime of illicit enrichment. Now, on the date of the charged acts (December 10, 2001), Article 346 subsection 3) indicated: “*Shall be punished with imprisonment of six months to two years, the public official who, without incurring a more severely punishable crime: 3) Admits gifts that are presented or offered to him in consideration of his office, while he remains in the exercise of the position*”. The co-defendant [Name01 006] is attributed 3 crimes of illicit enrichment in material concurrence, as provided in numeral 346 subsection 3) of the Penal Code, sanctioned with a prison term of 6 months to 2 years, whose prescription period, according to Article 31 of the Code of Criminal Procedure, would be 3 years, thus reduced by half it would be 18 months from any of the events interrupting the prescription. Specifically, Article 33 of the Code of Criminal Procedure establishes that the prescription periods shall be reduced by half in several cases, one of which is the appearance of the accused to give an investigative statement. In the case of [Name01 006], said act took place at 14:05 hours on March 7, 2005. Therefore, a prescription period of 18 months must be computed from that moment. Now, the next interrupting act, which was the scheduling of the preliminary hearing, took place on September 10, 2007, whereby it must be concluded that by then the criminal action had already prescribed (it did so as of September 7, 2006). However, the trial court considered that the declaration of complex proceedings made on March 3, 2006, produced a retroactive effect, affecting the statement as an accused that was made following the prescription rules of ordinary proceedings. The appellant argues that it is not that he does not recognize that complex proceedings affect prescription; however, said institute cannot have retroactive effects. He adds that while the court denies such retroactivity, the truth is that its interpretation Nombre05 that, since the law does not provide that the declaration of complex proceedings affects the events of interruption fulfilled ordinarily. Moreover, what was resolved harms the principles of legality and legal certainty. After citing Article 376 of the Code of Criminal Procedure and some reasoning from the trial court's decision, the appellant considers that the argument that the accused were aware that the reduction could be rendered ineffective if the proceeding became one of complex proceedings, besides being an irrelevant fallacy, Nombre05 render ineffective the recognition that the same court made regarding that the prescription period was reduced by half with the statement of the accused. In support of his position, he alludes to the opinion given by Nombre75, who considers that the period reduced by half fulfilled in the ordinary phase of the proceeding, before the declaration of complexity, must be applied as is, without giving retroactive effect to the aforesaid declaration (Nombre75, Procedure for Matters of Complex Proceedings, in: Costa Rican Criminal Procedural Law, San José, Costa Rica, Association of Criminal Sciences of Costa Rica, Volume II, 1st edition, 2007, pp. 923 to 924). As a grievance, the challenger affirms that what was decided harms the principle of legality and certainty, by ignoring the prescription rules contemplated in the Code of Criminal Procedure, which serve to limit the *ius puniendi* of the State. Finally, he notes that the error lies in not considering the criminal action prescribed despite it being so, for the reasons stated.

**X.- The claim is dismissed.** The issue of the statute of limitations for the criminal action was definitively settled by Chamber Three categorically, concluding that in the specific case it had not materialized. Specifically, it stated: “***The claim is granted.** According to the arguments of the accusatory body, which this Cassation Chamber strictly proceeds to resolve, the first subsection alleged by the Public Prosecutor's Office in this second ground is inaccurate, in affirming that the Superior Court tacitly conceived prescription as a fundamental right of the accused, given that said jurisdictional body, rather assumed, from the conception propounded in vote 856-2001, at fifteen hours eighteen minutes, of January thirty-first, two thousand one, of the Constitutional Chamber, the institute of prescription as “…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” (Cf. f.174446 of tome XLII of the file), a criterion that this Cassation Chamber shares without major objections, in strict adherence to the erga omnes jurisprudence of the Constitutional Chamber, which through votes 4397-99, at sixteen hours six minutes, of June eighth, 1999; 11582-01, at eight hours fifty-one minutes, of November ninth, two thousand one; 3498-2002, at fourteen hours and forty-six minutes, of April seventeenth, two thousand two; 2008-002119, at fourteen hours and fifty-one minutes, of February thirteenth, two thousand eight, among others, has held regarding the nature of the statute of limitations for criminal action, that it is nothing more than: “… **the cessation of the punitive power of the State caused by the passage of a certain period fixed by law**. The State, in these cases, declines the exercise of its punitive power and the right to apply a certain penalty, or to enforce the penalty already imposed in a specific case. It arises mainly out of respect for the principle of legal certainty for individuals. Faced with the power-duty of the State to apply the law and pursue crime, the right to resist that power also arises, and that is why the legislator establishes certain rules to limit it and protect the citizen. The right of defense and its derivatives, the right to know what to expect -the basis of legal certainty-, are just some of those rules that seek to balance the interests at stake -those of the citizen and the State-, all within the context of a democratic system of law. **II. Prescription is not, then, a punishment, nor a benefit -as the appellant seems to conceive it-, but a procedural instrument that arises from the need to guarantee the citizen that there will be no arbitrariness in the prosecution of crime, because before it operates the full effectiveness of the objective parameters established in law, and no others** (…) III. The legislator, when regulating the prescription of crimes in our country, by criminal policy, chose certain objective parameters such as the type of penalty, the maximum extreme of the sanction, or maximum and minimum limits in relation to the maximum extreme of the sanction, all with the aim of ensuring, according to the specific characteristics of each crime, a normal development of the prosecution of the criminal action and of the process in case it is exercised. The legislator considered that some cases, by their nature, require more time for reporting, investigation, and trial than others, such as that of injuries or other minor ones which have a prescription limit of two years. The formula used by the legislator, in the judgment of this Chamber, is not arbitrary; it is only one among many that could have been used to set the time -according to each crime- that it deems necessary for reporting, investigation, and punishment. It could well have opted for fixed maximum and minimum limits for each type of crime, or not take into account the type of penalty, but it opted for a regulation that, by using various factors (type of penalty, type of crime, maximum extreme, etc.), could serve as a parameter to reconcile the interests of the State in prosecuting crime, and the rights of the citizen against its punitive power. **The legislator is not obliged to opt for a single formula that applies to all crimes equally, because as explained supra, what this institute intends is to reasonably regulate the prudent time that the legislator considers appropriate for the exercise of criminal action in certain types of crimes**. The fact that for serious crimes it establishes a maximum prescription period less than the maximum extreme of the penalty, while it does not do so Nombre02 for minor crimes in which it allows a prescription greater than the maximum extreme of the penalty, does not imply a violation of the Constitution and responds to the initial need to locate evidence, debug it, and choose that which relates to the thema probandi; to facilitate the preparation of the defense and the eventual holding of a trial, circumstances that are overcome with a period that the legislator estimated at two years, which is why, once these have elapsed, this parameter loses importance and others are applied, such as the amount of penalty to be imposed, for the purpose of setting the statute of limitations for the criminal action…” (**Constitutional Chamber of the Supreme Court of Justice**, vote 6472-96, at fifteen hours forty-two minutes, of November twenty-seventh, nineteen ninety-six. The emphasis is ours. In the same sense, see votes 01797-97, at fifteen hours twenty-one minutes, of April second, nineteen ninety-seven; 2008-002119, at fourteen hours and fifty-one minutes, of February thirteenth, two thousand eight; 2008-002120, at fourteen hours and fifty-two minutes, of February thirteenth, two thousand eight, all of the Constitutional Chamber). From the foregoing perspective, as the figure of the statute of limitations for criminal action is considered a merely procedural institute that results in the cessation of the state's ius puniendi, occurring as a consequence of the passage of time, it is necessary to make clear that, within that notion, at least three fundamental elements developed by constitutional jurisprudence must be studied: *First*, that **the regulation of the statute of limitations for criminal action is a matter of criminal policy** adopted by the State through the competent body for it, namely the Legislative Assembly, such that it has powers to establish the parameters for its regulation. *Second*, that **there is no constitutional right to prescription,** but rather the right to legal certainty, legality, effective judicial protection, and equality, principles that are not harmed by the State as long as the periods established for the reporting, investigation, and trial of crimes set by the legislator are **reasonable and defined and limited by law.** *Third*, that prescription is a legal instrument created for the purpose of declining the exercise of the punitive power of the State, which acts **as a procedural sanction for the inactivity of the procedural subjects in initiated or uninitiated processes**." (judgment no. 4397-99 at sixteen hours six minutes, of June eighth, 1999)…” **(Constitutional Chamber of the Supreme Court of Justice**, vote 3498-2002, at fourteen hours and forty-six minutes, of April seventeenth, two thousand two. The emphasis belongs to the original). Based on such considerations, it is manifest that the theoretical conceptualization used in the specific case by the Ad quem regarding the institute of the statute of limitations for criminal action, is legally sound, since from the transcribed quote, it can be deduced that it is conceived as the cessation of state power and not as a right of the accused. However, from the foregoing caveat, this Cassation Chamber also notes that judgment 2012-2550 presents a highly significant error by declaring the statute of limitations for the criminal cases pursued against the accused [Name01 001], [Name 006], [Name 028], [Name 018], [Name02 022], [Name01 041], and [Name01 033] and interpreting and applying norm 376 of the Code of Criminal Procedure regarding the declaration of complex proceedings, **for which reason this ground must be granted on that question, in light of the reasons set forth below**. The procedure for complex proceedings has been understood by the Constitutional Chamber as an exceptional process included in our legislation based on Article 376 of the Code of Criminal Procedure, which “…raises an evident conflict between two tendencies or interests that have been present throughout its history. On the one hand, the concern to establish a system of guarantees against state power that protects the freedom and dignity of the person, and on the other hand, the achievement of the greatest possible efficiency in the application of criminal coercion. A model of criminal procedure in a democratic state governed by the rule of law must respond to the dual problem of efficiency and guarantee, seeking the point of balance between both interests. **The procedure for matters of complex proceedings is designed as an exceptional procedure, for qualified cases, in the face of which a clear and evident difficulty in handling truly exists. It seeks to avoid the dysfunction that would occur by applying ordinary time limits to cases whose complexity demands a different treatment, without failing to establish a maximum period to limit the exercise of punitive power**. **Its exceptional nature lies in the fact that not only are the time limits of the ordinary procedure extended, but also the time limits of pretrial detention, which is obviously harmful to the interests of the accused**. Said procedure must be authorized in a duly reasoned manner by the court, ex officio or at the request of the Public Prosecutor's Office, and may be agreed upon when it is complex due to the multiplicity of facts, the high number of accused or victims, or when it involves organized crime. **The purpose of the authorization is to be able to have longer time limits than those of the ordinary procedure for pretrial detention, investigation, resolution of the matter, and the filing and resolution of appeals; in consideration of the nature and particularly complex characteristics of the case***.

The exceptional nature of this type of proceeding arises from the demands of the principle of prompt and complete justice, provided for in Article 41 of the Political Constitution, according to which every person must have access to prompt justice to assert their rights, as well as from the right of the accused to be tried within a reasonable time, established in Article 25 of the American Declaration of the Rights and Duties of Man, Article 9.3 of the International Covenant on Civil and Political Rights, and Articles 7.5 and 8.1 of the American Convention on Human Rights…” (*Constitutional Chamber of the Supreme Court of Justice*, decision 2006-01029, of fourteen hours and thirty-four minutes, on February first, two thousand six. The emphasis is ours). Thus, it is a special criminal proceeding ordered by a reasoned resolution, in which, without violating the principle of equality of the various procedural parties, due to the complexity of the case, whether by reason of the multiplicity of facts, number of accused or victims, or if it involves organized crime, various time limits are extended for the purpose of carrying out the investigation and procedures properly, which otherwise, and under ordinary conventional time limits, could not be completed due to the difficulty in processing the case, despite the social importance it might hold (See in the same sense, **Constitutional Chamber of the Supreme Court of Justice**, decision 2006-01029, of fourteen hours and thirty-four minutes, on February first, two thousand six). Thus, Article 376 of the Code of Criminal Procedure regulates the general rules or basic premises upon which this procedure is governed, by establishing that: “...When the proceeding is complex due to the multiplicity of facts, the high number of accused or victims, or when it concerns cases related to the investigation of any form of organized crime, the court, on its own motion or at the request of the Public Prosecutor's Office, may authorize, by reasoned resolution, **the application of the special rules provided for in this Title**. At the trial stage, the decision may only be adopted when calling for debate. **When the application of the complex proceeding is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations term to one half, provided for in Article 33 of this Code, shall not apply**…” (As amended by Law No. 8146, of October 30, 2001, published in La Gaceta No. 227, of November 26, 2001. The emphasis is ours), it being expressly derivable from the aforementioned rule that our legislator, through that regulation, provided a special treatment, in consideration of the particularities of the case, which is different depending on the stages in which it was ordered. Thus, when the application of the proceeding is ordered during the preparatory or intermediate phases, the statute of limitations period continues to run, only no longer reduced, but in its full term. It is not a ground for interruption of the statute of limitations for the criminal action, because the time that had elapsed is maintained, only now it would run without any reduction. On this matter, the Constitutional Chamber, when resolving an action filed by an individual who alleged the violation of the right to be tried within a reasonable time, based on the alleged unconstitutionality of Articles 376, 377, 378, and 379 of the Code of Criminal Procedure related to the complex proceeding, established: “… **On the other hand, the fact that Article 376 in fine states that when the application of the complex proceeding is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations period to one half, provided for in Article 33 of the Code of Criminal Procedure, shall not apply, does not violate the right to be tried within a reasonable time. As the plaintiff himself correctly states, the statute of limitations for the criminal action and the reasonable duration of the proceeding are not the same thing and begin to be calculated at different times; the statute of limitations from the commission of the act and the duration of the proceeding from when the accusation is individualized against a particular subject.** The statute of limitations is the cessation of the State's punitive power caused by the passage of a specific period established by law and serves reasons of legal certainty. **The non-reduction of the statute of limitations period to one half in complex proceeding crimes is reasonable, because in these cases the difficulty of the proceedings may prevent the repression of such criminal activities, the prosecution of which is in the interest of society. The statute of limitations period does not coincide with the period for being tried, and in this latter case, the particular circumstances of the case must be assessed, such as the complexity, the conduct of the parties, and of the authorities (sic).**…” (**Constitutional Chamber of the Supreme Court of Justice**, decision 2006-01029, of fourteen hours and thirty-four minutes, on February first, two thousand six. The emphasis is ours). From the constitutionality of the cited Article 376, it must be clarified that the provision itself makes an important distinction between the various stages of the proceeding and the effects that the declaration of complex proceeding produces in them, by expressly preventing the reduction of the statute of limitations periods to one half, for the investigation and intermediate stages, this action being driven by the fact that it is in these early stages where more time is needed for the investigation that such complex crimes require, and it being understood that there is an express prohibition rule contemplated for the trial phase. With respect to the reduction of the limitation period in the early stages of the proceeding, as part of the questions occupying this Chamber, it must be understood that this declaration of complexity converges with some of the interrupting acts contained in Article 33 of the Code of Criminal Procedure, such as the taking of the defendant's statement (declaración indagatoria) or the scheduling of the preliminary hearing, as the case may be, which in turn implies that, as they are acts typical of the initial and intermediate stages, they were considered by the legislator when enacting the cited numeral 376, so that, even if they had already occurred as interrupters of the statute of limitations, the declaration of complex proceeding, once final, has a direct impact on the reduction of the limitation period to one half provided for in the cited rule 33, with the full period running. This is so much so that, in the case of pretrial detention, once the complex proceeding is ordered, the time limits are extended to eighteen months, having an immediate effect of extending the pretrial detention periods. On this matter, this Third Chamber, with the integration of Magistrates Doris Arias, Rafael Ángel Sanabria, Ronald Cortés, Rosibel López, and Sandra Zúñiga, in decision 2013-01758, of ten hours and forty-five minutes, on December third, two thousand thirteen, regarding the declaration of complexity in the trial phase, revisited the issue of the various effects contemplated in rule 376 of the Code of Criminal Procedure, based on the procedural moment in which that declaration occurs, by stating, insofar as it is of interest, that: "...The trial court declared the matter a complex proceeding in the resolution calling the parties to debate. **The foregoing is important because a distinction must be made regarding the application of time limits in cases declared as complex proceedings, depending on the procedural moment in which such declaration is made.** On this particular aspect, it is important to note that Article 376 of the Code of Criminal Procedure establishes the possibility for the Court, on its own motion, or at the request of the Public Prosecutor's Office, to authorize, by reasoned resolution, the application of the procedure for complex proceeding matters, when the case is difficult due to the multiplicity of facts, the high number of accused, or any form of organized crime, with a new paragraph being added to the cited rule, by legal reform of October 30, 2001, published in La Gaceta number 27 of the following November 26, **where it was indicated that when such special proceeding is ordered during the preparatory or intermediate phases, it directly affects the time limit for processing the case, specifically the peremptory one of the statute of limitations, in the sense that the reduction of the statute of limitations term to one half, provided for in Article 33 idem (sic), shall not apply.** However, when the authorization to apply the referred procedure is made at the trial stage, the cited exception is not applicable, and therefore, in these cases, the prevailing statute of limitations term in the specific case is that established for the ordinary procedure, without affecting the interests of the accused when applied reduced by one half…" (The emphasis is ours). In addition to the foregoing, it is also evident that, in accordance with Articles 148 and 444 of the Code of Criminal Procedure, the declaration of complexity in the preparatory and intermediate stages shall produce the legal effects previously alluded to, as a general rule, from the moment the resolution becomes final. This is important, because it is from that date that the effects of the complex proceeding begin to be calculated, and especially, for determining the limitation period, given that the rule is that it is not reduced, as long as the reduced limitation period of one half had not already elapsed before the declaration. Once the effects of the complex proceeding process are clear, it becomes necessary to examine the specific case to punctually determine the effects produced by the declaration of complexity in the processing of the case file (expediente), especially with respect to the calculation of the statute of limitations periods. Thus, if one observes carefully, the request for complex proceeding made by the Public Prosecutor's Office was filed before the Criminal Court of the Criminal Jurisdiction of the Treasury and Public Function, on the twenty-third day of February, two thousand six, when the case file was still in the investigation stage, since at that date the accusation and request for trial opening had not yet been prepared (See f.7432-7495 of volume XVII of the case file). In effect, the proceeding was resolved by the Criminal Court of the Second Judicial Circuit of San José, by resolution of fifteen hours, on March third, two thousand six (See f.7506-7566 of volume XVII), to become final on June twenty-third, two thousand six, the date on which the appeals filed by the parties were declared by the Criminal Trial Court of the Treasury (See f.7604-7610, 7615-7619 of volume XVII of the case file). Regarding what was resolved by the aforementioned Criminal Court, it is evident that this court weighed the scope of the complex proceeding, since the ruling analyzed, on one hand, the enormous quantity of criminal acts investigated up to that procedural moment (See f.7560 of volume XVII of the case file) while, on the other hand, the multiplicity of investigated subjects—thirteen in total—as well as that it concerned an organized crime matter, which, given the volume of evidence, entailed “...complications in the investigative work, the recognition of this singularity in the Costa Rican criminal legal system, which it is worth noting is far from being prepared to face criminal scenarios of dimensions such as those of the case in question, **is the institute of Complex Proceeding, which seeks to mitigate that imbalance in relation to ordinary proceedings and prevent large-scale criminal phenomena, such as the present one, from ending in impunity; hence, in the present case, the ordering of this procedural institute becomes necessary in order to continue it and conclude it successfully**…” (See f.7564 of volume XVII of the case file. The emphasis is ours), such that, based on that legal and factual assessment, that same jurisdictional body, in the "Por tanto" of that resolution, dimensioned the scope of the declaration of complex proceeding regarding the reduction of the statute of limitations period to one half, by determining that: "...For the reasons set forth, being appropriate as established in Article 376 and following of the Code of Criminal Procedure, THE COMPLEX PROCEEDING IS ORDERED in the present case. Setting a period of one year to conclude the preparatory investigation. **The reduction of the statute of limitations term to one half, provided for in Article 33 ibidem, shall not apply in the present matter (in accordance with what is established (sic) by Law 8164 of October 30, 2001, published in La Gaceta Number 227 of November twenty-six, two thousand one), as well as the other procedural consequences established in Article 378 ibídem...** " (See f.7565-7566 of volume XVII. The emphasis is ours), that ruling subsequently being clarified at the request of the prosecuting entity, insofar as the same Judge of the preparatory stage indicated, regarding the scope of Article 378 of the Code of Criminal Procedure, that: "...The representatives of the Public Prosecutor's Office are correct, and in order to avoid confusion, in accordance with Article 147 of the Code of Criminal Procedure (sic), the resolution of this Office of fifteen hours on March third, two thousand six, by which 'AT THE REQUEST OF THE PUBLIC PROSECUTOR'S OFFICE, COMPLEX PROCEEDING PROCEDURE IS ORDERED,' visible at folios 5309-5369, is clarified, which does not imply a modification of what was resolved, so that in the last paragraph and in the 'POR TANTO' of the same, it should be correctly read that **in view of having ordered the Complex Proceeding Procedure in the present matter, the effects provided for in Article 378 of the Code of Criminal Procedure shall apply**, and it is further clarified that when the cited resolution indicates that a period of one year is set to conclude the investigation, it refers to the rule under comment, the foregoing of course should one proceed in due time in accordance with what is established (sic) in Article 171 ibídem..." (See f.7589-7590 of volume XVII of the case file. The highlighting is ours). In view of the two preceding textual citations, it is evident that from the investigation stage, the accused and their defense counsel knew the scope of the order of complex proceeding in this particular case, its effects having been extensively developed by the Judge of the preparatory stage in the resolution in question, which became final through decision 403-06, of thirteen hours thirty minutes, on June twenty-third, two thousand six, issued by the Criminal Trial Court, acting as an Appellate Court, which declared without merit the appeals filed by the defense counsel of the accused [Nombre01 033], [Nombre01 046] (deceased), and [Nombre01 018] (See f.7703-7707 of volume XVII of the case file). From this perspective, it is clear that both the defendants and their defense counsel were aware, from the issuance of the resolution of fifteen hours, on March third, two thousand six, of the effects of the complex proceeding; however, the appeals were aimed at questioning specifically the declaration itself and not precisely its effects. In summary, even though in this particular case, in accordance with subsection a) of Article 33 of the Code of Criminal Procedure, the first interrupting act of the statute of limitations operated, that is, the reduction of the limitation period to one half at the time of taking the defendant's statement (declaración indagatoria) from most of the accused, in the year two thousand four, because the case was being processed as an ordinary proceeding, the truth is that once the case is declared complex, given that the criminal action had not been extinguished, for that reason, the statute of limitations period continues to run, without reduction, in accordance with the provisions of Article 376 in fine cited. As such, it is clear that the validity of the reducing effect on the limitation period as a result of the ordinary processing of the case file was subject to the case remaining processed as ordinary; instead, when the complex proceeding was ordered and became final in the early stages of the process, the reducing condition of the limitation periods changed, in accordance with numeral 376 cited, given that the only exception to this reasoning would have occurred in the scenario where the fatal limitation period had expired before that order, since in that scenario the extinction of the criminal action due to the statute of limitations would have occurred, that circumstance being considered a consolidated legal situation, to which the effects of the cited Article 376 could not have been applied. In this manner, the interpretation of eliminating the reducing effect of the statute of limitations period due to the taking of the defendant's statement having occurred, contemplated in subsection a) of Article 33 of the Code of Criminal Procedure, once the declaration of complex proceeding becomes final, in no way violates the principles of non-retroactivity of the law, nor can it be considered an infraction of the principle of legal certainty, since the efficacy of the rule, by virtue of Article 129 of the Political Constitution, occurs from the entry into force of the reform that added the final paragraph of Article 376 of the Code of Criminal Procedure, through Law 8146, of October thirtieth, two thousand one, published in La Gaceta No. 227, of November twenty-sixth, two thousand one, and both the factual framework accused by the prosecuting entity and the defendant's statements (indagatorias) of the accused [Nombre01 022], [Nombre 001], [Nombre01 041], [Nombre01 028], and [Nombre01 033] were presented at the end of two thousand four and the beginning of two thousand five, that is, when said law was undoubtedly in force. In addition, the final declaration of complex proceeding, dated June twenty-third, two thousand six, was issued when no consolidated legal situation existed, nor had any of the criminal charges against the various defendants expired, as shown in the following table:

Reduction of the term by half 30 months</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">14 de octubre de 2004</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">23 de junio de 2006</span></p></td><td style=\"width:78pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">14 de abril de 2007</span></p></td><td style=\"width:78pt; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">10 de setiembre de 2007</span></p></td></tr><tr><td style=\"width:55.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic\">[Nombre 028]</span></p></td><td style=\"width:84pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Three offenses of the penalty for a corruptor for aggravated corruption in the form of improper bribery (cohecho impropio) (5 years). Reduction of the term by half 30 months</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">14 de octubre de 2004</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">23 de junio de 2006</span></p></td><td style=\"width:78pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">14 de abril de 2007</span></p></td><td style=\"width:78pt; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">10 de setiembre de 2007</span></p></td></tr><tr><td style=\"width:55.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic\">[Nombre 033]</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt\"><span>&#xa0;</span></p></td><td style=\"width:84pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Instigation to the crime of aggravated corruption in the form of improper bribery (cohecho impropio) (5 years). Reduction of the term by half of 30 months</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">15 de octubre de 2004</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">23 de junio de 2006</span></p></td><td style=\"width:78pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">15 de abril de 2007</span></p></td><td style=\"width:78pt; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">10 de setiembre de 2007</span></p></td></tr><tr><td style=\"width:55.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic\">[Nombre 018]</span></p></td><td style=\"width:84pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Illicit enrichment (enriquecimiento ilícito) (3 years). Reduction of the term by half 18 months.</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">30 de noviembre de 2004</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">23 de junio de 2006</span></p></td><td style=\"width:78pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">30 de mayo de 2006. However, in the case of [Nombre01 018], the investigative statement was taken on the same day Ley 8422 came into effect, so the term was not reduced.</span></p></td><td style=\"width:78pt; border-bottom:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">10 de setiembre de 2007</span></p></td></tr><tr><td style=\"width:55.5pt; border-right:1pt solid #010101; padding:3pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt\"><span style=\"font-family:Arial; font-style:italic\">[Nombre 006]</span></p></td><td style=\"width:84pt; border-right:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Illicit enrichment (enriquecimiento ilícito) (3 years). Reduction of the term by half 18 months</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">7 de marzo de 2005</span></p></td><td style=\"width:57pt; border-right:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">23 de junio de 2006</span></p></td><td style=\"width:78pt; border-right:1pt solid #010101; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">7 de setiembre de 2006. However, in the case of [Nombre01 006], the investigative statement was taken when Ley 8422 came into effect, so the term was not reduced.</span></p></td><td style=\"width:78pt; padding:3pt 3pt 3pt 3.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">10 de setiembre de 2007</span></p></td></tr></table></div><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>&#xa0;</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; font-style:italic\">As can be observed, for none of the accused, namely,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> [Nombre01 022], [Nombre02 001], [Nombre01 041], [Nombre01 028] and [Nombre01 033] would the cause of action have prescribed,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> at the time the declaration of complex processing (tramitación compleja) was filed, for which reason one could not speak of a consolidated legal situation (situación jurídica consolidada), since between the</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> investigative statement (indagatoria) taken from each of them, on different dates in October of two thousand four, and the final declaration of complex processing, the</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> term reduced by half provided for in Article 33 of the Código Procesal Penal would not have elapsed, that is, thirty months, for the crimes of improper bribery in the form of aggravated corruption; the penalty for a corruptor for aggravated corruption in the form of improper bribery and</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> instigation to the crime of aggravated corruption in the form of improper bribery, and eighteen months for the crimes of illicit enrichment (enriquecimiento ilícito). On this point, it is clear that the declaration of complex processing, final as of June twenty-third, two thousand six, in accordance with Article 33 of the Código Procesal Penal, had the immediate effect of counting the term from the investigative statement (declaración indagatoria), but without the reduction contained in the aforementioned Article 33 cited above, but rather under the rules of Article 376 of the Código Procesal Penal, with separate mention needing to be made of the legal situation of the accused [Nombre01 018] and [Nombre01 006], insofar as they were subjected to investigative statements once Ley 8422 was in effect and therefore, by the principle of non-retroactivity of criminal procedural rules, its application was appropriate from its entry into force on October 29, two thousand four. Certainly, as was examined in judgment 2014-01392, at nine-thirty hours, of August fourteenth, two thousand fourteen, of this Sala Tercera, in which contradictory precedents issued by this jurisdictional body and those issued by both the former Tribunal de Casación Penal and the Tribunal de Apelaciones, both of the Second Judicial Circuit of San José, were unified, regarding the issue of the non-retroactive application of procedural rules in force, its normative basis lies, first of all, “…in numeral 34 of the Constitución Política, which literally states that: “No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations (situaciones jurídicas consolidadas).”. In that sense, only substantive laws have retroactive effects for the benefit of the accused, as established in ordinal 12 of the Código Penal, which states the following: “Law subsequent to the commission of a punishable act.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> If after the commission of a punishable act a new law is enacted, said act shall be governed by the law most favorable to the defendant, in the specific case being tried.” Conversely, our procedural legislation does not establish express provisions on the application over time of adjective laws.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> However, in the case of procedural laws, the one most favorable to the accused does not govern, but rather the one that is in force. This has been defined both in jurisprudence and doctrine, which are also sources of Law, because procedural norms respond to matters of criminal policy and not to a right of the person subject to justice.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Likewise, because during the exhausted time, legal situations become consolidated, such as the running of the criminal action (acción penal) in the present case, according to the acts that interrupt and suspend it, pursuant to the procedural laws in force, that is, the principle of legal certainty is safeguarded, and of course, it will also depend on the unlawfulness being investigated…” (</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Sala Tercera de la Corte Suprema de Justicia, vote </span><span style=\"font-family:Arial; font-style:italic\">2014-01392, at nine-thirty hours, of August fourteenth, two thousand fourteen). As well as the constitutional jurisprudence issued on the matter, especially, vote 0351-91, at sixteen hours, of February twelfth, nineteen ninety-one, cited in resolution 2014-01392 mentioned above, which, as relevant, states: “…the following must be added in relation to article 34 of the Carta Fundamental: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">In the case of a new procedural law, acts already performed, consolidated legal situations, as well as the effects that both generate during the effectiveness of the prior law, cannot be affected by a subsequent law</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">…</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">”(The emphasis is ours). Equally, in accordance with vote 4397-99, at sixteen hours six minutes, of June eighth, nineteen ninety-nine, also of the Sala Constitucional: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">“…public law laws that regulate formal and not substantial aspects are of immediate application to all proceedings, including those that are ongoing (…) It must be understood, however, that in the case of a new procedural law,</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> acts already performed, consolidated legal situations and the effects that both generate</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> during the effectiveness of the prior law, cannot be affected by a subsequent law (…) in procedural matters, the applicable rule normally (…) is the one in force at the time the respective procedural action is carried out…” And finally, it also settled a discretionary judicial consultation of constitutionality, formulated by the Sala Tercera, regarding the retroactive application or not of the provisions related to the statute of limitations, contained in the criminal procedural law, an opportunity in which it was argued: “…laws govern toward the future, as this is the only way to conceive of them as rules or norms of human conduct or behavior, and as an instrument to equate or equalize the treatment provided by authorities</span><span style=\"font-family:Arial; font-style:italic\">.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Thus, in principle, norms cannot govern past acts if they were not in force at the time of the event, given that the author could not have adapted their conduct in accordance with them.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> However, a past behavior may eventually be assessed with a rule enacted subsequently, a judgment that is</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> subject to a regulated power, that is, the retroactive application of a norm only proceeds by express mandate of the law, and when this does not infringe the constitutional precept established in its article 34; that is, the retroactive application of the law proceeds only when it does not affect any person, acquired patrimonial rights, or consolidated legal situations, and on the contrary, the interested party benefits from that retroactive application (…)</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Since the proceeding is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern acts that are carried out after its entry into force, and the prior law governs acts performed under its formal effectiveness, prior to its repeal, so that each act is assessed according to the law in force at the time of its performance (…)</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> In order to settle the consultation formulated by the Sala Tercera regarding the application of the principle of the most favorable criminal norm to the rules of the statute of limitations of the criminal action, one must first define what it consists of, and how national legislation regulates it.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> There are several elements that must be noted regarding the statute of limitations of the criminal action – already pointed out previously in constitutional jurisprudence – which help form an idea regarding this legal institution. First, that the regulation of the statute of limitations of the criminal action is a matter of criminal policy adopted by the State through the competent body for it, that is, the Asamblea Legislativa, such that it has the power to establish the parameters for its regulation. Second, that there is no constitutional right to a statute of limitations, but rather the right to legal certainty, to legality, to effective judicial protection, and to equality, principles that are not violated by the State as long as the deadlines established for the reporting, investigation, and prosecution of crimes set by the legislator are reasonable and defined and limited by law.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Third, that the statute of limitations is a legal instrument created to decline the</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> exercise of the punitive power of the State, which acts as a procedural sanction for the inactivity of the procedural subjects in proceedings</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> initiated or not (…) the rules of the statute of limitations of the criminal action are of an eminently procedural nature for two important reasons; first, because its regulation is located in the Código Procesal Penal, a codification that has an eminently instrumental character with regard to the application of substantive law, as indicated above; and</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> second, because in itself, the statute of limitations implies a limit on the punitive power of the State, which is applied as a (procedural) sanction as a consequence of procedural inactivity within a certain period, as analyzed, having the consequence that it entails an extinction of the criminal action, which is an institution also of a procedural nature, located in the Código Procesal Penal (…) Regarding the principle of the application of the most favorable norm, it is important to reiterate that it is an integral element of due process, and that it therefore has</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> constitutional rank, as this Tribunal Constitucional has repeatedly indicated (among others, see judgment number 0821-98, at sixteen hours fifty-one minutes, of February tenth, nineteen ninety-eight).</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> However, the clarification must be made that this principle applies exclusively to substantive law, and referred only to the accused, as regulated in international human rights treaties, specifically in Article 15.1 of the International Covenant on Civil and Political Rights (…)</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">First: If the principle of the most favorable criminal norm applies exclusively to substantive law, consequently, it cannot be applied to the rules of the statute of limitations of the criminal action</span><span style=\"font-family:Arial; font-style:italic\">. In this way, the proper course is to apply the rules of the statute of limitations based on the procedural system under which it is governed, as provided in Transitorios I. and II. of the Código Procesal Penal, provisions that are also of a procedural nature par excellence. Second: Each procedural regime must remain intact and indivisible, inasmuch as the legislator's policy in establishing a legal vision of human acts seeks uniformity, coherence, and systematicity of the institution, to achieve the purposes proposed by the ordinary legislator…” (</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Sala Constitucional de la Corte Suprema de Justicia,</span><span style=\"font-family:Arial; font-style:italic\"> vote 4397-99, at sixteen hours six minutes, of June eighth, nineteen ninety-nine, also of the Sala Constitucional. The emphasis is ours). Now, in the specific case, it must be noted that the accused [Nombre01 018] and [Nombre01 006], for having been subjected to investigative statements on November thirtieth, two thousand four, the former (Cf.f. 1166 of volume III of the file) and March seventh, two thousand five, the latter (Cf.f.1984 of volume IV of the file), the three-year prescriptive term, according to Article 62 of Ley 8422, was not reduced by half, but rather was counted in full until the next interrupting act, as it concerns the effectiveness of a procedural law, which provides one more reason not to find the prescriptive term to have lapsed. In short, upon finding a misapplication of numeral 376 of the Código Procesal Penal for the accused [Nombre01 001]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, [Nombre 028], [Nombre 022], [Nombre 041] and [Nombre 033] as well as the erroneous application of Article 62, for the co-defendants [Nombre 006] and [Nombre02 018], the challenge by the Ministerio Público is granted and the judgment of acquittal for the statute of limitations of the criminal action 2012-2550, issued in the record by the Tribunal de Apelación de la Sentencia Penal, is annulled, ordering a remand for new proceedings as corresponds in law, with this Court clearly establishing that, in this cause, the criminal action is not time-barred.” </span><span style=\"font-family:Arial\">(The emphasis is from the original). It follows from the foregoing that the Sala Tercera, on the occasion of the appeal filed by the Ministerio Público, decided on the issue submitted for examination by the defender of [Nombre01 006], concluding that the criminal action had not prescribed, because: 1) The declaration of complex processing suppressed the reducing effects of the prescriptive term associated with the procedural acts that interrupted its calculation during the ordinary procedure. 2) The procedural acts that interrupt the prescriptive term and that have been carried out after the entry into force of Article 62 of Law No. 8422, the Law against corruption and illicit enrichment in public office, are not accompanied by the reduction of the term by half. Likewise, as can be inferred from the last lines of the transcribed considerando, the cassation body ordered that the remand must proceed from that premise (understood as, that the criminal action is not time-barred). We are speaking of a decision that limits our jurisdiction, not only because it was adopted for the specific case, but because in good appellate technique, it is the reviewing body that establishes the scope of the remand it orders. Therefore, given that the claim formulated by attorney Flores Fallas was definitively resolved in cassation, it must be declared without merit. Notwithstanding the foregoing, this chamber permits itself to indicate that in effect, in the case of the accused [Nombre01 006] the criminal action is not time-barred, since regardless of the interpretation that may be made of the last paragraph of Article 376 of the C.P.P., </span><span style=\"font-family:Arial; text-decoration:underline\">the fact is that this person subject to justice was subjected to an investigative statement when Article 62 of Law No. 8422 was in force</span><span style=\"font-family:Arial\">, the Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, which provides: </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">“Statute of limitations of criminal liability.</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">The criminal action regarding crimes against the duties of public office and those provided for in this Law shall prescribe in the manner established by the applicable legislation; however, the following rules shall govern: </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">a) Once the statute of limitations is interrupted, the terms set in Article 31 of the Código Procesal Penal shall run again for a new period, without any reduction</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">. </span><span style=\"font-family:Arial; font-style:italic\">b) In addition to the grounds provided in Article 33 of the Código Procesal Penal, the criminal action may be interrupted by the declaration of illegality of the administrative function, active or omissive, or by the annulment of the administrative acts and contracts that are related to the corresponding crime, whether the ruling is made in judicial or administrative proceedings.”</span><span style=\"font-family:Arial\"> (The emphasis is not from the original). As explained in previous sections, from subsection a) of the norm it is extracted that in the case of crimes against the duties of public office and those provided for in Law No. 8422, upon the occurrence of any of the acts indicated by the Código Procesal Penal as interrupting the calculation of the prescriptive term, the counting </span><span style=\"font-family:Arial; text-decoration:underline\">begins to run again in its entirety</span><span style=\"font-family:Arial\">, which constitutes an exception to Article 33 of the recently mentioned Code. </span><span style=\"font-family:Arial; text-decoration:underline\">This is an article applicable to procedural acts performed after its entry into force</span><span style=\"font-family:Arial\">, whether these take place within a new proceeding or one that was already underway, insofar as the rules of prescription, according to the Sala Constitucional, are of an instrumental nature (in a similar sense, cf. resolutions numbers 5305-1996; 4397-99 and 351-1991, all of the Sala Constitucional).

Having said this, note that the <span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> convicted [Name01 006] of a crime of illicit enrichment, as provided for and sanctioned in article 346 subsection 3) of the Criminal Code with a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years (art. 31 subsection a) C.P.P.). Now, this accused appeared to give an investigative statement on March 7, 2005 (f. 1984 to 1986 front, volume VI), a date on which the calculation of the period was interrupted, which, by reason of article 62 in force at that time, began to run again and for the same period of three years, without any reduction, until March 7, 2008, a date by which another interrupting act had already taken place, namely, the resolution calling the preliminary hearing - September 10, 2007, f. 8,452 front, volume XX. From that day forward, the period ran again without any reduction, until September 10, 2010, a date by which it had been interrupted again, by means of the scheduling of the trial. After this, the trial court issued its judgment (No. 167-2011 of April 27, 2011) and subsequently, this court issued its judgment, with a different composition (No. 2012-2550 of December 21, 2012), and the cassation judgment (No. 2014-1847, of 11:20 a.m. on November 21, 2014) was issued, procedural acts which, under the terms of article 33 of the Code of Criminal Procedure, also interrupt the calculation of the statute of limitations period. In sum, we agree with the Third Chamber in that it concluded that in the case of [Name01 006] the criminal action has not prescribed, since the period for this to happen has not elapsed without a new ground for interruption having previously operated. For all the foregoing reasons, the ground is rejected.<span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial\"> </span> <span style=\"font-family:Arial; font-weight:bold\">XI.- </span><span style=\"font-family:Arial\">Given the existing relationship, this Chamber will resolve jointly the fourth ground on procedural grounds and point 2) of the fifth ground on procedural grounds.</span><span style=\"font-family:Arial; font-weight:bold\"> Fourth ground on procedural grounds. Violation of the rules of </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">in dubio pro reo</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">, since the court, in addition to substantially modifying the charged facts, reached a conclusion of certainty that is neutralized by reasonings in the same dissenting opinion. </span><span style=\"font-family:Arial\">Mr. Flores Fallas reiterates that the principle of correlation between the accusation and the judgment was violated, contravening what is stated in articles 9, 363 subsection b) and 369 subsection d), both of the Code of Criminal Procedure, an aspect punishable by nullity. For the appellant, the problem with the judgment lies in the reconstruction of the charged facts carried out by the trial court to attribute to the defendant a single act of illicit enrichment with a payment of a gift </span><span style=\"font-family:Arial; font-style:italic\">in three installments (tractos)</span><span style=\"font-family:Arial\">. He claims it is impossible to know which of the three gifts presented to [Name01 006] was made in consideration of his office, and to overcome this obstacle, the majority opinion reclassified the facts attributed to [Name01 006] to a single crime with three deliveries of a gift, without considering that the conduct attributed to him, of accepting a gift presented, makes the former impossible, since each acceptance of a gift constitutes an independent act and must describe all the elements of the criminal offense, which the accusation does not do. Likewise, even if all the requirements of criminality could be considered met regarding one of the acceptances of a gift presented to [Name01 006], it is unknown which of the three should be linked to fact number 201. It is added that if it were possible to link this fact with any of the three descriptions of acceptance of a gift presented, it would result that the other two acceptances that were described would be atypical, and the defendant should be acquitted of their commission. Along this line of thought, the challenger points out that the surviving conduct, if it indeed maintains the requirements of criminality, cannot be proven. The evidence shows that [Name01 006] accepted a gift that was presented to him and, therefore, it was not a matter of the materialization or delivery of a gift that had been previously offered and accepted. Having said this, it is also not possible to rule out that the gift was offered for reasons other than those provided for in section 346 subsection 3) of the Criminal Code, such as, for example, for [Name01 006] to perform an act proper to his functions, or to omit performing it, to delay it, or to perform one contrary to his functions, or else, that it was a gift for having performed or omitted an act in his capacity as a public official. It could also be that the gift was given because [Name01 006], by abusing his position, forced or induced [Name01 041] or [Name01 078] to give or promise it. The foregoing hypotheses lead us to different possibilities and criminal charges, in which the active subject may end up receiving economic advantages. Mr. Flores Fallas insists that by varying the factual framework and reclassifying the facts, the court is not applying art. 9 of the C.P.P., but rather trying to overcome the problem of the accusation that describes three independent facts that do not contain the essential elements of the criminal offense of illicit enrichment. Therefore, the </span><span style=\"font-family:Arial; font-style:italic\">in dubio pro reo</span><span style=\"font-family:Arial\"> principle was also violated. At this point, it is important to add that in the presentation of the fourth ground, the appeal is incomplete, as it appears a page is missing (see the last lines of page 17,126 front, volume XXXVI). For that reason, and given that the challenge raised by Ms. Nazira Merayo Arias reiterates that prepared by Mr. Flores Fallas, this chamber has permitted itself to complete the description by using what was said by Ms. Merayo Arias on pages 172,320 and 172,321 front. On these pages, it is insisted that the accusation did not describe the elements of the criminal offense and that therefore the trial court modified the imputed facts, affirming that it was a single gift in three installments (tractos) and not three independent crimes. Likewise, the defense reiterates that when faced with doubt, what the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> should have done was not to correct the accusation, but to acquit her client. </span><span style=\"font-family:Arial; font-weight:bold\">Fifth ground on procedural grounds. Violation of the substantiation of the judgment, by violating the principle of derivation</span><span style=\"font-family:Arial\">. The judgment incurs the defect of lack of substantiation, violating the precepts of articles 142, 363 subsection b) and 369 subsection d) of the C.P.P. According to the defense, the defect appears in several points, point number 2) being the one addressed here.</span><span style=\"font-family:Arial; font-weight:bold\"> 2) Gift paid in three installments (tractos) given that the accusation never described that behavior, but rather three independent crimes lacking elements of the charged criminal offense</span><span style=\"font-family:Arial\">. In this section, the appellant alludes to recital XII, called “Description of the conduct of the accused [Name 006]”, where the court stated: “</span><span style=\"font-family:Arial; font-style:italic\">190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name02 006] in consideration of his office a gift consisting of money, which was accepted by [Name02 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments (tractos)</span><span style=\"font-family:Arial\">”. He alleges what was already raised previously in his appeal, specifically, that the trial court considered as proven a circumstance not described in the accusation, namely, that the gift was paid in installments (tractos). As explained by the court, by virtue of the most favorable application and interpretation of the law to the defendant (article 9 of the Code of Criminal Procedure), the three independent crimes of illicit enrichment had to be reclassified into a single one. However, this explanation by the court, in addition to being insufficient, harmed [Name01 006]. The court did not assess the issue of joinder of offenses, nor did it assess the fact that the accusation had opted for the formula of “</span><span style=\"font-family:Arial; font-style:italic\">acceptance of a gift presented</span><span style=\"font-family:Arial\">”, which means that through the presentation of each gift and the correlative acceptance of the same, an independent typical conduct occurred. As facts 203, 208, and 210 of the accusation are described, a material joinder of offenses would be configured, and therefore, the description of each fact must meet all the assumptions of the offense, a requirement that the court tried to evade with the modification it made, giving a turn to the accusation that affected the right to defense, because this procedural party, in its conclusions, presented the issue as a problem of atypicality, given that the court surprisingly changed the facts in the face of what it considered a “void”. He reiterates that the Public Prosecutor's Office did not describe that the presentation of gifts was “in consideration of the office”, so each charged fact, independently, did not contemplate the essential objective elements, given that, additionally, the gift, in the manner it is described in facts 203, 208, and 210, is an element common to several criminal offenses, such as bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for a completed act, the penalty of the corrupter, and illicit enrichment. Upon verifying the absence of the description of essential elements of the criminal offense in article 346, subsection 3) of the Criminal Code, and given that these are independent facts, it should have been concluded that the three charged behaviors were atypical.</span> <span style=\"font-family:Arial; font-weight:bold\">XII.- The defense is not correct</span><span style=\"font-family:Arial\">. Regarding the allegations related to the lack of correlation between the accusation and the judgment and the inclusion in the facts charged by the requesting body of the typical elements of the crime of illicit enrichment, the appellant must abide by what is indicated in recital VIII.- of this resolution. As was explained then, those issues were heard and resolved by the Third Chamber, rejecting the allegations raised in that direction by Mr. Wilson Flores. Regarding the motive or purpose for which the gifts were presented to [Name01 006], namely, if they were, for example, in exchange for him performing an act proper to his functions or one contrary to his duties, or for not performing or delaying an act proper to his functions, or if it was as retribution for a completed act without prior promise, it suffices to reiterate that those purposes are not part of the applied criminal offense, with which it is immaterial that said purpose could not be categorically demonstrated or ruled out. In fact, if this possibility had been envisioned, it is probable that [Name01 006] would not have been charged with a residual crime but rather any other that regulated the matter in a special and precise manner. As an example, in bribery (cohecho propio), the public official who accepts the gift or its promise knows that it is intended for him to perform an act contrary to his duties, or to not perform or delay an act proper to his functions. Regardless of whether those acts are carried out, the important thing is that the official's action is tainted by this purpose, as is also the conduct of the person who delivers or promises the patrimonial advantage. The same occurs in other criminal offenses, for example, the acceptance of gifts for a completed act, or aggravated corruption. These are special criminal offenses in relation to illicit enrichment, where the configuration of one of the former may imply or comprise the commission of the latter, but not the reverse. In the case of article 346 subsection 3) of the Criminal Code, it is enough that the public official accepts the gift that </span><span style=\"font-family:Arial; font-style:italic\">was presented or offered to him in consideration of his office while he remains in the exercise of the position</span><span style=\"font-family:Arial\">, which has been considered proven here, since, as extracted from the list of proven facts, [Name01 006], in his condition as deputy chief of the Switching Department Directorate of ICE and while he remained in the position, accepted monies originating from [Name01 060] that were transferred to him through [Name01 058]. It is reiterated that the search for other additional purposes is not a subjective element additional to the intent that is contemplated in this criminal offense, making it immaterial that there is no evidence in this regard. Based on the foregoing, the ground is declared without merit.</span> <span style=\"font-family:Arial; font-weight:bold\">XIII.- Fifth ground on procedural grounds. Violation of the substantiation of the judgment, by violating the principle of derivation</span><span style=\"font-family:Arial\">. The judgment incurs the defect of lack of substantiation, violating the precepts of articles 142, 363 subsection b) and 369 subsection d) C.P.P. According to the defender, the defect appears in several points, which, for reasons of presentation, this chamber proceeds to resolve separately. </span><span style=\"font-family:Arial; font-weight:bold\">1) Conviction regarding personal costs (payment of professional fees corresponding to the Public Defender's Office) imposed on [Name01 006]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">, without evidentiary basis regarding his solvency</span><span style=\"font-family:Arial\">. Regarding the issue of costs, the judgment indicated: </span><span style=\"font-family:Arial; font-style:italic\">“Given the proven economic solvency of the sentenced parties [Name01 022]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, [Name01 001], [Name01 046], and [Name02 006], who opted for the legal advice of lawyers from the Public Defender's Office 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 process. An amount set at the sum of TEN MILLION COLONES that covers their professional performance from their appearance and until the issuance of this ruling, not the eventual remedies and other procedures that are required after its issuance. Said sum must be paid by each of the accused in favor of the Judicial Branch within fifteen days following the finality of the ruling, with the consequent seizure and auction of their assets in the event of non-compliance with this obligation”.</span><span style=\"font-family:Arial\"> In this regard, the defender argues that the trial court did not explain how it reached the conclusion of the effective economic solvency of [Name01 006], which, although it does not affect the personal freedom of the defendant, does affect his assets. </span> <span style=\"font-family:Arial; font-weight:bold\">XIV.-</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">The claim is admissible</span><span style=\"font-family:Arial\">: On pages 16,342 to 16,343 front of volume XXXIV, the trial court addressed the issue of costs, stating: “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">C)</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Personal costs</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">: unanimously, the costs of the process regarding the exercise of the criminal action are borne by the defendants. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Given the proven economic solvency of the sentenced parties [Name01 022], [Name01 001], [Name01 046], and [Name02 006]</span><span style=\"font-family:Arial; font-style:italic\">, who opted for the legal advice of lawyers from the Public Defender's Office 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 process. An amount set at the sum of TEN MILLION COLONES that covers their professional performance from their appearance and until the issuance of this ruling, not the eventual remedies and other procedures that are required after its issuance. Said sum must be paid by each of the accused in favor of the Judicial Branch within fifteen days following the finality of the ruling, with the consequent seizure and auction of their assets in the event of non-compliance with this obligation. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">The co-defendants [Name01 001], [Name01 022], [Name01 046], and [Name01 006], have participated in this process with legal representation provided by the State through the Public Defender's Office. In relation to the costs of the process, section 265 of the Code of Criminal Procedure provides as follows: “In every process, the State shall cover the expenses in relation to the accused and the other parties who enjoy the benefit of litigating without being charged for them. When the accused has economic solvency, they must pay the Judicial Branch for the services of the public defender or any other they have received. For this purpose, the procedure established in the Organic Law of the Judicial Branch shall be followed, regarding the public defender. The payment of the official translator or interpreter is excepted from this duty.” In this process, it has been proven that the three cited defendants are persons with economic solvency</span><span style=\"font-family:Arial; font-style:italic\">: they have held important highly remunerated public positions, have managed companies and bank accounts with large sums of money, have had registered in their name valuable movable and immovable assets, made multiple trips abroad, as is the case of [Name01 022]</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\"> and [Name01 046]. In the case of [Name01 001]</span><span style=\"font-family:Arial; font-style:italic\">, it has been demonstrated that they donated valuable assets such as a vehicle and cell phone to their sister [Name01 075]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, that they transferred vehicles registered in their name for millionaire sums, and that they acquired valuable assets such as a boat, cattle, agricultural equipment, a hotel, etc. Given these facts and reasons, </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">the co-defendants [Name01 001], [Name01 022], and [Name01 046] must be ordered</span><span style=\"font-family:Arial; font-style:italic\"> to cover for the State the public defender services provided to them, the Court estimating that for this item they must cover the sum of TEN MILLION COLONES EACH, which covers the professional performance of each of their defenders from their appearance until the issuance of the ruling. In accordance with section 152 of the Organic Law of the Judicial Branch, the setting of fees for the participation of the public defense is established by the judge in accordance with the obligation of the accused to pay the Judicial Branch for the services of the public defender.</span><span style=\"font-family:Arial; font-style:italic\"> </span><span style=\"font-family:Arial; font-style:italic\"> To determine the established sum, the Court has taken into consideration that Public Defender Wilson Flores, defender of [Name01 006], was appointed on August 8, 2006, according to certification on page 6449 of volume XV of the investigation file; Ms. Yamura Valenciano, public defender of [Name01 001]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">and [Name01 022], was appointed on February 27, 2008, as recorded on page 9163 of volume XXI of the investigation file, and that Mr. Hugo Santamaría, defender of [Name01 046]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">was designated as such starting July 2, 2008, as recorded on page 9255 of volume XXI of the investigation file. In addition to the above, it has also been taken into consideration that the trial stage alone, which required the uninterrupted intervention of the public defense, lasted more than one year, and that for the year 2010 the base salary of a public defender was 821,000.00 and 854,200.00 colones in the first and second semesters respectively, to which must be added a series of items such as seniority bonuses, prohibition, and others, which at least double the base salary, such that the established sum of ten million corresponds to the salary of one semester of a public defender, but is considered reasonable to be covered by the cited accused in favor of the Judicial Branch. Said amounts must be paid within fifteen days following the finality of the ruling, with the consequent seizure of assets and auction in case of non-compliance with said obligation (article 153 of the Organic Law of the Judicial Branch).”</span><span style=\"font-family:Arial\"> (The highlighting is not from the original). From the transcribed text and, particularly, from the highlighted lines, it is extracted that the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> ordered four accused to pay costs (professional services provided by the public defense), namely, [Name01 022], [Name01 046], [Name01 001], and [Name01 006]. However, to conclude that these were persons of economic solvency, it analyzed only the situation of the first three, leaving the ruling regarding [Name01 006] without any substantiation whatsoever. Thus, it affirmed that </span><span style=\"font-family:Arial; text-decoration:underline\">the three accused</span><span style=\"font-family:Arial\"> have economic resources insofar as they held important highly remunerated public positions, managed companies and bank accounts with high sums of money, and registered valuable assets in their name. Regarding [Name01 022] and [Name01 046], it alluded to their multiple trips abroad, and regarding [Name01 001], it mentioned the transfers of assets they made to their sister. It is so clear that the situation of [Name01 006] was not considered in this analysis that further down the line, the </span><span style=\"font-family:Arial; font-style:italic\">a quo </span><span style=\"font-family:Arial\">excluded his name, citing only the name of the other three defendants. It indicated: </span><span style=\"font-family:Arial; font-style:italic\">“…</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">the co-defendants [Name01 001], [Name01 022], and [Name01 046] must be ordered</span><span style=\"font-family:Arial; font-style:italic\"> to cover for the State the public defender services provided to them…”</span><span style=\"font-family:Arial\">. Therefore, the defender is correct in pointing out that the trial court did not carefully assess the case of his client, a person regarding whom it cannot be asserted, or at least not without proper substantiation, that they possess the characteristics attributed to the other accused. By way of example, note that according to the judgment itself, it speaks of an accused who was an electrical engineer at ICE and later, at the time of the facts, deputy chief of the Switching Department Directorate of that same institution, with a monthly salary approximating 400,000 colones (cfr. statement of [Name02 153], hierarchical superior of [Name 006], f. 14,809 front, volume XXX and f. 16,259 front, volume XXXIV, where the lower court alluded to this point). Likewise, the appealed judgment does not attribute to this defendant the management of companies and bank accounts with “high sums of money”, repeated trips abroad, or the registration of valuable assets, logically, beyond those related to the criminal activity being subjected to trial. In summary, given that the conviction regarding costs imposed on [Name01 006] is devoid of substantiation, the ground is declared with merit, the judgment is annulled with respect to that point, and a remand is ordered to the trial court so that, with a new composition, it may proceed to resolve what is appropriate. </span> <span style=\"font-family:Arial; font-weight:bold\">XV.- Fifth ground on procedural grounds. Point identified as number 3). In this section, the defense claims that bearer certificates were presented to the accused; however, most of them were used by [Name01 197]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">and [Name01 199]</span><span style=\"font-family:Arial\">. After alluding to proven facts numbers 197, 198, and 199, the appellant affirms that the defendant [Name01 006] was attributed with having received the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11; however, according to the documentary evidence, specifically the seizure of banking information, the person who received said certificates is Mrs. [Name01 197], who proceeded to constitute the term savings certificate No. 16102460220109801. The trial court itself, in the recital called “B.2. Delivery of second gift. Analysis of facts 208 and 209”, only describes the participation of [Name01 197]. Faced with this, the defender questions how, if Mrs. [Name01 197] abstained from testifying, one can reach the conclusion that the certificates were presented to Mr. [Name01 006]. From this point, the challenger transcribes several extracts from the ruling, related to the analysis of those facts 208 and 209, and in which the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> concluded that [Name01 197] was the person who endorsed the certificates. If this is so, that is, if a person other than [Name01 006] is identified, only by violating the principle of derivation can this accused be attributed with having received those bearer certificates. Regarding the third gift received by [Name 006], Mr. Flores Fallas states that the same situation occurs. First, the challenger proceeds to transcribe what was set forth by the trial court in its majority opinion, in the section called “B.3 DELIVERY OF THIRD GIFT. ANALYSIS OF FACTS 210” (cfr. pages 16,269 to 16,273 of the judgment, volume XXXVI), to subsequently affirm that in that analysis, </span><span style=\"font-family:Arial; font-style:italic\">“… it is striking that the bearer certificates presented and used by [Name01 199], [Name01 197], are attributed to [Name01 006] in the proven facts, but again, how does the court reach that conclusion, if the trial court itself attributes those certificates to third parties who are not [Name01 006]. To conclude, the court is not certain about the signature related to [Name01 006], stating: “certificate (Identificacion1 and its interest coupon presents on the reverse side the apparent endorsement of [[Name0 006]”, this because no comparison of the handwriting with the signature of [[Name0 006] was ever carried out…”</span><span style=\"font-family:Arial\"> (f. 17,144 front, the transcription is literal).</span> Mr. Flores Fallas understands that if the bearer certificates were presented and used by [[Nombre0 199] and [[Nombre0 197], then—in his view—it is unknown how the trial court managed to impute them to [[Nombre0 006], given that, furthermore, in the absence of an expert study, there is no certainty that the signature appearing on the endorsement of certificate</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">Identificacion1 belongs to this defendant.</span><span style="font-family:Arial; font-style:italic"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XVI.- The argument is rejected</span><span style="font-family:Arial">. The fact that the disposition of some bearer certificates was handled by [Nombre01 199] and [Nombre01 197], or that an expert study was not conducted on the signature appearing on the endorsement of certificate Identificacion12, are not circumstances that cast doubt on the trial court's conclusion that [Nombre01 006] accepted an advantage of economic content from [Nombre01 060], which was presented to him in consideration of his office. In that regard, note that [Nombre01 197] is not a person unrelated to the accused. Quite the opposite, she is his wife. [Nombre01 199], for her part, was hired to decorate a house belonging to the couple and, according to her statement, received two bearer investment certificates from [Nombre01 197] as payment for her work. Finally, although an expert did not examine the signature on the endorsement of certificate Identificacion12, the trial court's conclusion that it belongs to the accused does not violate the rules of sound criticism, since this is derived from the multiple items of evidence (of a circumstantial nature) weighed in a comprehensive and harmonious manner in the judgment. To elaborate on the arguments set forth above, we will examine the circumstantial evidence considered by the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> from folio 16,263 recto onwards. Regarding the first five investment certificates accepted by [Nombre01 006], each for $10,000, for a total of fifty thousand dollars ($50,000), plus their interest coupons for one hundred eighty-two dollars and</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> ninety-five cents ($182.95), three of which were used to purchase the Suzuki, Grand Vitara XL vehicle, series , chassis , engine H27A105387, model 2002 at the Nombre74 dealership, and the other two to be invested with the brokerage firm BCT Valores, an investment that was later liquidated with a check payable to [Nombre01 197] (proven facts 192 to 196), the appealed ruling weighed the expert reports prepared from the documentation provided by Vetrasa, which accounts for the use, by the accused [Nombre01 006], of investment certificates numbers Identificacion16 Identificacion06 Identificacion17 originating from [Nombre01 058] and whose funds originate from [Nombre01 060], to purchase from that dealership the Nombre04, Grand Vitara XLK vehicle, license plate number [Valor 010]. In addition to these reports, abundant documentation accounting for this transaction was analyzed, e.g., documents where Nombre74 recorded having received the aforementioned certificates from [Nombre01 006], as well as their respective interest coupons, the vehicle purchase invoice, and the public deed where the transfer of the vehicle to the accused was executed, a vehicle that finally ended up registered in his name (f. 16,263 and 16,264 recto). In relation to the other two investment certificates (Nos. Identificacion07 and Identificacion08 also for $10,000 each), several expert reports were examined from which it is extracted that they were invested by [Nombre01 006] in account No. 2489 with BCT Valores Puesto de Bolsa S.A., together with their interest coupons ($36.59) and a cash contribution of $8,100.00, an investment that was liquidated on August 19, 2002, with check No. 3506-6 for $29,099.06, drawn in favor of [Nombre01 197], his wife, with the apparent endorsement of the beneficiary appearing on the reverse (f. 16,264 recto and 16,265 recto). Likewise, abundant documentary evidence was examined in depth that allows [Nombre01 006] to be linked to the facts. This includes, for example, the original investment certificates and their interest coupons, where the name of [Nombre01 006] and his ID number can be read on the reverse (evidence CED01), as well as other documents provided by the brokerage firm (evidence No. 349), which contain an official communication from BCT indicating that this entity received from [Nombre02 006], on January 11, 2002, deposit certificates No. Identificacion07 and No. Identificacion08 for $10,000.00 each, and their respective coupons for $36.59; and an additional $8,100.00 was received for a total of $28,173.18 that was</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> invested in the business fund in dollars managed by BCT. Furthermore, that the investment was liquidated on August 19, 2002, for a total of $29,099.06 and check No. 3505 was drawn in the name of [Nombre01 197]. A copy of the receipt for $28,173.18 in the name of [Nombre01 006] was also attached to the respective report (f. 16,265 recto of the judgment). The same applies to the second transfer of funds to this accused. As was established as proven, [Nombre01 006] admitted three bearer investment certificates for an 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, which he later gave to his wife, who proceeded to constitute the time deposit certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days (proven facts 197 and 198). Regarding this transfer, the trial court meticulously studied all the evidence that allows reconstructing the movement of money from [Nombre01 060] to the hands of the accused, as well as the destination he gave to such funds (f. 16,265 to 16,269 recto). Although the three involved investment certificates were endorsed in favor of Banco Popular with the ID number of [Nombre01 197], and it was she who proceeded to constitute the time deposit certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98), this does not prevent establishing with certainty that the certificates in question were accepted by [Nombre01 006]. The foregoing because, as the appealed judgment rightly indicates, [Nombre01 197] is the wife of this defendant; because [Nombre01 006] received funds from [Nombre01 060] on several occasions, and had previously placed monies in the name of [Nombre01 197]; and, above all, because it was he, and not his wife, who worked at ICE and had contact with the company [Nombre01 091]. Regarding the third delivery, we have the same situation. From folio 16,269 onwards, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> gave the reasons why it considers it a proven fact that the defendant received the last investment certificates indicated there (namely, Nos. Identificacion12, No. Identificacion13, No. Identificacion14, and No. Identificacion15, 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 $100.08 (proven fact number 199). In the case of this transfer of funds, the public defender centers his disagreement on certificate number Identificacion12, indicating that it was not proven through an expert examination that the signature on the endorsement belongs to his client. In this way, he opted to disregard a whole series of evidence that was thoroughly evaluated by the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> in a comprehensive manner, evidence which, even without the proof he deems missing, allows the foregoing to be affirmed. In addition to the original investment certificate and its interest coupons, which on the reverse show an endorsement where the name of [Nombre01 006] and his ID number are clearly read (evidence CED02.5), the trial court also considered expert report No. 068-DEF and evidence No. 611, from which it is extracted that [Nombre01 006] was the person who delivered said certificate to the Brokerage Firm of BCT Valores S. A., along with interest coupons for $24.89 and cash for $1,200.00, for an investment that was liquidated on May 29, 2003, with check No. 371-9 for $11,353.86 drawn in the name of [Nombre01 197], which in turn was deposited into account No. [Valor 057] belonging to the beneficiary at Banco Popular. This was also confirmed with the banking evidence provided by BCT Valores Puesto de Bolsa S.A. (No. 349), where it is recorded that cash of $1,200.00, investment certificate No. Identificacion12, and interest coupons for $24.89 were received from [Nombre01 006], sums that were invested in the dollar liquidity fund, also recording that the cited investment was cancelled on May 29, 2003, with check No. 371 drawn to the order of [Nombre01 197], for $11,353.86. In addition to this, there is a copy of the check on whose reverse the name [Nombre01 197] and the ID number of [Nombre 197], an account number ([Valor 036]), and the cashier's stamp of Banco Popular dated May 29, 2003, are clearly read. Said account turned out to be a checking account belonging to [Nombre01 197] and which was opened at Banco Popular. These are compelling and categorical pieces of circumstantial evidence that converge on a single conclusion: [Nombre01 006] received the bearer investment certificates originating from [Nombre01 058] and funded by [Nombre01 060], a conclusion that is not modified one iota simply because there is no graphoscopic study regarding the endorsement signatures on one of those certificates. We reiterate, this certificate was issued under the same conditions as the others, they all have the same origin, and it was [Nombre01 006] and not his wife who worked at ICE and had contact, through his office, with the chiefs of [Nombre01 091]. Added to this, the leading role of Mrs. [Nombre01 197] and the absence of the mentioned expert examination regarding the endorsement also do not introduce any doubt as to what happened, since investment certificate number Identificacion12, like all the others received on this occasion, was delivered directly to [Nombre01 197] or entered her assets in other ways. As already stated, [Nombre01 006] delivered certificate Identificacion12 together with the interest coupon [adding cash from his own funds for a total of one thousand two hundred dollars ($1,200)] to BCT Valores, with the objective of making an investment in the dollar liquidity fund managed by BCT Sociedad Fondos de Inversión S.A.</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) that was drawn to the order of the wife of the accused [Nombre01 006] and was deposited into account No. [Valor 057] belonging to the beneficiary [Nombre01 197] at Banco Popular y de Desarrollo Comunal. Certificate No. Identificacion14, he delivered together with the interest coupon for $25.02 to his wife [Nombre01 197], who proceeded to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. Finally, certificates No. Identificacion13 and No. 2240020056299 were also delivered by [Nombre01 006] -together with the respective interest coupons- to his wife, who gave them to Mrs. [Nombre01 199] to pay for the decoration of the couple's residence and deposited the coupons into her account at Banco Popular y de Desarrollo Comunal (proven fact number 199). In summary, although we are talking about transactions in which [Nombre 006] does not formally appear, it is evident that these are advantages of economic content accepted by him, not by his wife. We reiterate, the person who had a relationship with ICE and with [Nombre01 091] was [Nombre01 006] and not [Nombre01 197]; furthermore, at least concerning these facts, it is not unusual for the illicit funds to end up in the bank accounts of the accused's wife, or at her disposal. Finally, regarding the investment certificates that [Nombre01 199] endorsed and deposited into her account, in addition to abundant documentation, there was the testimony of this person, who categorically indicated that she received them from [Nombre01 197], as payment for the decoration services of a residence that the couple (meaning, [Nombre01 006] and [Nombre01 197]) built in Turrialba. In summary, it is evident that the judgment is extensively substantiated. Not only because it covers all the evidence, but because it derives from it, in accordance with the rules of correct human understanding, that [Nombre01 006] accepted the gift delivered to him by [Nombre01 041] and by [Nombre02 028] himself, </span><span style="font-family:Arial; text-decoration:underline">a retribution that was established as proven and was qualified by the Third Chamber as </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">a single one in three installments</span><span style="font-family:Arial; text-decoration:underline">. This court, which distances itself from the discussion as to whether it was one gift in three installments, or rather, three gifts presented and admitted, since this issue was settled and defined in cassation, and thus this court lacks jurisdiction to address it</span><span style="font-family:Arial">), harbors no doubt whatsoever regarding the receipt of said funds by the defendant. Not only was it proven that the investment certificates were generated with money from [Nombre01 060] that entered the account of [Nombre01 058]., but also that they came into the hands of [Nombre01 006] and he proceeded to dispose of them. In some cases, directly, e.g., when buying a vehicle, or when investing in BCT Valores Puesto de Bolsa S.A.; in others, through his wife, who was the one who disposed of the assets, whether by depositing them into her accounts, or by paying for other services contracted by the couple from third parties (thus, to [Nombre01 199]). But in any case, the defense's thesis that third parties are the ones who dispose of the investment certificates and that, therefore, there is no link whatsoever between these and the accused, is dismissed. For the reasons stated, the claim must be rejected. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XVII.- Fifth ground regarding form. 4) The Court concluded that [Nombre01 006] signed a uniqueness certificate (certificado de unicidad), without the document that allows deriving such an affirmation being incorporated.</span><span style="font-family:Arial"> According to the appealed ruling, the accused [Nombre01 006] signed a uniqueness certificate (certificado de unicidad). For the court, even though the board of directors had the final say, the truth is that the uniqueness certification had significant relevance, as it was based on specialized technical criteria, and there also existed confidence in the work [Nombre01 006] performed, as stated by [Nombre01 153], his direct supervisor. For the complainant, such assertions are questionable, as there is no document whatsoever that allows its demonstration. He argues that the point is basic, since the person who signed the certificates was [Nombre01 153], making his testimony potentially suspicious. In that vein, his statement could not be used to conclude that [Nombre01 006] signed that document. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XVIII.- The claim cannot prosper.</span><span style="font-family:Arial"> Contrary to what the defender argues, the trial court thoroughly evaluated abundant evidence to affirm the foregoing, and the defect alleged is not present. As is extracted from folio 16,273 onwards, [Nombre01 006] was the head of the Switching Department of ICE. As such, his many functions included determining the needs that had to be met in switching matters. He had a team of technicians under his command, who determined the equipment needs, and based on this, a document was prepared which, according to [Nombre01 156], became a requirement, with [Nombre01 006] being responsible for signing the certification of the supplier's need. Subsequently, he took the award recommendation to the ICE Board of Directors so that it could definitively resolve whether to convene the tender or not. This is why, according to the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial">, the uniqueness certificate (certificación de unicidad) signed by this accused was relevant, as it was based on specialized technical criteria, and there also existed, as noted by [Nombre01 153], confidence in his work. The ruling adds that [Nombre01 006] was also in charge of setting up equipment, executing contracts, and evaluating performance, making him a key official within the award procedure, both internally at ICE and for companies intending to participate. There were several direct contracts assigned to [Nombre01 091] in which this defendant participated, of special interest Contract No. 112765, for the expansion of the [Nombre01 091] exchanges, which was awarded to that company in session No. 5404 of May 14, 2002, with [Nombre01 006] being the administrator of that contract, valued at $109,457,401.22. For the majority vote, it was based on the uniqueness certificate (certificación de unicidad) that the corruptors presented a gift to [Nombre01 006], and the public defender claims that said certification was never incorporated into the process and that, therefore, there is no document whatsoever that allows demonstrating what was stated, especially since [Nombre01 153], for signing the cited certifications, should have been considered a suspicious witness, whose account the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> could not rely on to conclude that [Nombre01 006] signed the cited certification. For this chamber, as was already anticipated at the beginning of this considering, the challenger's appreciations are erroneous. In the first place, the judgment cited documentary evidence from which the role [Nombre01 006] played in direct contract No. 112765 is extracted. We speak of evidence No. 740, consisting of report GESE 1530, 6053-34633-2005, of July 11, 2005, from the Support Area, Security Management, regarding the cited agreement. Based on the documentation related to this contract, this report was prepared which, relevantly, states: </span><span style="font-family:Arial; font-style:italic">“Upon observing that the documents for the 'Supplier Uniqueness Certification and Technical Justification of the Project for Acquisition of Equipment and Services for expansion of the [Nombre 091] exchanges</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">1000 E10 for the period 2002-2003', were signed by Eng. [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">as [...], Eng. [Nombre02 153], who served as Director of the UENDEP at the time the mentioned documents were signed, was consulted as to whether Eng. [Nombre01 006] had his authorization to sign in that capacity. In this regard, Eng. [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">stated that he thought that since Eng. [Nombre01 006] was the contract administrator, he could sign the authenticity formula. He also affirmed that due to a trip abroad, in connection with his duties, he left Eng. [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">in charge, from the [...]”</span><span style="font-family:Arial"> (fols. 3,632 and 3,633 recto, volume IX, which we have reviewed). This evidence was analyzed in the judgment, concluding that contrary to what the defense of [Nombre01 006] estimated, it was legitimate, at least in the section pertaining to the cited contract, and that it is therefore useful to establish </span><span style="font-family:Arial; font-style:italic">“…what documents were collected, the development this contract underwent in the different ICE departments, and the coordination action exercised by the Switching Process, with the provision of different data related to each of those actions and the documents that were signed by the accused [Nombre01 006], who served as [...].”</span><span style="font-family:Arial"> (f. 15,264 recto, volume XXXI). Likewise, on folio 16,258 recto of volume XXXIV, reference was made to the contract related to Contract No. 112765, visible in annex 10 of documentary evidence No. 598 (Report 297-DEF-540-04/05) and which relates to the expansion of the [Nombre 091] 100 E 10 B exchanges. As this chamber verified through examination of the cited documentation, the nineteenth clause contains the appointment made by ICE of engineer [Nombre02 006] as general contract administrator, with the obligation to </span><span style="font-family:Arial; font-style:italic">“…supervise this contract, coordinate everything related to its correct execution, and ensure the perfect fulfillment of each and every one of the obligations indicated in its clauses, as well as manage and facilitate the coordination of all technical and administrative aspects required…” </span><span style="font-family:Arial">(p. 24 of the contract, visible in annex 10 of report No. 297-DEF-540-04/05, docket No. 2, evidence No. 598). Therefore, it is not true, as the defense claims, that the intervention of [Nombre01 006] was derived exclusively from the statement of [Nombre01 153], a person who, in any case, provided a declaration that adds very little to the foregoing. This witness indicated that [Nombre01 006], then coordinator of the switching area, was responsible for determining the needs present in that area; that both of them used to meet with suppliers; that the accused and his group coordinated matters related to public tenders and bid studies; that it was he (meaning, [Nombre01 153]) who, as boss, appointed [Nombre01 006] as project coordinator; that if he left the country, he left an official in charge, for example, the accused; and that the accused was in charge of the technicians (f. 14,807 to 14,811 recto, volume XXX). Now, while it is true that from report GESE 1530, 6053-34633-2005 (evidence No. 740, visible in volume IX and particularly, folios 3,631 and 3,632 recto), it is extracted that some documents related to the referred contract were signed jointly by [Nombre01 153] and [Nombre01 006], this does not change the fact that it was the defendant who signed both the supplier uniqueness certificate (certificación de unicidad de proveedor) and the project's technical justification (justificación técnica del proyecto) and the award recommendation (recomendación de adjudicación) (in fact, the first two documents were signed only by [Nombre01 006] and the last jointly with [Nombre01 153]). It is important to add that proving [Nombre01 006] signed the mentioned certification does not require having the original document, as the appellant seems to understand it, because our legal system follows the principle of freedom of evidence, according to which any circumstance or fact of interest for the resolution of the case can be proven by any permitted means of proof. In this matter, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> not only had reliable documentation that yields that conclusion (namely, the cited report, which was prepared, as indicated on folio 3,630 recto of volume IX, based on the file located in the ICE Procurement Department), but also the statement of [Nombre01 153] which, in general terms, confirms what is set forth there. Likewise, there were other evidentiary elements that allow understanding that the gift [Nombre01 006] received was in response to his role in the institution; we refer to the fact, otherwise undeniable, that the monies originated from [Nombre02 060], a supplier company to the ICE that was also the beneficiary in the contract that has been cited, and to the fact that [Nombre01 006] had no employment or contractual ties with [Nombre01 091], hence there being no legitimate motive whatsoever for him to have received those monies. While it is true that it was not charged nor proven that this economic advantage was admitted considering specific purposes (which is specific to certain criminal offenses, such as bribery, acceptance of gifts for a completed act, aggravated corruption, etc.), it was proven that he admitted the funds that were presented to him in consideration of his office and during its performance, which is sufficient for illicit enrichment (enriquecimiento ilícito) to be established. Finally, it is important to add that even if one admits the possibility that [Nombre01 153] may have had some role in these events (the hypothetical nature of the statement is emphasized), since unlike [Nombre01 006], [Nombre01 153] was not charged with having received money from [Nombre01 060], this does not exclude the commission of the crime by the indicted party here. For all the foregoing reasons, the reproach is dismissed.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XIX.- Fifth ground regarding form. 5) Forfeiture (comiso) of the Nombre04 Grand Vitara XL vehicle, license plate . [Valor 040].</span><span style="font-family:Arial"> The court did not state the reasons why it ordered the forfeiture (comiso) of this automobile, which constitutes a defect in the ruling. Regarding the harm caused by this defect, the complainant states: “…</span><span style="font-family:Arial; font-style:italic">by not providing the legal reasons, it cannot be shared that the assets are affected without any basis; a basis would allow reaching a different conclusion, because the purchase of the vehicle cannot be related to the crime with which [Nombre01 006] is charged</span><span style="font-family:Arial">…”. (F. 17,145 recto). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XX.- The ground must be rejected. </span><span style="font-family:Arial">Although in fact, the court ordered the seizure of the Nombre04 Grand Vitara XL vehicle, license plate number [Valor 010], indicating only that it was proven to be the product of the crime, </span><span style="font-family:Arial; font-style:italic">“as it was acquired with the gifts that the accused received”</span><span style="font-family:Arial"> (folio 16,285 recto, volume XXXIV),</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> this does not mean that the cited decision lacks substantiation, since in other sections of the judgment, specifically from folios 16,261 to 16,264 recto of volume XXXIV, it was extensively explained why it was concluded that the automobile is a profit derived from the crime committed. As is evident from those folios, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> weighed a significant amount of expert and documentary evidence from which it is extracted with absolute certainty that the vehicle was purchased by the accused [Nombre01 006] with three bearer investment certificates whose funds originate from [Nombre01 060] and which were delivered to him through [Nombre01 058]. In fact, it was [Nombre01 006] who delivered the three investment certificates, as well as their interest coupons (which added up to a total of $30,109.77), to the company Nombre74 to acquire the vehicle in his name: </span><span style="font-family:Arial; font-style:italic">“According to Expert Report 438-DEF, documentary evidence No. 610, section 4.3, folio 6 and following, from the analysis of checking account Nº [Valor 012]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre01 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">.

at Cuscatlán International Bank, on December 6, 2001, said account showed a balance of $1,055.37 and was funded on December 7, 2001, with a transfer of $800,000.00, originating from the company [Name 060]., which provided the funds for check No. 301 for $755,123.00 drawn on December 10, 2001, and used to purchase several investment certificates, issued by Banco Cuscatlán de Costa Rica S. A., among them those numbered Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer for an amount of $10,000.00, with a maturity date of January 11, 2002, and an interest coupon of $36.59.

The transfer made by [Name01 060] to [Name 058]. on December 7, 2001, for $800,000.00 and the balance that existed in the account of [Name01 058]. as of that date, is a matter that has already been analyzed when reference was made to all the transfers made by [Name01 060] to [Name01 058]., to which we refer. For this analysis, it suffices to cite the account statement on folio 57 of documentary evidence No. 106, which corresponds to current account No. [Value 012] of [Name 058]., at Cuscatlán International Bank and which reflects the credit for the $800,000.00 resulting from the transfer of funds referenced in the preceding fact, as well as the debit for $755,000.00 for the issuance of check No. 301. Said evidence was seized at the central offices of Banco Cuscatlán following a prior request and order to lift bank secrecy (documentary evidence numbers 90, 91, 105, and 106).

According to documentary evidence No. 132, with the funds from check No. 301, totaling $150,000.00, a multiple investment was opened from number 224-002-003717-0 to number 224-002-003731-6, among which, therefore, are the investment certificates numbered Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer for an amount of $10,000.00, with a maturity date of January 11, 2002, and an interest coupon of $36.59. (cf. Diagram of the certificates acquired on folio 1, document of the investment opening on folio 2, where it is noted that the invested funds come from check No. 301 and also the characteristics of the issued securities and their numerical sequence, photocopy of check 301 on folio 3, and the 15 original certificates among which are those cited above, with their respective interest coupons for $36.59 each). Documentary evidence No. 132 was confiscated at the central offices of Banco Cuscatlán, following a prior request and order to lift bank secrecy (cf. documentary evidence numbers 90, 91, 113, and 132).

The accusation states that between December 10, 2001, and January 10, 2002, the investment certificates numbered CED03 CED06 CED04 Identificacion07 and Identificacion08 were presented to the accused [Name01 006] by [Name 041] and [Name02 078], being accepted by the accused [Name01 006], who endorsed and delivered the first three to the agency Nombre74 for the purchase of a vehicle. If one observes the referenced original certificates, found on folios 4, 6, and 8 of documentary evidence No. 132, it is determined that they do not bear any endorsement from the co-accused [Name01 006], but only a legend stating: "Only for deposit into account No. [Value 037] of Vetrasa" and a cashier's stamp dated January 15, 2002, from Banco Interfin; the same applies to the interest coupons related to those certificates (folios 5, 7, and 9 of the same evidence). The only certificates that bear an endorsement from [Name01 006] and his respective identification number are numbers CED04 and CED05, visible on folios 10 and 12 of documentary evidence No. 132, an endorsement that also appears on the respective interest coupons and a cashier's stamp on all documents dated January 11, 2002. It can be inferred from Expert Report 438-DEF (folio 7) that from the documentation provided by Nombre74, it can be determined that the cited certificates, related to said vehicle sales agency, were received by [Name01 006] and were used for the acquisition of a Suzuki vehicle, license plate [Value ]. The foregoing is indeed confirmed through the analysis of documentary evidence No. 368, located on folios 6769 to 6775 of Volume XVI of the investigation file and folios 1920 to 1939 of Volume VI of the investigation file. This evidence includes the certification signed by Nombre76, accountant of Nombre74 S. A., dated March 4, 2005, who certifies that in the offices of said company is the file for the vehicle license plate [], Name04 that was acquired by Mr. [Name01 006], identity card number [Value 038], a file in which the original invoice, copies of the certificates used to pay for the vehicle, and a copy of the receipt for the certificates are located. Also provided was a photocopy of a money receipt issued by Vetrasa for $30,109.77, in the name Nombre01 of [Name01 006] and dated January 15, 2001; a photocopy of a document dated January 4, 2002, where Nombre74 certifies having received from [Name01 006] for safekeeping until the maturity date, certificates numbered CED06, CED05, 224-002-003718-9 for $10,000.00 each, and three interest coupons for $36.59 each, all of which total $30,109.77; a photocopy of an invoice from Nombre74 dated January 10, 2002, concerning the sale of a Grand Vitara XL vehicle, year 2002, blue, engine H27A105387, chassis No. , listing [Name02 006] as the buyer for a price of $31,000.00, the noted characteristics being those described in the accusation regarding the vehicle acquired by the accused [Name01 006]. Finally, there is also a photocopy of public deed No. 233 prepared by Notary Public Mario Antonio Morelli Astúa, in which the transfer of said vehicle is made from Nombre74 to [Name01 006], which was finally registered in his name Nombre01 as shown in the photocopy of the certification from the National Registry that is part of the evidence analyzed. From the foregoing evidence, it can be concluded with full certainty that indeed, between December 10, 2001, and January 10, 2002, [Name01 006] received the investment certificates numbered Identificacion16 Identificacion06 Identificacion17 and delivered them to the agency Nombre74 for the purpose of acquiring in his name Nombre01 the Suzuki, Grand Vitara XL vehicle, series , chassis , engine H27A105387, model 2002, as described in accused fact No. 204 ...".

As is extracted from the preceding text, the alleged defect does not exist, for the judgment sets forth a detailed analysis of the evidentiary elements that allowed the a quo to link the motor vehicle whose forfeiture is ordered with the crime of illicit enrichment. For the reasons stated, the claim is rejected.

XXI.- For procedural economy, this chamber will jointly resolve the sixth ground on procedural grounds filed by attorney Wilson Flores Fallas, and points one through six of the sole ground raised in the appeal filed (jointly) by [Name01 001], [Name01 028], [Name01 041], and [Name01 018], in their personal capacity. Sixth ground on procedural grounds of the cassation appeal filed by attorney Wilson Flores Fallas. Admission of evidence obtained in violation of fundamental rights. Attorney Flores Fallas reiterates that the judgment violates the principle of correlation between accusation and judgment, pursuant to articles 24 of the Political Constitution, 175, 176, 363 subsection b) and 369 subsection d) of the C.P.P., and 29 of the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications. 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, which consists of 420 folios, attorney Flores Fallas states that to dispense with the legal formalities established as a guarantee of a fundamental right, the consent of Mr. [Name01 158], legal representative of [Name01 215], is not sufficient. In this regard, he argues: "… In our legal system, the right to privacy is a fundamental right, enshrined in articles 23 and 24 of the Political Constitution, and recognized in International Human Rights Law (article 11, paragraph 2 of the American Convention on Human Rights, article 17 of the International Covenant on Civil and Political Rights). Article 24 of the Constitution establishes: 'The right to privacy, freedom, and secrecy of communications is guaranteed. The private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, a law, the approval and amendment of which shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall determine 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 jurisdiction. 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 the investigation of which the use of this exceptional power may be authorized and for how long. It shall also specify the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions supported by this provision must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority. The law shall determine the cases in which competent officials of the Ministry of Finance and the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to audit the correct use of public funds. A special law, approved by two-thirds of the total number of Deputies, shall determine which other organs of the Public Administration may review the documents that said law indicates in relation to the fulfillment of their regulatory and supervisory powers to achieve public purposes. It shall also indicate in which cases such review is appropriate. Correspondence that has been stolen and information obtained as a result of the illegal intervention of any communication shall have no legal effect.' The foregoing allows us to point out that Article 24 of the Constitution 'grants constitutional recognition to the right to privacy represented by the inviolability of private documents and written, oral, or any other type of communications of the inhabitants of the Republic; it provides for the possibility of intrusions into the right to privacy by the Courts of Justice, when it is absolutely indispensable to clarify matters submitted to their jurisdiction. The intrusions must be ordered by reasoned resolutions, whose application and control is exclusive and non-delegable by the judicial authority; the type of authorized intrusion is the registration, seizure, and examination of private documents and the intervention of any type of communication; it delegates to the ordinary legislator, through a law approved and amended by two-thirds of the deputies of the Assembly, the definition of the cases in which the Courts of Justice may order the authorized intrusions into the right to privacy and to define the crimes in relation to which the intervention of communications is appropriate and for how long. It determines that stolen correspondence and information obtained from illegal communication interventions shall have no legal effect.' Dissenting opinion of co-judge Camacho Morales. Therefore, consent is not sufficient to dispense with compliance with the legal formalities established as a guarantee of the fundamental right, both at a constitutional and legal level, and whose compliance is unavoidable in all cases, as these are formalities that constitute a guarantee of fundamental rights, are matters of public order, and are not at the disposal of private individuals, a point on which doctrine and constitutional jurisprudence agree. Thus, said consent does not meet the minimum requirements to operate as a ground for justification and eliminate the criminal nature of the Public Prosecutor's Office's action. Admitting the cited evidence would allow the State to benefit from actions of its officials that delegitimize the Costa Rican criminal justice system. Given that from this means of evidence, an element of proof is obtained that provides information linking [Name02 058]. with Cuscatlán International Bank and regarding international transfers from [Name02 058]. in favor of accused persons in this case and from [Name01 060] in favor of [Name01 058]., the evidence derived from it, including evidence against [Name01 006], would also be illicit, and Nombre02 requests that it be declared …" (folios 17,146 to 17,148 front, volume XXXVI, the transcription is literal). Regarding the harm caused, he affirms that the evidence he deems illicit allowed for obtaining information that links [Name01 058]. with Cuscatlán International Bank "… and regarding international transfers from [Name01 058]. in favor of accused persons in this case and from [Name01 060] in favor of [Name02 058]." (F. 17,148 front), so the evidence derived from it against [Name01 006] would be illegal, and he requests an acquittal in his favor.

Cassation appeal filed jointly by [Name02 001], [Name01 028], [Name01 041], and [Name01 018], in their personal capacity. In the brief visible on folios 17,264 to 17,278 front of volume XXXVI, certified by attorney José Miguel Villalobos Umaña, the accused [Name01 001], [Name01 028], [Name02 041], and [Name02 018], appeal judgment No. 167-2011 cited repeatedly, based on articles 369, 458 et seq. of the Criminal Procedure Code. As the sole ground for cassation, they claim an infringement of article 369 subsection j), "because the judgment was issued in violation of due process, by substantially basing the convictions on evidence illicitly obtained and illegally introduced into the debate and therefore subsection c) is also violated by the illegal admission of an evidentiary element into the process." After claiming the violation of due process and the right to defense enshrined in articles 39 and 41 of the Political Constitution and article 8 of the American Convention on Human Rights, and Nombre02 cite Constitutional Chamber resolution No. 1739-92, of 11:45 a.m. on July 1, 1992, the appellants state that: "… the Chamber points out what illegitimate evidence is, its formal treatment, and its assessment, for which it has established that said illegitimate evidence must be denied ALL PROBATIVE VALUE IN ITSELF, even noting that there seems to be no discussion on this and it is necessary to SUPPRESS IT FROM THE PROCESS, AS IF IT HAD NEVER EXISTED. But all evidence that, without being illegitimate per se, was obtained by means of it must also be excluded. The principle of hypothetical suppression also applies, in the sense of completely excluding it and resolving the matter as if it had not existed… There are no exceptions, no limitations, no constitutional loopholes, nor justifications or excuses for non-compliance: illegitimately obtained evidence not only has no value on its own, but it is also invalid in its reflective effect and nullifies others that derive from it, that is, one cannot excuse that even if it is not useful on its own, it could be useful when combined with another, since this would allow indirectly violating what the Law directly prohibits violating. The admission of a means of evidence illegitimately into the process is also a defect in the judgment that motivates or justifies the cassation appeal, under subsection b) of article 369 of the CPP. Since the applicability of the then subsection 3) of Article 400 of the then Code of Criminal Procedure, the Third Chamber had indicated that this was a serious defect that justified the nullity of the judgment, ratifying unanimous doctrinal positions that Nombre02 determined it and developing the concept of hypothetical suppression subsequently indicated by the Constitutional Chamber. (See in this regard vote of the Third Chamber 047-92 of 11:00 a.m. on January 23, 1992). What is interesting about this binding constitutional position is that it remains valid despite the passage of time and is constantly reinforced despite changes in the composition of the Constitutional Chamber. One of the most important votes is 2529-94, which developed the independent source doctrine, to which we will return later, which establishes that spurious or illegitimate evidence can be assessed if and only if IT ALSO ORIGINATES IN ANOTHER AUTONOMOUS ELEMENT GATHERED DURING THE INVESTIGATION AND PRIOR TO THE CONSTITUTIONAL VIOLATION …" (F. 17,265 front). For the appellants, it is important to allude to the general right to legality, given that in criminal procedural matters, "violations of mere legality become, by virtue of the preceding principle, violations of due process, of constitutional rank, in order to Nombre02 have full guarantee of the material and formal efficacy of its pronouncement…" (F. 17,266 front). After citing articles 180 to 184 of the Criminal Procedure Code, which they relate to article 11 of the Political Constitution, they affirm that not only must judges and prosecutors respect the laws regarding the obtaining, admission, and assessment of evidence, but also that means of evidence have no value whatsoever if they were not obtained by a lawful means: "The legislator, both ordinary and constitutional, is clear that the validity of evidence must be twofold: both in the manner it is obtained and in the mechanism by which it is admitted into the process. And this must be emphasized against absurd and treacherous theses prone to paying homage to dictatorship and investigative totalitarianism, which propose that a valid admission legitimizes illicitly obtained evidence… the majority Judges lean towards this fascistoid position, contrary to our democratic traditions and sound legal hermeneutics, and only possible in the (in)justice of the kadi or the kadiya. If evidence was illegally obtained, it is worthless to admit it validly, since it has damaged the Law, judicial ethics, the accused, and the Constitution that is sworn to be upheld..." (f. 17,266 front). Having said this, they argue that the conviction was based on illegitimately obtained evidence, which cannot be cured or corrected, substituted, or endorsed by other autonomous, prior, or independent evidence, given that it is also not a case of the exceptions contemplated in jurisprudence, some of which are questionable from a constitutional perspective. They then specify each of those evidentiary elements whose obtaining and admission they challenge.

First. Evidence 588, which contains the bank information from Panama for the accounts of the company [Name01 215]. "… At this point, we will initially endeavor to demonstrate that the evidence numbered 588 was obtained in a maliciously illegal manner, that the Prosecutors and the Judges knew this, and that, despite this and acknowledging its illegality and resolving a similar case differently, in the present case they proceeded to validate said illegality. The Judges themselves clearly summarize the argument of [Name01 018]'s defense on Folio 890, regarding what on Folio 892 they term a request for a declaration of PRIMIGENIAL ILLICITNESS THAT WOULD CAUSE THE EXCLUSION OF ALL EVIDENCE DEPENDENT ON IT. Evidence 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes on September 6, 2004, from that country and by the Attorney General's Office to the Prosecutor's Office on the 10th of the same month, as expressly recognized on Folio 8335 of the record. A certified copy of a different judicial file was brought, which in itself we will not question in this appeal, because that matter is discussed in another. The point here is to determine whether that Judicial Assistance, as evidentiary material, was validly obtained or not, for purposes of its assessment in this case. The majority Judges set out this discussion from Folio 889 to 952 of the judgment, and it must be acknowledged that they dedicated commendable effort to attempting to demonstrate the error of the technical defense of [Name01 018] that questioned that obtaining and admission, but as stated before, Nombre11 effort does not generate correct results and consequences. On Folio 889, the criterion of [Name01 018]'s defense is summarized: that evidence is null because the bank information in Panama was obtained without an order from a national Judge in Costa Rica to lift bank secrecy. On this matter, the Judges' zigzags are anthology-worthy: At the end of Folio 893, they dare to indicate that the determination of whether said documentation was obtained without a Judge's order is beyond their jurisdiction and that they cannot and must not consider that evidentiary material, the circumstances of its collection, or the assessment of its lawfulness or unlawfulness. And we say this is anthology-worthy since almost from the beginning of this trial they ruled on this, acknowledged that this evidence was obtained through a lifting of bank 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 drafted by Judge García Aguilar at 8:00 a.m. on May 14, 2010. There it is stated that the evidence coming from Panama is NULL: from Folio 34 to 70 of that resolution, the arguments are outlined for why evidence coming from Panama consisting of bank evidence gathered without a court order cannot be permitted to be valid, and therefore the decision of the Judge at the preliminary hearing to exclude it is upheld. The Judges already know that the bank evidence from Panama was obtained without an order from a national Judge, but they refused at that time to resolve an express request by [Name01 018]'s defense to exclude evidence 588 and left this matter pending for the judgment, and Nombre02 it is not a request that is either untimely or contrary to the principles indicated on Folio 894. But this thesis of the Judges loses importance when they themselves accept that THEY ASSUME THAT THIS EVIDENCE 588 WAS GATHERED WITHOUT A COURT ORDER TO LIFT THE PRIVACY OF THE DATA. (See Folio 894, line 2 et seq.). Thus, given the silent admission of such an element by the Prosecutor's Office, the proper course, without further preamble and without needing to continue along this line, is to consider that the bank evidence from Panama was illegitimately obtained because it lacked a court order …" (f. 17,267 and 17,268 front).

Second. Bank information from Panama deriving from evidence 588 and which contains, for the first time in the investigations, a reference to the company [Name 058]., without there being any independent and prior evidence in this regard. On the occasion of the illegal lifting of bank secrecy for the accounts of the company [Name01 215], information on financial movements by a company unknown in the case to date is obtained. The appellants recall that evidence 588 is a certified copy "of the judicial assistance originating from the CAJA-FISCHEL case", which was processed in a separate file, "so the appropriate conclusion is easily drawn that its review and reading were done to locate information for that other case." They add that from Expert Report 428-DEF-443-05-05 of the Judicial Investigation Agency, evidence No. 618, the information coming from Panama that contains information about transfers from a company called [Name 058], unrelated to the CCSS-Fischel case, to the company [Name01 215], which was indeed being investigated in that case, is extracted. It is Nombre02 how the Public Prosecutor's Office learns of the company [Name 058]. That is, from the evidence that came from Panama in a spurious manner, as already stated in the preceding subsection. The illegal information, they add, arrived in Costa Rica at the beginning of September 2004 and was received at the Prosecutor's Office on September 10, 2004, at 2:00 p.m., as recorded on folio 895 of the judgment. Information was requested about [Name01 215], not about [Name02 058], and as of September 10, the Prosecutor's Office learned of the existence of this company and initiated an investigation into it.

Before September 10, there is no reference whatsoever to [Nombre01 058], so the investigation of case Nombre64 091] began with the information obtained from Panama's evidence 588, which is null and void because it was obtained without an order from a competent judge and therefore must be excluded, Nombre02 as must any element derived from it. The appellants state that the suspicions about the company [Nombre01 058] are not supported by independent and autonomous evidence separate from the aforementioned, which would allow the illegality of that information obtained from evidence 588 to be cured. According to the trial court, such evidence does exist, namely, journalistic sources: evidence 592.9 called MONITOREO DE PRENSA ESCRITA DEL 9 AL 31 DE DICIEMBRE DE 2004, in reference to publications from April 21 and 27 of that year. However, these make no reference whatsoever to the subject under discussion. The existence of a company called [Nombre 058] cannot be inferred from these notes. There are only references to a [...] Nombre25 to [Nombre 018]. At folio 935, journalistic notes from April 2004 are cited, which appear in evidence 529.9 and 682.1. Nevertheless, the first one discusses some issues regarding Taiwan and the second refers to “journalistic elements” from April 2004, with no mention of [Nombre01 058]. Nor does the publication cited at folio 936 provide the information that the judges refer to. In that note from September 28, no allusion is made to [Nombre01 058]. Furthermore, by that date the banking information illegally obtained in Panama had already arrived, so this evidence is not prior, nor is it autonomous, since by virtue of the illegal banking evidence, information had been requested on the accounts of [Nombre01 058] inside and outside the country, so it is evident that the press had received <span style="font-family:Arial; font-style:italic">“derivative” </span><span style="font-family:Arial">information </span><span style="font-family:Arial; font-style:italic">to “solicitously contribute to the investigation”</span><span style="font-family:Arial">. The complainants add that the interview with Mr. [Nombre01 213] on September 27 is not prior to the illegal evidence coming from Panama. According to the appealed judgment, it was the banking data that caused new directions in the investigation. That is, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> court recognizes that it was the illegal evidence that generated the obtaining of the subsequent evidence. Finally, if the judges admit that the reports are subsequent to the banking information received, although theoretically they could well be independent, they can never be prior. </span><span style="font-family:Arial; font-weight:bold">Third. The action of Mr. [Nombre01 158], in writing and verbally, does not have the “magic” to suppress the invalidity in the obtaining of the banking evidence from Panama</span><span style="font-family:Arial">. According to the trial court, should the evidence from Panama be considered unlawful, its use in the proceeding would be viable because Nombre02 the account holder, Mr. [Nombre01 158], authorized it. In response to this, the appellants reiterate that the evidence was obtained without a judicial warrant and entered the country on September 10, 2004. Based on this evidence, orders were made to lift the bank secrecy of companies such as [Nombre02 058], the defendants were charged, and precautionary measures were requested. And it is not until May 17, 2010, that Mr. [Nombre01 158] purports to authorize the obtaining and use of the available information regarding the bank account corresponding to the company [Nombre 215], as the judges state at folio 896 and as recorded in evidence 759, at folio 13,449 of the case file. Regarding this authorization, the defendants state that what is intended is to give “</span><span style="font-family:Arial; font-style:italic">retroactive effect to a constitutional violation</span><span style="font-family:Arial">.” They add that such authorization does not legitimize the access that was made long before to the accounts without a judge's order: </span><span style="font-family:Arial; font-style:italic">“… What is intended is that retroactively, as if one could travel back in time, it be placed BEFORE September 2004, almost six years earlier, and provide the endorsement to open the accounts without a Judge's order and BEFORE THEY WERE OPENED. As if nothing had happened. Pure legal alchemy. And at the end of the note, the matter gets better: it says that he consents to and authorizes the use and utilization, here we go again, that may have been made in the past of those documents, that is, he intends to erase everything illegal as if it had not occurred and as if he were the only one affected. UNBELIEVABLE. The letter itself is an acknowledgment of the illegal action of Judges and Prosecutors, since if they were sure of its legality, they would never have drafted such a legal tongue-twister. Let us correctly understand the timeline: the evidence is obtained illegally, it is used to learn of the existence of the company [Nombre01 058], through it and not through prior and independent sources, the banking information of [Nombre01 058] is accessed, and the potential participation of [Nombre01 091] and the other defendants is determined, some of them are detained, they are charged, and they are prosecuted and, without any embarrassment, almost six years later, an attempt is made to cure everything that was done with the written statement of [Nombre01 158]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which he later reiterates verbally before the Court in August 2010, almost SIX YEARS AFTER THE CONSTITUTIONAL VIOLATION</span><span style="font-family:Arial">. </span><span style="font-family:Arial; font-style:italic">Firstly, at folio 898, the Judges attempt to elaborate an absurd thesis, consisting of separating the moment the illegal evidence was obtained from the moment of its incorporation, pointing out that while the former may be obtained illicitly, its validity is analyzed and assessed when it is incorporated into the case file. Such a position has already been questioned and criticized in previous lines: both the Voto 1739-92 and the criminal procedural regulations, which hold constitutional rank according to that vote, clearly state that evidentiary elements only have value if they have been OBTAINED BY A LAWFUL MEANS. The incorporation process is subsequent, but its unlawful obtainment contaminates the evidence and prevents its use against the defendant, not just the presumed holder of the affected right, which will be analyzed later. Thus, the fact that the evidence can be validly incorporated into the proceeding, according to the Judges, does not eliminate its illegal obtainment, through the lifting of bank secrecy without an order from a competent Judge. Nombre02 to state shamelessly that the documents derived from evidence 588 were not such until the moment they were introduced into the trial is nothing more than a sad mockery of the legal system, the resolutions of the Constitutional Chamber, and the rule of law. With that evidence, which if it were not such the trial would not have been held, all the defendants were prosecuted, they were deprived of their liberty, they were charged, and they were convicted. If it had not existed, as it legally does not exist, the case would not have even passed the preliminary hearing, and if the Prosecutor's Office respected the Law, it would have withdrawn from the case from the beginning, but its stubbornness in doing things as it wanted and not as it should have contaminated all the evidence derived from the documentation contained in evidence 588 and makes it impossible to be lawfully used in the case…”</span><span style="font-family:Arial"> (F. 17,271 recto). Nombre11 in this line of reasoning, the appellants add another argument, namely, that neither in May nor in August 2010 did [Nombre01 158] prove he was the legal representative of the company [Nombre01 215]. In their view, this could only be proven with registry and notarial certifications and not by relying on evidence 588, whose legality is questioned. Also, the statement of [Nombre01 158], who testifies personally and not as a representative of the company, should be conclusively substantiated, especially considering the evidence was obtained without a judicial warrant almost six years earlier. For the appellants, the majority opinion, at folio 897, peacefully accepts that when the banking documentation from Panama is received, the lifting of bank secrecy has already occurred without a judge's order, resulting in the following situation: “... </span><span style="font-family:Arial; font-style:italic">in the hypothesis that the documents for the bank account of [Nombre01 215] in Panama were collected without a jurisdictional order being involved, [Nombre01 158]'s</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">action is to accept that this result (collection of banking documents) would have occurred without the respective safeguard (jurisdictional order) of his right to privacy. From this perspective, for this panel, what operates on his part in a technical legal sense is the waiver of said right, which is characterized as an express procedural act subsequent to the act, characteristics that the action of [Nombre01 158] meets</span><span style="font-family:Arial">.” Such a criterion is erroneous, because consent should have been granted before the violation of bank secrecy. What [Nombre01 158] does in 2010, six years after such violation, is waive his right to privacy, which does not legitimize the evidence in question. The appellants state that the issue to be determined is whether [Nombre01 158] could waive his right to privacy, given that this waiver affects other persons: </span><span style="font-family:Arial; font-style:italic">“This is the real crux of the matter. We are not talking about the rights of [Nombre01 215] to its privacy. This would have been correct in September 2004 if at that time the company [Nombre01 215], through whoever was acting as its representative, had authorized the lifting of bank secrecy of its accounts in response to a request from the Prosecutor's Office or from BAC Panama itself. Of course, it had full competence to authorize the lifting of bank secrecy of its accounts, regardless of who had sent money to them or who was its final recipient, if that were the case. It is also possible that, a posteriori, the representatives of [Nombre01 215] could waive their right to privacy and the legal action against the Prosecutor's Office and the Bank for the use of information derived from those illegally opened accounts, BUT ONLY AND EXCLUSIVELY IF THEY WERE THE ONLY ONES AFFECTED BY THAT ILLEGAL OBTAINMENT. Because what the Judges do not want to see is that the constitutional right here is not the privacy of [Nombre01 215]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">or Mr. [Nombre01 158], it is rather, and to a greater extent and importance, that of us, the defendants, THAT ILLEGALLY OBTAINED INFORMATION, EVIDENCE, AND PROOF NOT BE USED AGAINST US TO RESTRICT OUR RIGHTS AND INTERESTS, WHICH ARE JUST AS OR MORE IMPORTANT THAN THOSE OF MR. [Nombre01 158], WHO IS NOT EVEN A DEFENDANT IN THIS CASE… If the company had wished to authorize the opening of its accounts in Panama, of course it could have done so expressly… in that case, the documentary information used against us would have had a lawful origin. But that is not the case. Here, evidence obtained illicitly was used, not against [Nombre01 158] or [Nombre01 215],… but against third parties, we who have a guaranteed constitutional right… that spuriously obtained evidence not be used against us. The data of [Nombre01 215] could have gone from private to the knowledge of the Prosecutor's Office with the authorization of its representatives if Nombre02 they had given it before its use against us, because from that moment on, it is no longer just the privacy of one company and the clear interests of a man who “collaborates” with the Prosecutor's Office at stake. That is why it is false and reckless to say that denying effects to the note and words of [Nombre01 158] six years after the constitutional outrage is CONDONING AN ILLEGAL PROCEDURE... AND FOSTERING ARBITRARY AND ABUSIVE ACTION IN THE EXERCISE OF PUBLIC POWER. (Folio 913). Rather, it is the complacent attitude of the majority Judges that leads to condoning an illegal and invasive procedure against the defendants' rights, by being complicit in a conscious constitutional violation: the Judges know that the banking evidence was obtained without a Judge's order, they know it was used to learn of the existence of [Nombre01 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and its presumed relationships with [Nombre01 091] and the defendants, they know it was used to gather evidence without having an independent or prior source, and they know that the defendants' rights are violated by it, yet they admit that a third party foreign to the proceeding can cure, six years later, what was definitively broken, and when what is at stake is not privacy but judicial dignity, which is what is affected when the use of spurious evidence is applauded. Who, then, is condoning an illegal procedure and fostering arbitrary and abusive action? This is why the legitimate rights of the defendants not to have illegal evidence used against them and to have it excluded from the case file are indeed affected; it is not that we seek to prevent [Nombre01 215] or [Nombre01 158] from cheerfully waiving their privacy, that is very much their business and their clear or obscure interests, God only knows. But that [Nombre01 158] seeks, with the complicity of prosecutors and Judges, to obtain and use illegal evidence against us is inadmissible. Therefore, the reading of various opinions from the Third Chamber that are incorporated has no relation whatsoever to the matter that concerns us. We are not facing cases where the holder of the privacy right waives their intimacy rights in order to accuse those who have offended or affected them, since neither [Nombre01 215] nor [Nombre01 158] are parties in this case. One can read the error of the Judges when writing at Folio 919 that the banking documentation was not obtained illegally because knowledge of that information derives from the authorization of the holders of those accounts. ABSOLUTELY AND UTTERLY FALSE. The knowledge derives from an illegal lifting of bank secrecy by the Prosecutor's Office, and by using that evidence against other defendants, its scope of harm went beyond the simple right to privacy of [Nombre01 215], and in that expanded harm, neither [Nombre01 158], nor that company, nor the Prosecutors, nor the Judges are sovereign. Whether there was a crime or not in the manner in which the banking evidence was obtained is a matter foreign to the case file: the obtainment was illegal and its use was spurious, regardless of whether [Nombre01 158] or [Nombre01 215] do not wish to accuse those who Nombre02 acted or whether the criminal action has prescribed. That is why the vacillations consisting of attempting to absolve those who acted illegally of crimes are nothing more than that: vacillations. The illegality of evidence does not require deriving from a crime; it is enough that its obtainment was contrary to law for it to be excluded, not only the evidence per se, but everything derived from it, unless it has an independent and prior source, which does not occur in this case…” </span><span style="font-family:Arial">(F. 17,273 and 17,274 recto, the transcription is literal). </span><span style="font-family:Arial; font-weight:bold">Fourth. The information coming from the banking evidence from Panama, which derives from an illegal lifting of bank secrecy, cannot be substantiated or validated under the inevitable discovery exception</span><span style="font-family:Arial">. The judges attempt to justify the use of illegally obtained evidence by arguing that it was an inevitable discovery. To this end, decision No. 125-2001 of the Third Chamber is cited, which indicates that if it is conclusively proven that the excluded evidence, due to being illegal, would have been discovered or obtained IN AN INEVITABLE OR CERTAIN MANNER BASED ON THE LEGITIMATE INVESTIGATIONS ALREADY BEING CARRIED OUT AT THAT TIME, it can be validated </span><span style="font-family:Arial; font-style:italic">a posteriori</span><span style="font-family:Arial">, not because it was not invalid, but because it would have been arrived at in any case. In this case, none of that occurred. The appellants explain that when the questioned evidence was obtained, there was no investigation on the Nombre64 091] matter, nor was anything known about the company [Nombre01 058], making it evident that there were no legitimate investigations underway. Additionally, although the judges speak of licit journalistic investigations, explaining that by April 2004 it was inevitable to reach the conclusions that were reached because journalists were already pursuing an investigation that was going to end up finding the connection between [Nombre01 058] and [Nombre01 091] itself, such an argument constitutes an interested and unproven supposition. At no time are the media auxiliaries of justice, or substitutes for the State's investigative bodies. But furthermore, as of September 27, 2004, journalists were not referring to [Nombre01 058] as a transmitter of resources to the accounts of [Nombre01 215]. However, by September 10, 2004, the banking information was already available, which would rule out the possibility of applying the inevitable discovery criterion to validate the evidence in this case. </span><span style="font-family:Arial; font-weight:bold">Fifth. The banking information from Panama, which comes from an illegal lifting of bank secrecy, cannot be substantiated or validated under the plain view/fruit of the poisonous tree exception</span><span style="font-family:Arial">. According to the appellants, the evidence from Panama is entirely null and cannot be validated in pieces or parts. We are not facing a case, for example, of an illegal search that leads to the discovery of another crime. The judges, at folio 949, say that before the Prosecutor's Office learned of the banking information, there was already news linking companies and persons, but the truth is that none involved [Nombre01 058]. The judgment states a falsehood, namely, that thanks to these journalistic reports, the interest in investigating the cited company arose, when the truth is that no journalistic note involved [Nombre01 058] with the case before September 10, 2004. Therefore,</span><span style="font-family:Arial; font-style:italic"> “… the judges are not telling the truth when they attempt to indicate that the Prosecutors had knowledge of evidence or indications regarding this company and that, based on them, which did not exist at that time, they continued with their investigations, and upon reviewing the information from Panama, they casually found what was related to [Nombre01 058]. What a mess they make in their theoretical vacillations. If, according to them, the interest in investigating [Nombre01 058] and its relationship with [Nombre01 018] had already arisen, which is false, what explanation would the casual nature of the discovery have, since they indicate the Prosecutor's Office was already going after [Nombre01 058]. It is evident that there was no prior indication whatsoever before September 10 about [Nombre01 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and its link to the case, which had not even begun…</span><span style="font-family:Arial">” (F. 17,275 recto). Therefore, it is not feasible to apply the casual discovery exception in this case to validate the evidence. </span><span style="font-family:Arial; font-weight:bold">Sixth. The banking information from Panama was obtained illegally and the attempt is made to validate it as a </span><span style="font-family:Arial; font-weight:bold; font-style:italic">notitia criminis,</span><span style="font-family:Arial; font-weight:bold"> which is contrary to Law.</span><span style="font-family:Arial"> They point out that </span><span style="font-family:Arial; font-style:italic">“… where this thesis directly leads is to denying all evidentiary value to the evidence from Panama, but to ensuring that what derives from it does possess it, in accordance with the existing jurisprudence of the Third Chamber...”</span><span style="font-family:Arial"> (F. 17,276 recto). But the truth is that no evidence of a crime attributable to [Nombre01 058] derives from that evidence. There is only a record that this company sent transfers to [Nombre 215], which was being investigated in the CCSS-FISCHEL case. Those charged also reject considering the information generated after an illegal lifting of bank secrecy as </span><span style="font-family:Arial; font-style:italic">noticia criminis </span><span style="font-family:Arial">and that therefore, it cannot be used against any defendant. </span> <p style="margin-top:0pt; margin-left:73.8pt; margin-bottom:0pt; text-indent:-18pt"><span style="font-family:Symbol; font-size:10pt"></span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt">&#xa0;</span><span style="font-size:7pt"> </span><span>&#xa0;</span></p> <p style="margin-top:0pt; margin-left:40.8pt; margin-bottom:0pt; text-indent:-18pt; line-height:150%"><span style="line-height:150%; font-family:Symbol; font-size:10pt; color:#010101"></span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101">&#xa0;</span><span style="line-height:150%; font-size:7pt; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">XXII.- The arguments must be dismissed</span><span style="font-family:Arial; color:#010101">. Firstly, it is necessary to clarify that although [Nombre01 001], [Nombre01 028], and [Nombre01 041] were acquitted of all penalty and liability, [Nombre01 018], who is the fourth defendant filing the appeal in a personal capacity, is not in that situation; hence, at least with respect to him, the challenge retains interest. Having clarified this, it is noted that the matter of the legality of evidence No. 588 was decided by the Third Chamber when it heard and resolved the appeal in cassation filed by the Public Prosecutor's Office against the decision previously issued by this court of appeals (with a different panel), </span><span style="font-family:Arial; text-decoration:underline; color:#010101">concluding that it is lawful</span><span style="font-family:Arial; color:#010101"> and </span><span style="font-family:Arial; text-decoration:underline; color:#010101">further ordering that on this basis</span><span style="font-family:Arial; color:#010101"> (the legality of said evidence) the remand be carried out: “… </span><span style="font-family:Arial; font-style:italic; color:#010101">Regarding the claim of the Public Prosecutor's Office, referring to the declaration of illegality of evidence 588, because the Court of Appeals of the Criminal Sentence considered that it was gathered without an order or endorsement from a jurisdictional body, a condition necessary, in its view, for the validity of said evidence, Judges López Madrigal, Gómez Cortés and Judges Desanti Henderson and Sanabria Rojas, consider that, although this Chamber, with a different panel, ruled on this same evidence in majority opinion 2011-00499, at eleven forty-five hours on May eleventh, two thousand eleven, the truth is that the criteria expressed in that sentence do not bind this new panel to preserve them or assess them in the same manner, so, by the principles of judicial independence and impartiality, the undersigned Judges disagree on the requirement of a prior decision from a Costa Rican jurisdictional body or an endorsement from a Criminal Judge, prior to the request for evidence made by the Procuraduría General de la República of Costa Rica as a validity requirement to access the information gathered in Panama, through the TALM, given the position assumed by the Court of Appeals of Sentence in the questioned judgment 2012-2550, this Chamber with the majority of the present panel refers to the matter in the terms set forth below. Before entering into the substance of the claim filed, it is necessary to delve into the topic of the sovereignty of States as a principle of Public International Law and its implications in our legal system, it being appropriate to note that as part of the concept of sovereignty, which encompasses population, territory, and the powers of the State, the Costa Rican Political Constitution, in its Articles 5 and 6, defines the national territory in which complete and exclusive sovereignty is exercised. From the territorial space definition adopted in the cited articles, Article 9 of the Political Constitution also describes the internal organization of the territory and the separation of powers, into three mutually independent bodies: Legislative, Executive, and Judicial, Nombre02 as well as their competencies as part of the exercise of that State sovereignty. Regarding the Judicial Branch, a matter of importance in the resolution of the sub júdice, the Magna Carta itself grants it specific functions, according to Articles 9, 10, 39, 48, 49, 152, and 153, which are regulated by Articles 1 to 5 of Law 7333, Ley Orgánica del Poder Judicial, and among which stand out the application –obviously to the inhabitants of the Costa Rican territory– of the laws and regulations enacted by the Legislative Branch, which by Article 29 of the Vienna Convention on the Law of Treaties, intrinsically carry respect for the principles of sovereignty of other nations as “a fundamental right of any State in the international community” (Nombre77 (Nombre78), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline; color:#010101">El ejercicio de la Soberanía de los Estados,</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-style:italic; color:#010101">México, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.87) and to that of non-interference</span><span style="font-family:Arial; font-style:italic; color:#010101">&#xa0;</span><span style="font-family:Arial; font-style:italic; color:#010101"> in another territory or in the internal legislation of each country as a corollary of the first, because each of them has the power to be independent regarding its internal regulations.

However, the aforementioned principle of international sovereignty is not absolute, since “…in the foreign relations of said States, they may legally bind themselves through treaties and other international agreements to exercise their sovereignty” (Nombre77 (Nombre78), The Exercise of State Sovereignty, Mexico, Legal Research Institute of the National Autonomous University of Mexico, p.103), through organizations such as the United Nations by means of action plans for the signing of conventions or agreements such as the Model Treaty on Mutual Assistance in Criminal Matters, approved as the Milan Plan of Action by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and by the General Assembly in its resolution 40/32, of November 29, 1985, as “useful model instruments that may be utilized as international and regional conventions and as guides for the drafting of national laws” (Preamble of the Model Treaty on Mutual Assistance in Criminal Matters) to be used precisely as “…a useful framework that may serve interested States in negotiating and concluding bilateral agreements aimed at improving cooperation in crime prevention and criminal justice matters” (First aspect of the Preamble of the Model Treaty on Mutual Assistance in Criminal Matters). It is thus how, for example, based on the Model Treaty on Mutual Assistance in Criminal Matters, the Member States of the United Nations, such as Costa Rica, in fulfillment of the purposes of that international instrument, have undertaken the task of additionally signing conventions or treaties that, without harming the sovereignty of other countries or the country itself, produce understanding between governments on specific issues that afflict them, such as: the United Nations Convention against Corruption (ratified by Costa Rica through Law 8557, of November twenty-ninth, two thousand six) or the United Nations Convention against Transnational Organized Crime (Palermo Convention, 2000, ratified by Costa Rica through Law 8302, of September twelfth, two thousand two), whose primary purposes lie in improving the investigation of criminal conduct that afflicts not only one State but the rest of the countries in the area, it being observable that in this endeavor Costa Rica has signed respective specific treaties or conventions with other countries such as Mexico (Law 7282, of January fourteenth, nineteen ninety-two), Panama (on November 29, two thousand one), Argentina (Law 8610, of November first, two thousand seven), Trinidad and Tobago or, as in the case before us, the Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM), approved by Law 7696, in force since October thirtieth, nineteen ninety-seven, which has taken as a reference point, often verbatim, the provisions of the aforementioned Model Treaty. Thus, the TALM, apart from containing the same limitations or restrictions on use and confidentiality protection (Articles 8 and 9 of the United Nations Model Treaty on Mutual Assistance in Criminal Matters) described above, also presents the same requirements concerning requests from competent Authorities of the Member States as well as its own content. Precisely, like the United Nations Model Treaty on Mutual Assistance in Criminal Matters, the purpose of the TALM signed by our country with the other Central American countries and Panama is: “to strengthen and facilitate cooperation among the justice administration bodies in the region, through a legal instrument that allows legal assistance in criminal matters among the States of the Central American Isthmus with full respect for the domestic legislation of each State” (Preamble of the TALM). In this manner, through this type of norms, it is possible to make requests to the contracting countries, allowing access to evidence located in neighboring countries to facilitate the investigation of criminal cases involving punishable acts criminalized in both the Requesting and the Requested State, as admitted by Article 2.2 of the TALM: “The legal assistance in accordance with the provisions of this Treaty includes: a) The taking of testimonial statements. b) The obtaining and execution of means of proof. c) The notification of judicial resolutions and other documents issued by a competent authority; d) The execution of precautionary measures. e) The location of persons; and f) Any other legal assistance agreed upon between two or more Contracting States...” (Article 2.2 of the TALM. Emphasis added), it happening that, in order to improve communication among the Central American States and Panama that sign the Treaty, the mechanism devised in the United Nations Model Treaty on Mutual Assistance in Criminal Matters was duplicated, that is, the designation of “…an authority or authorities through which requests provided for in this Treaty shall be made or received and shall notify the other Party…” (Article 3 of the United Nations Model Treaty on Mutual Assistance in Criminal Matters), it being understood that said Central Authority or Authorities in the Contracting States have “…sufficient administrative capacity, through which assistance requests must be processed in accordance with this Treaty” (Article 3 of the TALM. Emphasis added). Likewise, all request procedures, in safeguarding the domestic law of the Signatory Countries, must be managed through a simple procedure involving the so-called “Central Authorities” of each of those countries: The Central Authority of the Requesting State makes a formal request for assistance to its counterpart in the Requested State, and this one, in turn, in accordance with its domestic law, processes it and gathers the evidence that the Requesting State needs to obtain, there being no uniformity—since it is a power assumed by the various States—in the designation of the Central Authority for the different Central American countries and Panama. Thus, by way of example, the Central Authority designated by the countries of Costa Rica and Nicaragua is the Procuraduría General de la República, while in El Salvador, Guatemala, and Honduras, it corresponds to the Supreme Court of Justice, and in the Panamanian case, to the Ministry of Government and Justice, for, as has been established, the task of the Central Authority in each country will be merely administrative and not jurisdictional, according to the inference that can be drawn from the preamble of the Treaty, in consonance with the principle of Pacta Sunt Servanda and the rules of good faith in the interpretation of treaties, contained respectively in Articles 26 and 31 of the Vienna Convention on the Law of Treaties, approved by the Legislative Assembly of Costa Rica by Law 7615 of July 24, 1996 (hereinafter Vienna Convention), since with the ratification of the Treaty by the Central American States and Panama, the aim was to create an agile legal instrument that would allow the obtaining of external evidence in the investigation of criminal matters in the region, while respecting the sovereignty and internal legislation of each country, and said purpose may also be derived from Article 5 of the TALM, which establishes: “The Central Authority of the Requested State shall promptly comply with the request for assistance or, when appropriate, shall forward it to the competent authority. Said authority shall use all legal means at its disposal to comply with the request.” (Emphasis added). On the other hand, concerning the regulations to be applied to obtain the means of proof requested by the Requesting country, the Treaty—by the principle of respect for the sovereignty of the other contracting countries—is clear in stating that any request once made known to the Requested country through its Central Authority must be processed and executed in accordance with its domestic law, the laws, or existing formalities of that country, this action being reiterated both in the aforementioned Article 5 and in Articles 7.1 and 12.1 of the same Treaty to, finally, expressly establish in Article 6 that the Requested country has the power to refuse to comply with the request for assistance when: “…a…Considers that compliance with the request for assistance may prejudice its sovereignty, security, or public order…” (Emphasis added). On the topic of the interpretation of the TALM and its scope, special mention must be made of the Inter-American Convention on Mutual Assistance in Criminal Matters, signed in the City of Nassau, Bahamas (hereinafter Nassau Convention) on May 23, 1992, but ratified by Costa Rica by Law 9006, only until January 3, 2012, since although that text, as such, would not have the virtue of being binding, having been ratified after the issuance of the first instance judgment in this case, the fact is that, by strict application of Articles 31, 32, 53, and 64 of the Vienna Convention on the Law of Treaties, a non-ratified treaty remains part of the “jus cogens,” and may therefore be used as an instrument of interpretation, provided it does not contravene the norms of international law. Having clarified this point, it must be noted that the aforementioned Nassau Convention, which is the precursor to the TALM, also contains similar rules regarding the application and scope of the Convention (Article 2), the appointment of the Central Authorities of the contracting countries (Article 3), as well as the obtaining of evidence in the requested countries (Article 4), highlighting, for our purposes, the rule contained in the cited Article 4: “…The assistance referred to in this Convention, taking into account the diversity of the legal systems of the States Parties, shall be based on requests for cooperation from the authorities in charge of the investigation or prosecution of crimes in the requesting State” (Emphasis added), that is to say, that both the TALM and the Nassau Convention establish that the requests made to the Central Authorities, be they the Ministry of Government and Justice, the Procuraduría General, the Attorney General's Office, or any governmental entity freely chosen by the Signatory States, are procedures carried out solely through “requests for cooperation” or “assistance,” but neither body of law ever refers to the term “jurisdictional resolutions between Authorities” of investigation or prosecution, since these are petitions made to the Requested State, processed in accordance with its domestic law (Article 10, first paragraph of the Nassau Convention). In this regard, precisely vote 2011-11969, at fourteen hours and thirty-four minutes, of September seventh, two thousand eleven, of the Constitutional Chamber, issued in reference to the constitutionality of the Bill for Approval of the Nassau Convention, held that: “…The Convention consists of forty articles, and was signed in the City of Nassau, Bahamas, during the twenty-second regular session of the General Assembly of the Organization of American States, on May 23, 1992. The bill proposes a multilateral response aimed at combating the scourge of organized crime; updating, improving, and homogenizing the internal legislation of the Inter-American System. Mutual assistance covers investigations, trials, and proceedings in criminal matters concerning crimes to be heard by the requesting State (Article 2). It is indicated that the principle of dual criminality is enshrined, as assistance shall be provided even if the act giving rise to it is not punishable in the requested State but is—with a penalty exceeding one year—in the requesting State, except in the case of the application of precautionary measures (Articles 5 and 6). The procedural acts in which assistance will be provided are listed, including the transfer of detained persons (Article 7) and the possibility of refusing the requested assistance (Article 9). It also regulates the procedure for request, processing, and execution of assistance (Articles 10 to 16); the manner in which resolutions, orders, and sentences, and the appearances of experts and witnesses shall be notified (Articles 17 to 23); the manner of transmitting information and records (Articles 24 and 25); and the proper procedure for assistance (Articles 26 to 31). Finally, the final clauses are listed (Articles 32 to 40), which allow States to make reservations, and regulate the ratification and entry into force of the Convention. The broad possibilities for States to refuse assistance when they deem it convenient must be highlighted, as well as the important figure of the transfer of detainees, which—being a temporary measure—is far removed from the extradition process and significantly facilitates the purposes of the Convention. In general, it can be stated that this inter-state assistance convention in criminal matters is a legal instrument that makes it possible to guarantee the enforcement of criminal law in a society where criminality is increasingly organized and transcends borders. The signing of this Convention allows American states to facilitate the application of criminal procedures, especially in cases where there are no bilateral treaties. It must also be clear that the treaty must be interpreted in accordance with domestic regulations on the matter (in particular Articles 5, second paragraph, 7 subsection i, and 20 subsection c, which are permissive provisions; and 24 subsection 2, which requires a national judge’s order in domestic regulations) and that all those scenarios not contemplated in the Convention will be supplemented by the legal system in general, including, for this purpose, the various international instruments in force in criminal matters…” (Emphasis added), the highest constitutional body of our country concluding, with respect to the bill for approval of the Nassau Convention—which later became law of the Republic and remains in force today—that Costa Rica, as a State from which assistance is requested (Requested State), must provide collaboration or assistance in accordance with its domestic regulations, using its traditional legitimate means to safeguard the rights of those for whom cooperation is requested, and even emphasizing that these means in force in the country be used to protect the rights of the subjects whom the evidence could prejudice, the ruling in question not referring at any time to the formal requirements necessary to petition as a Requesting State, much less to the need for a jurisdictional endorsement or order when requesting assistance, which was addressed for those cases in which evidence must be gathered in our territory, as part of the obligations acquired by signing the Treaty as a Requested State. In this regard, note that the ruling refers to Articles 5, second paragraph, 7 subsection i, and 20 subsection of the Convention as permissive provisions for the State from which legal assistance is requested (Requested State) and to Article 24 subsection 2 of that same body of law as the only scenario in which the remittance of documents, information, and records requires, from Costa Rica as a Requested State, the respective judicial order, it being reiterated that, considering the bill for the Nassau Convention, the precursor to the TALM, our highest constitutional body never indicated as a validity requirement for Costa Rican cooperation requests to other Central American States and Panama the requirement of a jurisdictional endorsement or order emanating from a Judge to petition before the other Signatory Countries; rather, the requirement of a jurisdictional order was determined solely and exclusively for those cases in which our country is requested to deliver information to States that request assistance, that is to say, this is a reasoning clearly consistent with the purpose of the Convention, insofar as it seeks absolute respect for the domestic regulations of each contracting country, assistance being a purely administrative mechanism for aid in obtaining evidence; Costa Rica, or any other country party to the Convention as a Requesting State, cannot, without violating the principle of sovereignty, order the Requested State to gather evidence through a jurisdictional order, since the manner in which assistance is carried out is the discretion of the Requested State, according to its internal provisions; for the Costa Rican case, such assistance once managed by the Requesting State could well be gathered with the formalities required in Article 24 of the Political Constitution, by strict application of Article 24 of the Nassau Convention, which reads: “In cases where assistance is available under this Convention, upon prior request, and in accordance with the domestic procedure, the requested State shall provide the requesting State with a copy of the documents, records, or information of a public nature held in governmental agencies and departments of the requested State./ The requested State may provide copies of any document, record, or information held in a governmental agency or department of said State that is not of a public nature, to the same extent and under the same conditions as it would provide them to its own judicial authorities or other law enforcement authorities. The requested State may, at its discretion, deny in whole or in part a request made under this paragraph” (Emphasis added). As can be deduced from Article 24 of the Convention and from vote 2011-11969 of the Constitutional Chamber cited above, obtaining evidentiary elements in Costa Rica as a Requested State must be done in accordance with the legal provisions of our legal system, such that, if domestic law requires the issuance of a Judge’s order to access the requested information, its issuance will be indispensable; however, that same action is not applicable in the scenario where Costa Rica requests information from another country (Requesting State), as can be inferred from the same ruling 2011-11969 cited: “…In the event of a potential provision of assistance that may be considered harmful to the fundamental rights of the subject of the collaboration, the traditional remedies provided for the protection of said rights in our legal system may be used. Based on the foregoing, this is an instrument that conforms to basic constitutional values and principles, and is therefore substantially in accordance with the constitutionality parameter…” (Constitutional Chamber of the Supreme Court of Justice, vote 2011-11969, at fourteen hours and thirty-four minutes, of September seventh, two thousand eleven. Emphasis added). Added to the foregoing body of interpretation, it is noteworthy that the TALM, as it derives from the Nassau Convention and adopts the same mechanism for obtaining evidence in the Requested States, does not in any way present constitutional conflicts, according to the opinion expressed by the Constitutional Chamber in vote 1997-04711, at sixteen hours and twenty-one minutes, of August nineteenth, nineteen ninety-seven, which resolved a constitutionality consultation on the bill for approval of the Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM), currently a valid law of the Republic. The vote 1997-04711 in question established in its interpretation, first, the purposes of the Treaty and second, the questions about the constitutionality of the mechanism for obtaining evidence, once the Requesting State’s request is received in Costa Rica as a Requested State, our Constitutional Chamber finally determining the non-existence of constitutional conflicts, even though the Costa Rican Procuraduría General is assigned administrative functions. Indeed, the cited vote, in what is relevant, determined: “…IV. Regarding the merits of the matter, it is deemed appropriate to render a non-binding opinion, to point out that through the Treaty, according to the Executive’s statement of purposes, it is intended to fulfill the following purposes: ‘The States of the Central American Isthmus have signed this Treaty with the objective of creating a legal framework that allows them to mutually assist each other in criminal matters being heard in their respective Courts of Justice. However, the signatory countries have considered that this assistance is limited to aspects ancillary to the proceedings, which do not detract from the sovereign duty of each State to administer justice. In this sense, its purpose is to facilitate the execution of a procedural act in those cases where the collaboration of authorities of another State is necessary. The assistance covers the following aspects: taking of testimonial statements, obtaining and executing means of proof, notification of judicial resolutions, execution of precautionary measures, location of persons, as well as any other type of assistance agreed upon between two or more States Parties. However, considering that there are certain competencies that require a specific Agreement for their execution, this Treaty excludes from its scope of application aspects related to tax matters, the detention and extradition of persons, the transfer of criminal proceedings, and the transfer of prisoners for the purpose of serving criminal sentences in other countries.’/V. First of all, it is simply worth clarifying that, although the text of the convention allows the execution of measures capable of potentially harming fundamental rights, such as, for example, access to data, seizure or confiscation of objects; the delegation of the action to a jurisdictional authority and the mandatory subjection to the domestic regime of each country on the matter eliminate any possible contradiction with the Constitution./Finally, the Chamber also does not find it contrary to the Constitution that the Procuraduría General de la República was designated as the ‘central authority’ for processing assistance requests, as the treaty itself clarifies that it does so as an administrative authority (Article 3), and its function consists of forwarding the petitions to the competent judicial authority, which ultimately executes the requested act…” (Constitutional Chamber of the Supreme Court of Justice, vote 1997-04711, at sixteen hours and twenty-one minutes, of August nineteenth, nineteen ninety-seven. Emphasis added). A constitutionality criterion that, furthermore, was reiterated in judgment 2001-04248, at fifteen hours and four minutes, of May twenty-third, two thousand one, by the same Constitutional Chamber, when resolving an action of unconstitutionality against Article 13 of the TALM. On that occasion, our highest constitutional body, when studying the procedure adopted by the Treaty for obtaining documentary evidence, established the unnecessary nature of consular processing as a mechanism for evidentiary validation, provided that said proceeding had been carried out in accordance with the norms of the domestic law of the Requested country, stating: “…From the reading of the questioned article, this Court verifies that it establishes the guidelines for sending copies of public documents as a result of a request for assistance required by one of the States Party to the Treaty on Mutual Legal Assistance in Criminal Matters, indicating that the documents shall be provided under the same conditions under which they would be provided to its own law enforcement authorities. Said documents must be prepared by the official of the requested State in charge of keeping them in custody and certified by the Central Authority, by means of a seal whose format appears in the annex of this Treaty.

That is, although the rule exempts copies of the requested documents from the procedure before the consular notary, the truth is that it establishes a mechanism that guarantees the veracity and authenticity of their content by requiring that such documents be formed by the official responsible for keeping them in custody and certified exclusively by the Central Authority (as indicated for each Contracting State in Article 3 of the Treaty), by means of the seal designed for that purpose; a mechanism that is consistent with the principle of due process insofar as, in each case, the competent authorities of the Requested State have prepared, and exercised control over the actions indicated by the rule, as well as the document having been certified by the respective central authority, so that the requirements of due process at the constitutional level have been satisfied…” (Constitutional Chamber of the Supreme Court of Justice, vote 2001-04248, of fifteen hours and four minutes, of May twenty-third, two thousand one). A position that reaffirms the thesis that the mechanism for obtaining evidence must be the one followed by the internal legislation of each Requested country, and the prior issuance of a jurisdictional order from the Requesting Country cannot be interpreted as a requirement for validity. More extensively, that same approach was reiterated more recently by the Constitutional Chamber, in ruling 2011-002074, of seventeen hours and forty-three minutes, of February fifteenth, two thousand eleven, when resolving an unconstitutionality action filed against Articles 2.5 and 12.1 of the TALM (Treaty on Mutual Legal Assistance in Criminal Matters), in which, although it was rejected outright, it determined regarding the request for assistance from the Requesting State that: “…It should be noted that the assistance provided for in the aforementioned Treaty includes the receipt of witness statements, the obtaining and execution of means of proof, the notification of judicial resolutions, the execution of precautionary measures, the location or tracing of persons, as well as any other kind of assistance agreed upon between two or more States Parties. Regulations that exclude from its scope of application matters related to tax matters, the detention and extradition of persons, the transfer of criminal proceedings, and persons deprived of liberty, for the purpose of serving criminal sentences in other countries. Of course, even though the integral literal text of the agreement empowers the eventual execution of restrictive measures on fundamental rights, such as, for example, access by the competent jurisdictional authorities, in accordance with the domestic law of each Social and Democratic State of Law, to data, to the apprehension or seizure of assets, that subjection rules out any contradiction with the Law of the Constitution, where what is relevant lies in the non-interference with the exercise of the natural function of entities of another Branch (See resolution number 1997-04711, of 4:21 p.m. on August 19, 1997, Constitutional Chamber, Supreme Court of Justice)…” (In the same sense, Constitutional Chamber of the Supreme Court of Justice, vote 2001-4248, of fifteen hours four minutes, of May twenty-third, two thousand one). Finally, from the letter of the TALM and the principle of State sovereignty, it is possible to conclude that the evidentiary elements gathered in the Requested States that have been formally processed by the Central Authorities previously established in the Contracting States and that follow the formal internal procedures in their obtaining will be valid, just as Costa Rica has recognized, as part of the obligations acquired upon ratifying the Model Treaty on Mutual Assistance in Criminal Matters, in the report of April twenty-eighth, two thousand eleven, sent to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, formed since the year two thousand by Ministers of Justice and Attorneys General of the countries of the Organization of American States. In that document, our country admitted before the rest of the Signatory States of that normative body, the existence and validity of national and international procedures assumed by Costa Rica, aimed at obtaining evidentiary elements in the investigation of criminal proceedings, among which the mechanism accepted with the ratification of the TALM stands out widely, not denoting or deriving from that chronicle any limitation or reservation in this regard, but rather a strict adherence to the principle of good faith in the interpretation of the Treaty (Article 31 of the Vienna Convention on the Law of Treaties), by recording as part of the Costa Rican legal system: "...several means for the reception of requests and their processing, one at the internal level, and the rest, at the international level, which derive from the signing of agreements referring to different matters that in turn allow reciprocal judicial assistance: /1.-At the level of national legislation, for use in those cases where there is no international agreement that provides the corresponding provisions on assistance, we have what is established in Article 705 and following of the Code of Civil Procedure, which establishes the Title on “Efficacy of foreign judgments and awards,” a mechanism designed to provide international judicial assistance. / Likewise, we have Law No. 7786 of April 30, 1998 (Law on Narcotics, Psychotropic Substances, Unauthorized Drugs and Related Activities), amended by No. 8204 of December 26, 2001, related to the topic of drugs, whose numeral 8 briefly and concisely contemplates powers to provide and obtain judicial and police collaboration in this matter. Likewise, Article 65 of the Code of Criminal Procedure attributes to the Public Ministry the possibility of forming joint investigation teams with foreign or international institutions. /2.-Regarding the system of judicial assistance predetermined by international agreements, it is necessary to point out that Costa Rica does not have a single central authority, but rather has several central authorities to fulfill its international obligations, in accordance with the treaties in force, for the sending and reception of requests for mutual assistance in criminal matters. /After more than three years of conversations with the Ministers of Foreign Affairs and Worship, Ministers of Justice and the Attorney General of the Republic, the President of the Republic Oscar Arias Sánchez and the Minister of Justice Laura Chinchilla Miranda, issue decree Number 34501-J, published in the Gazette of May 7, 2008, appointing the Attorney General's Office as the central authority for the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, ratified by Costa Rica since the year 2002. Likewise, the President of the Republic and the Minister of Justice approved decree number 34543-J, in which the Attorney General's Office of the Republic is designated as the Central Authority to channel reciprocal judicial assistance and technical cooperation, provided for within the framework of the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. The Attorney General entrusted the OATRI (Office of Technical Advice and International Relations) with the work of central authority in these two conventions by administrative resolution number 74-08 of June nine, two thousand eight and by administrative resolution number 167-2008 of September 8, 2008. /The system imposed by the United Nations Convention against Transnational Organized Crime and by the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, establishes the intermediation of the central authority, in these two cases the OATRI, which will have the obligation to process the request for assistance. /The central authorities in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and in the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, and Panama, are the Costa Rican Drug Institute and the Attorney General's Office of the Republic, respectively. / Regarding the Central American Treaty on Mutual Legal Assistance in Criminal Matters, the system imposed by said agreement establishes, in principle, the intermediation of a central authority with sufficient administrative capacity, which will be in charge of processing the request for assistance, which will proceed to refer it to the competent jurisdictional authority, which will ultimately process the judicial request made, in accordance with the regulations in force in the legal system of the Requested State. This work, in the case of Costa Rica, currently falls on the Attorney General's Office of the Republic, in accordance with Article 2 of the cited international text, with the Attorney General's Office of the Republic being the recipient of requests at the national level for the Judicial Branch..." (Report submitted by Costa Rica, on April twenty-eighth, two thousand eleven to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, at Http://www.oas.org/juridico/mla/sp/index.html. The underlining is ours), the latter cooperation mechanism which has remained in force, even though it has been reviewed on several occasions by the Costa Rican Constitutional Chamber, through the afore-cited votes. Based on the foregoing and in strict adherence to the purpose of the TALM, this Chamber considers, by the indicated majority, that the procedure used to obtain the bank records of the company [Name 215] in Panama was supported by law, insofar as the Costa Rican Public Ministry was empowered by numerals 62 of the Code of Criminal Procedure and 2 of the Organic Law of the Public Ministry, as an organ of criminal prosecution, to manage the assistance and investigation under the terms of application of the TALM, before the Costa Rican Attorney General's Office, just as happened in the specific case with the request for assistance addressed to the Republic of Panama, making it unnecessary to issue a Costa Rican jurisdictional order at the time of requesting it. Now then, regarding the administrative and non-jurisdictional formalities that should have been fulfilled when processing the respective cooperation to the Costa Rican Central Authority to the Requested State, it remains to be noted that Article 3 of the TALM is what determines the procedure to be followed in the Requesting State, by regulating that the provision of evidence between the Contracting Countries will be governed by the domestic law of each country, which through the competent Central Authority “with sufficient administrative capacity,” will have the function of processing the requests for assistance from the various Signatory Countries, and immediately after said definition, Article 4 of the TALM details the requirements to be satisfied in the written request presented to the Requested Country, among which are distinguished: “a) The competent authority requesting the assistance. b) Purpose of the request and description of the assistance requested. c) Description of the facts that constitute the crime for which assistance is sought in accordance with the laws of the Requesting State. The text of the pertinent legal provisions must be attached or transcribed. d) Detail and basis of any particular procedure that the Requesting State wishes to be carried out. e) Specifications on the time limit within which the Requesting State wishes the request to be fulfilled. 2.- In pertinent cases, the request for assistance shall also include: a) The available information on the identity and presumed whereabouts of the person or persons to be located. b) The identity and presumed whereabouts of the person or persons to be notified and the connection that said persons have with the case. c) The identity and presumed whereabouts of those persons from whom evidence must be obtained. d) The description and exact address of the place to be searched and of the objects to be seized; and e) Any other information necessary for the execution of the request for assistance…” (The underlining is ours). It follows from that rule, as a first requirement, the specification of the “Competent Authority” requesting the assistance in the Requesting Country, and it cannot be inferred from that phrase, as the Court of Appeal of Judgment seems to understand it in the challenged judgment 2012-2550, the formality of the prior issuance of a “judicial resolution” issued by a "competent jurisdictional authority" of the Requesting State, because this fourth article refers to a "competent authority," immediately after the States Party to the Treaty designate for each of their territories the respective administrative Central Authorities responsible for centralizing and directing the requests for assistance from their counterparts. Likewise, it is unquestionable that the second paragraph of Article 4 of the TALM refers to the term “request and description of the assistance requested,” but not to the concepts “resolution,” “judgment,” or “jurisdictional order,” so the petition of the Requesting State could not mean that a Judge of that State orders the Central Authority of the Requested State to obtain evidence in its territory, first: because judicial action in any State is limited by the very concept of jurisdiction, understood as: “the public function of administering justice, emanating from the sovereignty of the State and exercised by a special organ (…) Since jurisdiction is an emanation of the sovereignty of the State, or better, sovereignty applied to the function of administering justice, we can say that the limits of the former are the same as the latter, that is, limits regarding territory and limits regarding persons; where and to whom it applies…” (DEVIS ECHANDÍA, General Theory of Procedure, Editorial Universidad, Buenos Aires, 1984, pp. 73 and 99), so that, if that resolution exceeds the population and territorial limits on which the Judge can act, an overstepping would have occurred, which would have the effect of invalidating the evidence obtained. Second, unlike a jurisdictional resolution that has the virtue of being executed even by force, the management of assistance or collaboration in the Requested country is optional or discretionary, since if the request shows non-compliance with one or more of the requirements contemplated in Articles four and six of the TALM, the Requested State may condition its sending, or outright refuse to send the evidence. Thirdly, the issuance of a judicial order emanating from the Requesting Country would constitute an untimely interference by the petitioner in the domestic law of the country from which assistance is requested, which entails an inconceivable violation of the principle of sovereignty of States. Having clarified the questions regarding the powers granted in the TALM, it is necessary to analyze the domestic legislation of Costa Rica regarding the right to privacy of communications and the necessary issuance of a judicial order to access that information. Thus, although Article 24 of the Political Constitution establishes that: “…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 determine in which cases the Courts of Justice may order the seizure, search, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their knowledge (…) Judicial resolutions protected under this rule must be reasoned and may be executed immediately. Their application shall be the non-delegable responsibility of the judicial authority (The underlining is ours), the truth is that, in our territory, the first article of Law 7425, Law on the Search, Seizure and Examination of Private Documents and Intervention of Communications, grants the exclusive competence to order the search and seizure of private documents to Costa Rican Judges, who, by means of a reasoned judicial resolution, may order such diligence, authorizing “…the search, seizure, or examination of any private document, when it is absolutely indispensable to clarify criminal matters submitted to their knowledge…” (Article 1 of Law 7425. The underlining is ours), and being able, as part of their powers, to “…order, ex officio, at the request of the police authority in charge of the investigation, the Public Ministry, or any of the parties to the proceeding, the search, seizure, and examination of any private document, as well as evidence that may serve as indispensable proof in the commission of criminal conduct…” (Article 2 of Law 7425). Based on the foregoing premises and the treatment that our legal system grants to the right to privacy of communications, it is evident that our Judges lack the power and jurisdiction for their provisions, embodied in a judicial resolution ordering the violation of the fundamental right to secrecy of communications, to transcend our territory, and neither do they have the legal authority to direct public officials of another country in obtaining evidence necessary for the investigation of criminal cases, since their coercive powers are limited to Costa Rican territory (Cf. Article 1 of the Organic Law of the Judicial Branch) and to personal action, included in Article 2 in fine, of Law 7425. In light of these premises, for the majority of this Chamber, the procedure assumed by the TALM aimed at obtaining evidence in the investigation of criminal matters is in accordance with the law, since if a judicial order in Costa Rica were hypothetically required, in compliance with the safeguarding of the rights of the intervened party, our Costa Rican Judges, as part of the obligations contained in our domestic law, would even have had to notify and personally hand over “…a copy of the judicial order authorizing it, to the person whose documents are searched or examined. A record shall be drawn up of this, a copy of which shall also be given to them, at the end of the diligence...” (Article 4 of Law 7425. The underlining is ours), an unthinkable action when it comes to the jurisdiction of another country. On this point, precisely, this Third Chamber, in vote 2008-1061, of ten hours, of September twenty-second, two thousand eight, when resolving a case in which, to carry out a jurisdictional advance of evidence, the Costa Rican Criminal Judge traveled to a Consular Office, established that such diligence could not be carried out in a territory other than our own, by stating that: “…Regarding the lack of competence of the Criminal Judge who directed the act (…) In relation to this issue, what is provided in Article 132 of the Code of Criminal Procedure is basic, which clearly states that: “…The court may be constituted in any place of the national territory, when it deems it essential to directly know decisive evidentiary elements in a case under its knowledge and competence (…) It is evident that a Judge cannot perform a jurisdictional act in another country, since such power to resolve finds its limit in the territory in which it has been granted and, to that extent, the action of Judge R.G.V., in traveling to Colombia to personally direct the statement that xxxx gave through a jurisdictional advance of evidence, violated the principle of sovereignty of that country…” (Third Chamber of the Supreme Court of Justice, vote 2008-1061, of ten hours, of September twenty-second, two thousand eight, underlining is ours). Now then, regarding the issue of the order as a requirement to opt for assistance from Panama in the present case, the majority of this Chamber does not observe any defect to declare in the procedure followed to collect the bank movements of the accounts of the company [Name 215] in Panama, insofar as the regulations contained in Article 24 of the Constitution and Law 7425 are only referred to those cases in which the obtaining of evidentiary elements found in Costa Rica is sought, or failing that, when our country acts as a Requested State, according to the TALM, insofar as it involves a judicial resolution, which may well be executed by force, a latter requirement not contemplated for cases in which our country acts as the Requesting State, since under no circumstances does the Costa Rican Judge have the legal power to give orders to foreign Authorities. In this regard, see that Article 12 of the TALM prohibits Requesting States from imposing their domestic law, given that the Treaty is no more than an agreement in which voluntary action and good understanding prevail among the Contracting Countries, which undertake through the signing of that Convention to act in the search for the requested evidence under their domestic law, and it can be derived from the aforementioned Article 12 in conjunction with rule 4, both of the TALM, that the petition for the delivery of evidence between signatory countries must be made through the competent Central Authority of the Requesting State, explaining the facts under investigation, the alleged crimes for which the assistance is being sought, its purpose, and the detail of the evidentiary elements requested, this for the purpose of corroborating the requirement of double criminality of the illicit conduct under investigation and highlighting its denial or conditioning. Having clarified the point, it remains to analyze the procedure followed in the sub examine case to obtain the Evidence in Panama. Precisely, from the study of the case file, it is possible to deduce that on May twentieth, two thousand four, the Attorney General's Office of the Costa Rican Republic petitioned, under the protection of Articles 2, 3, and 4 of the TALM; 62, 65, 154, 180 and 181 of the Code of Criminal Procedure and 41 of the Political Constitution, formal Reciprocal Judicial Assistance (Cf. ff.14-26 of Ampo Prueba No.588, Judicial Assistance of Panama, [Name01 018]), before the Costa Rican Attorney General's Office of the Republic, in which it was requested to investigate all bank transactions of account No. [Value 041] of BAC International Bank in Panama, in the name of the company [Name01 215]., file number 413986, “…from its opening to date, as well as the opening file of the same and all documents that have been presented to the Bank by whom or those who are authorized on the same…” (Cf. f.23 of Ampo Prueba No.588, Judicial Assistance of Panama, [Name01 018]), as well as that instructions be issued to the “…National Banking System of Panama so that it indicates whether the cited company [Name02 215] holds accounts or investments in any Bank, Stock Exchange or financial entity of any type and the detail of the same. If accounts exist, ALL documentation from the time the same was opened is necessary…” (Cf. f.24 of Ampo Prueba No.588, Judicial Assistance of Panama, [Name01 018], capitalization belongs to the original. The underlining is ours).

Body, which, in accordance with the mechanism devised in the TALM, administratively forwarded the request to the Central Authority of Panama, that is, to the Panamanian Ministry of Government and Justice, not without first pointing out that: “…Should an order from a competent judicial authority be necessary to gather the evidentiary elements, in compliance with the legal system of the Republic of Panama, the pertinent steps are respectfully requested for that purpose, for each of the Banks of the National Banking System of Panama, and especially at BAC Internacional Bank (Panamá Inc.)…” (See folios 11 and 27 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]. Emphasis added). As part of the rules of Panamanian domestic law, the National Directorate for the Execution of Mutual Legal Assistance Treaties, attached to the Panamanian Ministry of Government and Justice, referred the Costa Rican request via official letter No. 193-DN-TALM-04, dated June first, two thousand four, to the Office of the Procuraduría General of that Nation, which in turn, by unnumbered official letter of June ninth, two thousand four (See folio 29 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]), ordered the commission of the First Anti-Corruption Prosecutor's Office of the Office of the Procuraduría General of that Nation in order to gather the evidentiary elements requested by Costa Rica, in reference to account No. [Valor 041] of the company [Nombre 215]. (See folio 23 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]), that entity establishing, in what is relevant, that: “…The undersigned Procurador de la Nación ORDERS: To agree to provide the requested assistance within the terms allowed by national legislation, for which purpose the First Anti-Corruption Prosecutor's Office is commissioned…” (See folio 27 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]. Emphasis added), and once the request was made known to the aforementioned Prosecutor's Office, it ordered the following to be carried out: “…On-Site Technical Inspection at BAC INTERNATIONAL BANK (PANAMA INC.), of account No. [Valor 041] of the Company [Nombre 215]., with file number 413986, in order to inspect (sic) all checks that have been issued from that account, from its opening to date, as well as the file for its opening and all documents that have been presented to the Bank, to know who is authorized on the same. The records of the indicated bank accounts are necessary from the moment it was opened, and must include signature cards, documents related to the opening of the account, general ledger cards, periodic account statements, deposit and withdrawal records, instructions related to the receipt or transfer of funds to or from the account, whether by fax, email, or any means of communication. Correspondence to, from, or for the benefit of the account holder(s), memorandums related to the account, cashier's checks and documentation for the purchase of cashier's checks, balances, closing dates, inactivity, or any other document pertaining to the cited account. All duly authenticated by the bank representatives…” (See folios 33-34 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]. Capitalization belongs to the original), that entity appointing in the same act an expert for the purpose of verifying or ruling out possible irregularities in the Panamanian legal system. The on-site inspection (diligencia de inspección ocular) was carried out on Friday, July thirtieth, two thousand four, in Panamanian territory, by the First Anti-Corruption Prosecutor of the Procuraduría de la Nación, Licenciada Cecilia López, who, at the request of the expert Nombre79, previously appointed to carry out the proceeding, seized the following documents: “a) The Statements of the account of [Nombre02 215]. No. [Valor 041], from the month of August 2002 to May 2004. b) Application for opening the account [Nombre01 215]; cross communications. c) Copy of money transfer made on April 28, 2004, for the amount of B/.1,060,000.00. d) Copy of deed No. 2,054 of May 1, 2002. f) Copy of the checks to Nombre01 of [Nombre01 215]…” (See folio 49 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]. Capitalization belongs to the original). Once the information was in the hands of the Panamanian Prosecutorial Authorities, in strict adherence to the domestic law of that country, it was reviewed by the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, attached to the Ministry of the Presidency of Panama, as cases UAF-04-06-004 [Nombre 215]; UAF-04-06-005 O. Nombre01 R. y Cia.; and UAF-04-06-006 Harcourt Holdings S.A. were reported as suspicious. If observed carefully, the procedure followed in Panama was carried out in accordance with the domestic law of that country, since before sending the respective information to Costa Rica, the requested accounts were also investigated in that Nation, and pursuant to Article 2 of the TALM, in the unnumbered report of July fourteenth, two thousand four, from the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, under the Ministry of the Presidency, the officials of that entity corroborated that the alleged crimes for which our country, as the Requesting State, was investigating those companies and the defendants [Nombre01 018] and [Nombre01 225], were also criminalized in Panama as the Requested State, also ruling out the commission of possible criminal actions in that neighboring country. Precisely, as a result of the investigations carried out by the Panamanian State, the report sent to Costa Rica determined that: “…One of the clients appears published in a Costa Rican newspaper, where he is mentioned in an investigation for coercion, serious threats, forgery, concealment, and destruction of documents related to the Caja Costarricense del Seguro Social./That the Fiscalía General of Costa Rica made a request for judicial assistance issued by the Fiscal General of Costa Rica to Panama for said gentlemen for illicit enrichment, embezzlement (peculado), and others./That these cases have been requested from the UAF, through Official Letter No. 2772 of the First Anti-Corruption Prosecutor's Office of the Procuraduría General de la Nación of Panama./In consideration of the point set forth above, we consider that this case has merit to be investigated by the competent authorities…” (See folio 134 of Ampo Prueba No. 588, Judicial Assistance of Panama, [Nombre01 018]. Emphasis added). Based on the foregoing conclusions, it is possible to affirm that the referral of the information to the Procuraduría General de la República Costarricense by the Requested State occurred once that Nation corroborated the requirement of bilaterality of the criminal conduct in both countries, since if that verification had not occurred, pursuant to Article 6 of the TALM, Panama as the Requested State would have had the power to deny the assistance, an even greater reason to consider that within the procedure contained in the TALM, the issuing of a judicial resolution that coercively decreed the obtaining of that evidence, would have implied, without further reasoning, a flagrant violation of the sovereignty of the Panamanian State and of the powers that the same Article 6 of the TALM grants it as a Signatory State. In short, it is the criterion of the majority of this Chamber, that in the sub júdice, for obtaining evidence 588 in Panama, the order or endorsement of a Costa Rican Judge was unnecessary; therefore, the claim of the Public Prosecutor's Office directed against evidence 588 gathered in Panama through the TALM is granted, and the challenged judgment is annulled insofar as it acquits the defendants [Nombre01 033], [Nombre 006], [Nombre 028], [Nombre 018], [Nombre 041], [Nombre 001], and [Nombre 022]; therefore, the Sentencing Appeals Court (Tribunal de Apelación de Sentencia Penal), with a different composition and in strict adherence to the powers granted in Article 465 of Ley 8837 of May third, two thousand ten, must carry out a new comprehensive examination of this evidence together with the remaining evidence in the case." (The highlighting is from the original). As observed, on the occasion of the cassation appeal filed by the Public Prosecutor's Office, the Third Chamber resolved the claim that the appellants raise here, dismissing it. Not only did it conclude that Evidence No. 588 is lawful, but it ordered that the ordered remittal (reenvío) be carried out on that premise; hence, this court has no jurisdiction to resolve the point. This is a situation that is not surprising, since in good appellate technique, the limits of the remittal are defined by the reviewing body that orders it. It is important to emphasize that although this decision, as well as others adopted by the Third Chamber, were not set forth in the operative part, this in no way frees these second-instance judges from the obligation to respect them, since the cassation judgment, like any other, is a logical-legal unit that must be understood comprehensively. In addition to this, it is also necessary to add that it is not unknown that the criterion expressed by the Third Chamber in this matter is different from that assumed by that same office (composed of tenured magistrates) in file No. 04-005356-0042-PE, specifically, in resolution No. 499 at 11:45 a.m. on May 11, 2011, and in which, by majority vote, the nullity of the evidence gathered in Panama through the Tratado de Asistencia Legal en Asuntos Penales between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (Nombre06.), was declared, as well as that of the evidentiary elements derived from it. However, the contradiction that may arise between the aforementioned judgments, or between this resolution and the mentioned No. 499, is a problem that eventually, if that were the case, will have to be resolved by the cited Chamber, given that what corresponds to this Sentencing Appeals Court is to examine the appeals in the terms ordered by the superior body for this specific case, namely, starting from the premise of the lawfulness of Evidence No. 588. Having said the above, the undersigned conclude that the other defects claimed in the appeals (where other additional arguments presented by the trial court are questioned to, despite not having had an order issued by a Costa Rican judge, legitimize Evidence No. 588, that is, they are additional but related reproaches to the questioning of the lawfulness of that Evidence No. 588, given that this—it is reiterated—has already been established and declared by the Third Chamber), in light of the criterion expressed by the Cassation Chamber for this case, would be ineffective, to the point that—even—hypothetically admitting their existence, the decision would remain unaltered. The a quo held that there was no resolution from a national judge that lifted the bank secrecy of the account of [Nombre01 215] in the case known as CAJA-Nombre01 and that it was indispensable (thus can be extracted from folios 15,336 and 15,337 front of volume XXXI). Notwithstanding this, for the majority vote, Evidence No. 588 (which is, in essence, documentary evidence related to the aforementioned bank account and which arrived in the country in September 2004) is lawful, and therefore, as follows: i) [Nombre01 158], in his personal capacity and as unlimited general agent (apoderado generalísimo sin límite de suma) and sole shareholder of the company [Nombre01 215]., incorporated in Panama, authorized on May 17, 2010, the obtaining and use of the bank documentation obtained in that country corresponding to current account No. [Valor 041] of BAC International Bank (Panamá) Inc., of his represented entity (f. 15,338 front to 15,372 front); ii) there are independent pieces of evidence prior to No. 588 that also guided the same line of investigation: "See, for example, that according to the journalistic publications of evidence No. 592.9 'Print press monitoring from December 9 to 31, 2004', folios 1, 5, and 6 to 11, it is through a report by Nombre49 and Nombre80, journalists of a print medium with national circulation, that on April 21, 2004, readers are informed about a house located in [...] that the then Executive President of the Caja Costarricense del Seguro Social and defendant in this process, [Nombre01 018], rented from whom was at that time the financial manager of Corporación Fischel. Also, in the publication of April 27, 2004, at folio 36, evidence No. 682.1, the appearance of [Nombre01 018] before the Congress of the Republic after his resignation as Executive President of the Caja Costarricense del Seguro Social is made known, a moment in which the accused acknowledges having offered $700,000 to buy the house [...] that was rented to him by [Nombre01 225], noting that in August and October he visited the dwelling, which was the only one he and his family liked, a house later acquired by the former financial manager of Corporación Fischel, a participant in the sale of goods and services to the Caja Costarricense del Seguro Social for millions, it being indicated at that time that the newspaper in charge of disclosing these facts had requested and received from the C.C.S.S. information concerning the different described contracts. The foregoing is important because according to the request from folios 14 to 28 of evidence No. 588, said information was managed by the Prosecutor's Office before the Procuraduría General de la República on May 20, 2004—according to the stamp on folio 2—and the bank documentation related to the account of [Nombre01 215] was received by the Prosecutor's Office on September 10, 2004, so the existence of two independent evidentiary sources prior to said investigative action by the Public Prosecutor's Office is clearly observed. Note that the revelation of facts based on the original journalistic report and subsequent publications, according to evidence No. 529.9 and No. 682.1, date back to April 2004, that is, more than a month before the Prosecutor's Office took the initiative to collect the described bank information, so it could even be affirmed, without room for error, that it was the disclosures in the national press that triggered the judicial investigation of the well-known Caja-Fischel case. On the other hand, the defense also questions the request and the order to lift bank secrecy issued by the criminal judge regarding the bank account of [Nombre 058] at Banco Cuscatlán and the authorization of [Nombre01 028] and [Nombre01 221] to obtain information from that account, topics that have already been analyzed and that, therefore, are now only brought up to address the allegation that this evidence is also unlawful—according to the defense—for being dependent on the bank documentation of the account of [Nombre01 215].. Once again, it must be pointed out that, in the opinion of this panel, the bank documentation that makes up Evidence No. 588 is lawful, but, as an intellectual exercise aimed at guaranteeing the rights of the defendants and due process, hypothetically assuming that in the collection of Evidence No. 588 there was no lifting of bank secrecy ordered by a jurisdictional body and that there was also no legal and valid authorization from the account holder or its administrator for the obtaining and use of such documentation, there are still earlier and independent sources from that information. As previously explained, the data revealed by the national press originated the prosecutorial investigation in the referenced 'Caja Fischel' case, and in the scenario now being evaluated, a similar conclusion is applicable. The requests from the prosecutor's office for the lifting of bank secrecy of the account of [Nombre01 058] at the various financial entities that make up Grupo Cuscatlán are dated September 17 and 29, 2004. The resolutions granting them date from September 21 and 29, 2004, and the requested bank information is delivered to the accusing body on September 28 and 29, 2004, according to notes from folios 5 and 90 of Volume I. However, prior to the Prosecutor's Office knowing the requested data, the national media already revealed details about [Nombre01 058] and his link with [Nombre01 091] and directors of the Instituto Costarricense de Electricidad. Note that the report by journalists Nombre09 and Nombre03, folio 19 of evidence No. 592.1, although published on September 28, 2004, in a medium with national circulation, the information had been gathered since the previous day, namely September 27, 2004. The news communicates that two ICE directors had received $3.6 million that came from [Nombre02 060], indicating about the money transfers to [Nombre01 064] and to [Nombre 022] through the company of the latter, [Nombre01 300], and the wife of the second, Mrs. [Nombre02 080]. It was said that the funds were transferred from the account that [Nombre 058] maintained at Cuscatlán International Bank and that he had received such funds from the account of [Nombre01 060] with ABN AMRO Bank. It was also mentioned that representatives of the journalistic medium, on September 27, had contacted [Nombre01 080] by phone at her home and she had told them she would give information later, although she later did not answer their calls, while [Nombre01 064] did not respond to the messages and [Nombre01 022] explained that he had hearing problems, an attempt also being made—unsuccessfully—to consult [Nombre01 041], although there was communication with [Nombre01 095] and with [Nombre01 028]. It was reported that from the account of [Nombre 058] payments had been made to companies, individuals, and politicians, citing the transfer of $100,000 to [Nombre 213], who explained that it was a donation from [Nombre02 091] to the political campaign of leader Nombre81; reference was also made there to funds received by [Nombre01 063] that passed through the account of [Nombre 215] of the president of Corporación Nombre01[158] and to other persons consulted by the journalists. At folio 20 of evidence No. 592.1 (whose originals appear added to folios 2 and 3 of Volume I) also appears the publication of the journalistic interview conducted that same day with [Nombre01 213], who acknowledged having received the contribution from [Nombre01 091] to the campaign of Nombre81 after a meeting at which the defendant [Nombre01 041], manager of said company, and a 'French gentleman' whose name he told the journalists he did not remember, had been present. On the other hand, at that moment, the described bank documentation reveals the transfers from [Nombre01 060] to [Nombre01 058], but not its detailed analysis, which is possible much later with the intervention and study of the experts from the Accounting and Financial Studies Section of the OIJ. Hence, it cannot be dismissed either that in the interim, that is, while the bank data marks new paths in the investigation and its concordance with each of those involved, other sources revealing information also arise independently of the cited source No. 588. The elements that could be cited are multiple, but to serve as an example:

- all the information gathered by the declarants [Nombre02 116] and [Nombre01 164], employees of Corporación [Nombre02 091], who relate meetings held with the accused [Nombre02 041] at the beginning of October 2004 as a result of the journalistic revelations that linked [Nombre01 091] with the payment to public officials and how in the second meeting they held with [Nombre01 041], upon asking him about what the newspapers reported (regarding payments to [Nombre01 274], sister of [Nombre01 041]; to a son of this lady; and to [Nombre01 001], by [Nombre01 058], all with the intervention of [Nombre01 041]), he admitted to having participated in such payments and told them about 4 people to whom they had been made, namely: [Nombre01 022], [Nombre01 001], [Nombre01 064], and [Nombre01 018], the last of whom had not even been mentioned in the journalistic reports; - evidence No. 110 formed by the authorizations that since September 20, 2004, both Mrs. [Nombre02 221] and the accused [Nombre01 028] had addressed to Grupo Financiero Cuscatlán de Costa Rica S.Nombre46. and to Cuscatlan International Bank and Trust Co Ltd., expressing that, irrevocably and in an unlimited manner, they authorized the provision of any type of information and/or documentation that any of the supervisory authorities of the national banking system or Costa Rican judicial authorities have requested or may request in the future regarding the operations of [Nombre02 058]., so this would also be an independent and prior means to obtain the described bank documentation; - the documentation provided by Corporación [Nombre 060], among others, evidence No. 19 to No. 22, No. 23, No. 24, No. 25, No. 26, No. 27, No. 28, No. 29, No. 30, No. 31, No. 32, No. 33, No. 34, No. 35, No. 36, No. 36, No. 37, No. 38, No. 39, No. 40, No. 41, No. 42, No. 67, No. 69, No. 71, No. 74, and No. 75, the latter referring to the reports submitted by [Nombre02 114] and by [Nombre 058].

in relation to the consultancy contracts; Name02 as the one that was seized at the company [Name 091]: No. 55, No. 57, No. 59, No. 80, No. 81 and No. 630; </span></p><p style="margin:0pt 28.35pt 14.1pt 30.15pt"><span style="font-family:Arial; font-style:italic">-the statements of witnesses such as [Name01 173] and Name01, who not only provide information related to the facts to the Prosecutor's Office, but also provide documentation that is later used as evidence by that representation, among others: No. 267 and No. 404;</span></p><p style="margin:0pt 28.35pt 14.1pt 30.15pt"><span style="font-family:Arial; font-style:italic">-the documentation seized at the facilities of the Instituto Costarricense de Electricidad: No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8, No. 9, No. 10, No. 11, No. 17 and No. 19, or requested from other government agencies: No. 15, No. 16, No. 82, No. 85. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-style:italic">In conclusion, although for this court there is absolute certainty that evidence No. 588 is lawful and only that verification would give rise to the rejection of the protest, going further and based on a hypothetical exercise in which such source is assumed to be spurious, the truth is that the request made by the defense would also not be admissible because there are independent sources prior to the banking disclosure that is branded as illegal, both with respect to those of the "Caja-Fischel" case and those that are of interest here.”</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">(F. 15,377 to 15,381 front, the underlining is from the original); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iii)</span><span style="font-family:Arial"> in this case, evidence No. 588 gathered in another proceeding constitutes, in addition to evidence, a </span><span style="font-family:Arial; font-style:italic">notitia criminis</span><span style="font-family:Arial">. The connection of [Name01 018] with the case c.c. Caja-Name01 came to light through a journalistic investigation made public in April 2003, one month before the banking documentation was requested from Panama. The evidence was requested to clarify the purchase of a [...], as well as the relationship between [Name01 018], [Name01 225], the C.Name82 and the Fischel company. This information reached the Prosecutor's Office on September 10, 2004. Now, finding in that proceeding and in particular, in that documentation, proof of deposits from SNQC S.A. to the account of [Name01 215] was a chance finding, because what was sought was information pertaining to the relationship between the C.C.S.S., the Fischel / [Name 215] corporation, and [Name01 018]. In this regard, says the majority opinion, with respect to SNQC S.A., evidence No. 588 is a </span><span style="font-family:Arial; font-style:italic">notitia criminis</span><span style="font-family:Arial"> (f. 15,381 to 15,383 front). </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iv)</span><span style="font-family:Arial; font-weight:bold; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span><span style="font-family:Arial">Based on the legitimate investigations that were being carried out, it was inevitable and/or certain that the connections between [Name01 060], [Name01 058], and the ICE would be discovered (F. 15,387 TO 15,393 front). As already set forth above, the appellants understand that the foregoing reasoning is not legitimate. In this regard, they argue that the consent of [Name01 158] granted years after the evidence was gathered does not eliminate the fact that the information was gathered without a court order lifting bank secrecy. Likewise, say the challengers, the evidence cited by the trial court as autonomous and subsequent to No. 588 is not such, to the point that without it, the case would not have been initiated. The same applies regarding what the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> deemed as inevitable or chance findings in the CAJA-Name01 case and which do not have such character, or regarding the consideration of evidence No. 588 as a </span><span style="font-family:Arial; font-style:italic">notitia criminis</span><span style="font-family:Arial"> as far as this proceeding is concerned. These are arguments that were fruitlessly formulated to grant legality to evidence that, from its origins, presents an absolute defect that cannot be corrected, namely, having been obtained without the endorsement of a Costa Rican judge. After examining the foregoing, this Criminal Sentence Appeals Court concludes that, even assuming that the reasonings set forth by the majority opinion are not acceptable, </span><span style="font-family:Arial; text-decoration:underline">they are approaches that were intended to legitimize evidence that, without said corrections, for the trial court </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">was illegal</span><span style="font-family:Arial"> </span><span style="font-family:Arial; text-decoration:underline">for having been obtained without a jurisdictional order</span><span style="font-family:Arial">. However, given that </span><span style="font-family:Arial; text-decoration:underline">the Third Chamber concluded that said order was unnecessary</span><span style="font-family:Arial">, all those reasonings and the errors they may contain lose relevance, to the point that they can hypothetically be removed without this entailing a modification of what was agreed. As a consequence of the foregoing, their questioning by the defense would also be inconsequential. In other words, and by way of example, based on the criterion set forth for this case by the Court of Cassation, evidence No. 588 is not lawful because [Name01 158], years later, endorsed the use of the information; because there was independent and autonomous evidence to No. 588 that also guided the inquiries toward [Name01 058]; or because the role of the aforementioned corporation was a chance or inevitable finding. All highly rebuttable arguments. </span><span style="font-family:Arial; text-decoration:underline">It is lawful, according to the Third Chamber, because in the case of evidence to be gathered in Panama under the protection of the T.A.L.M., a ruling by a national judge lifting bank secrecy was unnecessary</span><span style="font-family:Arial">. Therefore, all the other arguments invoked by the majority opinion to legitimize the evidence, which - it is reiterated - it had to resort to because it considered it illegal given the absence of a jurisdictional order, lose importance. Finally, regarding the document that [Name01 158] presented to this court on August 27, 2015 (cfr. 176,925 front, volume XLIV), in which he stated his willingness to revoke the consent he had given for the banking information of the company [Name01 215] to be used in this proceeding, it is enough to underline that the decision of the Third Chamber, in the sense of considering evidence No. 588 legitimate, was not based on that consent, but on the conclusion that an order from a national judge was unnecessary in the case of evidence to be obtained in Panama. Due to the foregoing, it is as inconsequential that the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> appealed to that argument to legitimize the referenced evidence, as it is that [Name01 158], with his revocation, intended to strip it of all value. Therefore, the objections formulated by attorney Wilson Flores Fallas, defender of [Name01 006], and by the accused [Name01 001], [Name01 028], [Name01 041], and [Name01 018], in a personal capacity, are declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXIII.- Appeal in cassation filed by [Name01 001], [Name01 028]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold">, [Name01 041] and [Name01 018], in a personal capacity. Sole ground. Violation of Article 369 subsection j) C.P.P. Seventh point. An attempt is made to validate evidence obtained through the lifting of bank secrecy for the account of [Name 058] at Banco Cuscatlán in the Bahamas, by means of an authorization from [Name01 028] that is read erroneously.</span><span style="font-family:Arial"> According to the appellants, the authorization analyzed on page 887 (pagination of the judgment) was incorrectly interpreted. The five notes signed by [Name01 028] and [Name01 221], through which they authorize the delivery of information related to the company [Name 058] to AUTHORITIES THAT SUPERVISE THE NATIONAL BANKING SYSTEM OR TO BANKS IN THE BAHAMAS OR JUDICIAL AUTHORITIES OF COSTA RICA (evidence No. 110), state something different from what the court considers: “</span><span style="font-family:Arial; font-style:italic">Delivery to the Prosecutor's Office is not authorized without a Judge's order, since that body is not a judicial authority. Therefore, when this lifting of bank secrecy for the accounts of [Name01 058] at Banco Cuscatlán is analyzed, both at Cuscatlán International Bank in the Bahamas and at those belonging to the national banking system, it is necessary to keep this note in mind, with its considerations and limitations: judicial authorities, not the Prosecutor's Office. The entire chronology of said delivery of information can be seen from page 890 to 889 and can be easily read. The first order to lift bank secrecy DOES NOT INCLUDE EITHER THE GRUPO FINANCIERO CUSCATLÁN OR CUSCATLÁN INTERNATIONAL BANK, which can be easily concluded from page 883 and from reading Pages 3841 to 3858 of the records, which contain the judicial order of Judge Vargas Bonilla. The order refers to lifting the bank secrecy of the accounts of [Name01 058] in the entities of the National Banking System, without obviously including Cuscatlán International Bank, not only because it does not belong to said System, but because a few days later, by judicial order, this lifting was expanded. The order of September 21 was complied with by Mr. [Name01 229]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">on September 27 and 28, as indicated in the same Page 883 of the judgment and recorded on pages 6 to 13, 15 to 79, and 82 to 89 of Volume I of the main file, from which it is observed that the aforementioned Mr. [Name01 229] exceeded the judicial order received and sent information from Cuscatlán International Bank, an entity not included in the order that covered neither that entity nor Grupo Financiero Cuscatlán, as will be seen. It is on Page 6 that the presence of [Name01 091] first appears in the case, through the transfers allegedly sent by her to [Name01 058]. This evidence was obtained illegally, since there was no judicial order that covered the accounts of [Name01 058] in that international banking entity, there was no authorization from [Name01 028]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">or from [Name01 221] to deliver information without a Judge's order, which did not exist, nor was there even a request to lift the bank secrecy of Grupo Financiero Cuscatlán. Therefore, it is false that said documentation was provided with a Judge's order or with authorization from the company owning the account, and its content and scope become illegal and must be excluded from the records and fully removed from the judgment and its assessment. To be more thorough, it is by order of Judge Name60 on September 29 that the bank secrecy for Grupo Financiero Cuscatlán is lifted, and not before, which is recorded on pages 3829 to 3839 of Volume IX and is referred to in the judgment on Page 880. By that date, Mr. [Name01 229]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">had already illegally sent, without a Judge's order or authorization from the account owner, the information related to the operations of [Name01 058] at Cuscatlan International Bank, which generates its invalidity and necessary exclusion from the proceeding. It is clear that before this illegal sending, the Prosecutor's Office hurried the next day to correct the error of [Name01 229]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which is understandable on their part, but the complacent attitude of the majority judges in endorsing the use of this spurious and illegal evidence can never be admitted </span><span style="font-family:Arial">…” (F. 17,276 and 17,277 front). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXIV.- The appellants are not correct</span><span style="font-family:Arial">: As was proven, [Name01 028] was responsible for receiving the money from [Name02 060] in current account number [Value 012] of [Name 058]. with Cuscatlan Internacional Bank &amp; Trust Co. Ltd. Once with such funds at his disposal, he had to proceed to give instructions to the indicated bank to distribute the money. For the defense, the information obtained in relation to the aforementioned account is illegitimate, because: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span><span style="font-family:Arial"> as is evident from the authorizations given by the account holders ([Name01 028] and [Name01 221], evidence No. 110), the authorization was issued to deliver information to the authorities that supervise the national banking system or to banks in the Bahamas, or to the judicial authorities in Costa Rica and not to the prosecutor's office, which is not a judicial body; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">ii)</span><span style="font-family:Arial"> the first order to lift bank secrecy did not include Grupo Financiero Cuscatlán or Cuscatlán Internacional Bank, but only the national banking system, and it was only later that it was expanded. That order was complied with by [Name01 229], a person who overstepped his bounds, as he sent information from Cuscatlán Internacional Bank. Therefore, it is false that the documentation was provided with a judge's order and with the authorization of the holders; </span><span style="font-family:Arial; font-weight:bold; font-style:italic">iii)</span><span style="font-family:Arial"> it is with the order of Judge Name60, of September 29, that it was ordered to lift the bank secrecy in Grupo Financiero Cuscatlán. However, by that date, [Name01 229] had already sent all the information generated by Cuscatlan International Bank. In these claims, the challengers are not correct. As is well explained in the appealed judgment, specifically from page 15,244 to 15,255 front of volume XXXI and from page 15,665 to 15,669 front of volume XXXII, which this chamber confirmed by studying evidence No. 110, a folder labeled </span><span style="font-family:Arial; font-style:italic">“Banco Cuscatlán [Name01 058] Documents Acta 370849 Pages 216 (8 pages)”</span><span style="font-family:Arial"> , in this folder there are two notes signed by [Name02 221], dated September 20, 2004. One is addressed to Grupo Financiero Cuscatlán Costa Rica S.Name46. and the other to Cuscatlan Internacional Bank &amp; Trust Co. Ltd., in the Bahamas. In both, this person authorizes </span><span style="font-family:Arial; font-style:italic">“…irrevocably and unlimitedly, so that they may provide any type of information and/or documentation that has been requested or may be requested in the future by any of the authorities that supervise the National Banking System or judicial authorities of the Republic of Costa Rica, in relation to any of the operations, both active and passive, that [Name02 058] has maintained…”. </span><span style="font-family:Arial">In the note she addresses to Grupo Financiero Cuscatlán de Costa Rica S.A., Mrs. [Name02 221] adds the following: </span><span style="font-family:Arial; font-style:italic">“…that [Name 058]. has maintained … with the subsidiary companies of Grupo Financiero Cuscatlán de Costa Rica S.A., including Cuscatlan Internacional Bank &amp; Trust Co Ltd., domiciled in the Bahamas.”</span><span style="font-family:Arial">. Likewise, in the note that was sent to Cuscatlan Internacional Bank &amp; Trust Co Ltd., she added: </span><span style="font-family:Arial; font-style:italic">“…that [Name02 058]. has maintained,… with Cuscatlan Internacional Bank &amp; Trust Co Ltd., domiciled in the Bahamas, a company that is part of Grupo Financiero Cuscatlán de Costa Rica, S.A.”</span><span style="font-family:Arial"> (cfr. pages 3 and 4 front). The same can be said regarding [Name01 028], since in the same folder, on pages 5 and 6 front, two authorizations signed by him can be seen in the same terms set forth and that were also sent on September 20, 2004. Now, on page 7 front, another note signed by [Name01 028], dated September 21, addressed to Cuscatlan Internacional Bank &amp; Trust Co Ltd., is seen, in which he authorizes, </span><span style="font-family:Arial; font-style:italic">“…irrevocably and unlimitedly, so that they may provide any type of information and/or documentation that has been requested or may be requested in the future by any of the authorities that supervise the National Banking System or judicial authorities of the Republic of the Bahamas, in relation to any of the operations, both active and passive, that [Name01 058] has maintained… with Cuscatlan Internacional Bank &amp; Trust Co Ltd., domiciled (sic) in the Bahamas, a company that is part of Grupo Financiero Cuscatlán de Costa Rica, S.A.” </span><span style="font-family:Arial">(F. 7 front). In addition to these authorizations, we have that at the request of the Public Prosecutor's Office, the lifting of bank secrecy was ordered at 4:40 p.m. on September 21, 2004, for several legal entities, among which [Name01 058] is listed. Banco Cuscatlán and Cuscatlán Puesto de Bolsa were ordered to deliver the information on the movements of the corporation [Name01 058]. (thus, p. 3,863, volume IX). Subsequently, at 8:12 a.m. on September 29, 2004, the Criminal Court of the Second Judicial Circuit of San José ordered the lifting of the secrecy of the banking and stock market information related to each and every one of the financial entities that make up Grupo Financiero Cuscatlán (cfr. p. 3,839 front). The appellants say that [Name01 229], then secretary of the board of directors of Grupo Financiero Cuscatlán de Costa Rica S.A., sent the information from Cuscatlan International Bank &amp; Trust Co. Limited even though the judicial order issued days earlier did not lift the bank secrecy for that bank in particular, or for the entire Grupo Financiero Cuscatlán, and therefore, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> court erred in concluding that such action was covered by the cited order. Likewise, according to the challengers, it cannot be argued that the information was obtained under the protection of an authorization from the account holders, since they only authorized providing the information to </span><span style="font-family:Arial; font-style:italic">the judicial authorities</span><span style="font-family:Arial"> and the Public Prosecutor's Office is not one of them. These are claims that this chamber does not accept, for several reasons. First, because even if it is admitted that Mr. [Name01 229] sent on September 28, 2004, information on the transfers of funds abroad made by [Name02 058]. through the international department of Banco Cuscatlán de Costa Rica S.A., Name02 as well as on the international transfers received in the current account of [Name01 058]. through Cuscatlan International Bank &amp; Trust Co. Limited, given that the judicial order issued days earlier only covered Banco Cuscatlán and Cuscatlán Puesto de Bolsa, </span><span style="font-family:Arial; text-decoration:underline">it is undeniable that the referenced data would have been inevitably discovered, based on the investigations that were being carried out up to that moment</span><span style="font-family:Arial">. Note that by that date there was a judicial order requiring from Banco Cuscatlán </span><span style="font-family:Arial; font-style:italic">all existing information regarding the movements made by the company [Name01 058] through it</span><span style="font-family:Arial">. Furthermore, there were several authorizations signed days earlier by the accused [Name01 028] himself and by his wife, [Name 221], addressed to Grupo Financiero Cuscatlán Costa Rica S.A. and to Cuscatlan International Bank &amp; Trust Co. Ltd., so that all information and documentation on the transactions in which said company was involved be provided to the judicial authorities. In this way, the requesting body was already more than aware that the transactions made by [Name01 058]. occurred under the protection of that financial conglomerate and that Cuscatlan Internacional Bank &amp; Trust Co. Ltd. was part of it. That is, even if it is </span><span style="font-family:Arial; font-style:italic">hypothetically </span><span style="font-family:Arial">admitted (and the hypothetical nature of the situation is underlined) that [Name01 229], at first, sent information not covered by the lifting of bank secrecy ordered on September 21, 2004, the defect would not lead to the exclusion of the mentioned evidence, because by reason of the same authorizations issued by the holders, Name02 as well as the very progress of the investigations, which by then, in addition to pointing to the company [Name02 058]. as involved in potentially criminal acts, indicated that said company had operations with Banco Cuscatlán, it is undoubtable that the data managed by Grupo Financiero Cuscatlán Costa Rica S.A., to which that bank belongs, as well as Cuscatlan International Bank &amp; Trust Co. Ltd., would be discovered. On the other hand, all the banking movements made by order of [Name01 028] took place within Costa Rica, and therefore, when requesting information from Banco Cuscatlán on the transactions carried out by the company [Name01 058] through it (an extreme that was expressly covered in the first order issued by the corresponding jurisdictional authority), the operations carried out by that corporation under the direct correspondent agreement that Cuscatlan International Bank and Trust Co. Ltd. maintained with Banco Cuscatlán de Costa Rica S.A. were also covered. In the third place, this chamber considers reasonable what the trial court indicated, namely, that the documentation delivered by [Name01 229] on September 28, in response to the order to lift bank secrecy issued on September 21, 2004, by Judge Damaris Vargas Bonilla (an order that was notified that same day at the central offices of Banco Cuscatlán, cfr. page 3,869 of volume IX), was in the country, at the disposal of this company, since the operations were carried out within national territory and, as has been pointed out, the financial group had its headquarters in Costa Rica at that time, with which it could not be affirmed, or not without speculating, that it was obtained irregularly from other banking entities. Finally, this court also does not consider that the authorizations issued by [Name01 028] and [Name01 221] were erroneously interpreted. Observe that in these it is endorsed that </span><span style="font-family:Arial; font-style:italic">the judicial authorities of the country</span><span style="font-family:Arial"> be informed of all the information related to the transactions carried out by [Name02 058] that is in the possession of Grupo Financiero Cuscatlán de Costa Rica S.A., Name02 as well as of Cuscatlan International Bank and Trust Co. Ltd., which is precisely what happened here. The information provided on September 28, 2004, challenged by the appellants who understand that the order to lift bank secrecy did not include the financial group and within it, Cuscatlan International Bank and Trust Co. Ltd., was sent by [Name01 229] in response to the </span><span style="font-family:Arial; font-style:italic">judicial order</span><span style="font-family:Arial"> issued by Judge Vargas Bonilla. Such is the case that in the document on page 5 front of volume I, both the Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios and the Juzgado Penal del Segundo Circuito Judicial de San José appear as recipients. That is, despite the fact that the endorsement of the holders of the fundamental right would have been sufficient to proceed to gather the information without a judicial order, in this particular case, the cited order was issued, and if the information was sent, it was as a consequence of it, and to that extent, it was also a jurisdictional authority that was informed of its content, complying with what was foreseen in the same authorization given by [Name01 028] and [Name01 221]. For the reasons stated, the ground is declared without merit. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXV.- Appeal in cassation filed by attorney José Miguel Villalobos Umaña, private defender of [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold">and sentence appeal (thus converted) filed by the accused [Name01 018] in a personal capacity, authenticated by attorney Hugo Santamaría Lamicq. </span><span style="font-family:Arial">In the writ visible from pages 17,241 to 17,263 front of volume XXXVI, attorney José Miguel Villalobos Umaña, defender of [Name01 018], filed an appeal in cassation against judgment No. 167-2011, often mentioned. Subsequently, through a brief visible on pages 172,745 to 172,767 front of volume XXXIX, the accused [Name01 018], in a personal capacity, proceeded to convert the appeal in cassation filed into a sentence appeal, maintaining its content. Therefore, they are resolved jointly, but not without first warning that the textual quotes that will be made below correspond to the second. </span><span style="font-family:Arial; font-weight:bold">First ground. Erroneous application of the prescription rules enshrined in Articles 31, 32, 33, 361, subsection a) and 369 of the Code of Criminal Procedure. </span><span style="font-family:Arial">The court concluded in the majority opinion that the criminal action against [Name01 018] was not time-barred. On the contrary, Judge Camacho Morales accepted the exception. For the appellant, the substantive issue has to do with the application of Article 62 of Law No. 8422 of October 6, 2004, called the Law against Corruption and Illicit Enrichment in Public Service, hereinafter LCC, which came into force on October 29, with its publication in La Gaceta No. 212 of that day. According to the court itself, had it not been for that rule, the case would already be time-barred, so the appeal aims to challenge this interpretation, which incorrectly applies the prescription rules of the procedural law and of the LCC itself, Name02 as well as some rulings of the Constitutional Chamber that are binding. In the judgment, it is stated that by not reducing the prescription period by half as established in Article 33 first paragraph of the Code of Criminal Procedure, because what is provided in numeral 62 of the LCC is applied, the criminal action would prescribe on November 30, 2007, and not on May 30, 2006. Therefore, it is considered vital to establish whether the cited Article 62 is applicable in this matter, since if it is not, the criminal action would be time-barred. The trial court states that it does not share the defense's thesis, in the sense that it is a reduction of time limits to control the duration of the proceeding and not a prescription issue. This is important, because if it is the former, the rights acquired by the accused must be respected. Control of the duration of the proceeding is a fundamental rights issue, which derives from Article 41 of the Political Constitution, insofar as it contemplates swift justice. However, increasing the time limits for the duration of the proceeding to the detriment of the accused is synonymous with applying the law retroactively to the detriment of the acquired rights of those subject to justice.

The defense's position rests on what was set forth in vote No. 4397-99 of the Constitutional Chamber, issued at 4:06 p.m. on June 8, 1999, which in its considering clause VI states that "THOSE TERMS are not properly of prescription, but rather of reduction of the time limits for the processing of the procedure according to the idea of controlling its duration…" (F. 172,747 front). The same was indicated in resolution No. 428-00. That is, if they are rules related to the control of the duration of the process, they cannot be applied to the detriment of the accused, since they affect their acquired rights. But independently of the foregoing, in case of disagreeing with this thesis and deciding that we are dealing with prescription rules and that therefore, they can be applied retroactively, the Constitutional Chamber has said that there must be an express rule authorizing that retroactive application. Therefore, the point to consider is whether that provision was given in Article 62 LCC. To define the foregoing, the first thing to consider is vote No. 4397-99 of the Constitutional Chamber, which, in what is relevant, indicates: "… RULES CANNOT GOVERN PAST ACTS… EVENTUALLY A PAST BEHAVIOR CAN BE ASSESSED WITH A RULE SANCTIONED SUBSEQUENTLY, A JUDGMENT THAT IS SUBJECT TO A REGULATED POWER… IT ONLY PROCEEDS BY EXPRESS MANDATE OF THE LAW… IN CRIMINAL PROCEDURAL MATTERS IT IS NOT PROHIBITED FOR THE LAW TO BE APPLIED RETROACTIVELY, AS IT ITSELF ESTABLISHES, ONLY WITH RESPECT TO PENDING CASES…" (F. 172,747 front). The Chamber alludes to all types of rules and not only to substantive ones, since the considering clause where the topic is addressed is called "Of the application of procedural law." That is, if there is no express provision allowing the application of rules not in force at the time of the acts being judged, such application would not be possible. Now, the court accepts that the application of Article 62 to acts occurring before its entry into force depends on legislative authorization, an authorization that the lower court (a quo) believes exists. In this regard, it is explained in the appeal: "… Let us then analyze the interpretation of the Court in its majority vote. At Folio 796 the Judges affirm that Article 62, although actually due to an excusable error they consider that it is 60, does contain the presupposition that this Defense misses. They affirm that the legislator made generic reference to all processes in which crimes against the duties of public office are charged and point out that this was done WITHOUT DISTINGUISHING BETWEEN CRIMES FOR PENDING CASES OR FOR FUTURE INITIATION. That is precisely the Judges' error. There is no express provision, as required by the Chamber, so they resort to the expedient of considering that there is no express exclusion, when the reasoning is the opposite: If there is no express provision, the rules of Article 62 cannot be applied to pending cases but exclusively to those of future initiation after October 29, the date on which Law 8422 was published. It is not a matter of indicating that since application to previously initiated cases is not excluded, this is possible: the constitutional rule established by the Chamber is the inverse; if there is no express provision, that interpretation is not possible. The Judges admit that there is no express provision, but rather no express exclusion, which is not the same thing, but rather the opposite, which evidences the argumentative error of the majority. It is false that the legislator specified that this provision not reducing the prescription period by half would be applied to pending cases; what the legislator did was precisely not to indicate it, which instead of presuming its provision, demonstrates its non-provision and in the face of it, one can only deduce that Article 62 of the LCC only governs future cases from October 29 onwards and not those initiated prior to that entry into force, as is this one. It is not a matter of arguing that the legislator did not distinguish between pending and future cases; rather, it must be concluded that had it wished for that numeral 62 and its provisions to be applied to pending cases, like the one at hand, Name02 should have indicated it, in accordance with the binding provisions of the Constitutional Chamber already indicated. If one reads that numeral 62 objectively, it is observed that its wording is even of a future nature, as appropriate: THE CRIMINAL ACTION REGARDING CRIMES... SHALL PRESCRIBE… THE FOLLOWING RULES SHALL GOVERN… Thus, it only indicates that they apply to future cases and not to pending causes, and by not doing so, it is not possible to amend the legislator even if the Judges so desire for motivations that this defense does not know, but intuits. Note that there is no transitional provision to Article 62 either at the end of the rule or in the Transitional Provisions of the Law itself, which has two without including the one the Judges shamelessly invent. If we compare what the legislator did when it approved the Code of Criminal Procedure, when it expressly indicated which new provisions applied to ongoing proceedings, we can understand the binding constitutional interpretation of the Chamber that these Judges seek to omit and disobey …" (F. 172,748 to 172,749 front, the transcription is literal). In the particular case, [Nombre01 018] testified after October 29. However, as the case initiated before that date, the mentioned Article 62 was not applicable to him, save for an express legislative rule, which does not exist. The alleged prescription occurred as of May 30, 2006, before the finality of the declaration of complex processing of this case, which occurred in July of that year, or the convening of the preliminary hearing, both acts subsequent to the moment in which the prescription took place and which therefore, cannot have interrupting effects to the detriment of the accused [Nombre01 018].

**XXVI.- The ground is dismissed.** Just as we explained from the first considering clauses of this resolution, the issue of prescription was expressly settled by the Third Chamber, concluding that the criminal action has not prescribed in the particular case of [Nombre01 018] and that the ordered remand must start from that basis. It is a decision that in any case, this chamber shares, understanding that at the moment [Nombre01 018] was questioned (namely, on November 30, 2004), Article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, was already in force, according to which with the interrupting act the computation of the prescription period started anew completely, without any reduction. The appellant says that the cited law cannot be applied to cases that, like the present one, were already underway as of October 29, 2004. This is a position that is not acceptable, since dealing with rules of a procedural or instrumental nature (and the Constitutional Chamber has said that prescription rules have that character), these govern immediately and prospectively, whereby it will suffice that the procedural act provided for in those rules is carried out during its validity for its effects to be applied, regardless of whether the procedure within which that act takes place was already underway. It is important to note that what is proscribed by Article 34 of the Political Constitution is that rules have retroactive effects to the detriment of any person and not that they do so from their entry into force and prospectively, as happens here. In summary, if procedural acts, at least as a matter of principle, are governed by the regulations in force at the time of their execution, the questioning statements made after October 29, 2004, among them that of the accused [Nombre01 018], are subject to the provisions of the mentioned Article 62. In line with the foregoing, this chamber concluded in considering clause VI.-, to which the appellant must refer, that in the case of the accused who made questioning statements before this date ([Nombre01 033], [Nombre01 001] and [Nombre01 022]) the reducing effect of the prescription period that Article 33 subsection a) C.P.P. associates with that procedural act cannot be suppressed by invoking the cited numeral 62, since this was not in force at that time and it is not possible to apply it retroactively, pretending that its effects are associated with procedural acts carried out under the protection and with the consequences provided for in a different regulation. For the reasons stated, the ground is dismissed.

**XXVII.-** Given the existing relationship, this chamber will jointly resolve the second and third grounds of the challenges. **Second ground. Erroneous application of the rules pertaining to the lifting of bank secrecy without a judicial order for the respective case, with infringement of Articles 24 of the Political Constitution; 615 of the Commercial Code; 1, 2 and 3 of Law No. 7425, of August 9, 1994, Law on seizure, registration and examination of private documents and intervention of communications.** The defense opposed the bank evidence from Banco San José, in the Bahamas, requested in the Caja-Nombre01 case and provided as evidentiary material in this matter (evidences 543, 544 and 545), understanding that it had been requested exclusively for the case called Caja-Nombre01 and not for this process and, furthermore, that there was an “alteration of translations” of documents by the Public Ministry. With that evidence, it was intended to verify the receipt of certificates of deposit by [Nombre01 018] with resources from [Nombre01 091]'s and [Nombre 058]'s funds, which were deposited in the BAC Bahamas Bank Limited in that country. The court affirmed that the evidence comes from the Banco de San José in the Bahamas. That is false. 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 vote maliciously tries to make believe. It is enough to read the evidence to appreciate that they are two different banks and not a simple branch. The foregoing is also verified when considering that the Prosecutor's Office required a judge's order to send the letters rogatory to the Bahamas, to request the bank evidence. If it had been the Banco de San José itself, it would have sufficed to request the information from BAC San José in Costa Rica. Although the evidence comes from the Caja-Fischel case, the judges consider (see f. 873 to 875) that an express judicial order was not necessary to use it in this process. According to the ruling, a judicial order in any criminal case is enough for it to be used in another, a position that the court had assumed, with the defense's protest, since May 14, 2010. The challenger explains, referring to the questioned ruling: "… The Judges write thus: Hence, the sources of evidence identified based on the stated proceedings may be used in the criminal processes in which they are required, since the described rule does not restrict their use to a specific investigation insofar as it does not indicate that they can be used for the clarification of a criminal matter in singular but rather of several criminal matters in plural...” (Folio 874).” (F. 172,750 front). This argument, it is indicated in the appeal, is questionable: “Thus, they interpret that although that evidence from the Bahamas was obtained through a judicial order issued within the CCSS-Fischel case, as both are criminal matters, it could be and in fact was, used in the Name64 091] case, because both are criminal cases. This thesis does not resist the slightest analysis. First, because it is only a suspiciously grammatical argumentation with absolute omission of legal criteria. Let us see. They simply say that since the law indicates that the seizure, registration or examination of private documents can be ordered to clarify MATTERS submitted to the knowledge of criminal Judges, that documentation can be used for any case of that criminal nature. The Judges omit to indicate that that rule has a constitutional context in Article 24 and that the pluralization of the noun MATTERS is not in the sense that it can be used in any of them, but because the constitutional text refers that THE COURTS OF JUSTICE, thus, in plural, can order the seizure, registration and examination of private documents, when it is absolutely indispensable to clarify matters submitted to THEIR KNOWLEDGE. It deals with matters in plural because it refers to the Courts in plural, not as the Judges want to read it in that a specific Court can order the seizure of documents for any case, the specific one it hears and other future or past ones, without limit of time, competence or matter, as long as it has a criminal nature, pursuant to Article 2 of Law 7425. What the Constituent and the legislator means and says is that each criminal Judge can order the seizure, registration and examination of private documents to investigate the matters they hear, not just any one, even if it is not the specific one in question. And this is Name02 because the Constitution also requires that this order can only be issued when IT IS ABSOLUTELY INDISPENSABLE, that is, a case-by-case, request-by-request and cause-by-cause analysis is required, since if it is interpreted that the lifting of privacy is for any case, that exceptional analysis (ABSOLUTELY INDISPENSABLE) would not be being done for other cases that they do not even hear. The Judges' thesis would lead to deconstitutionalizing the guarantee of Article 24, since the required analysis would not be being done for other cases; the privacy of documents disappears with the first order, without judicial control being necessary in the future for the accused …” (F. 172,750 and 172,751 front). The court's criterion would lead to requiring only one judicial order to lift bank secrecy in a specific case, given that from then on, that secrecy will disappear for any other case. It opens the possibility of using the information obtained in the future, in any process, whether prior or subsequent, even in relation to acts that have not occurred and without jurisdictional control in those cases. Furthermore, if the limited grammatical thesis of the court is followed, the truth is that Law No. 7425 itself, in its Article 2, uses different wording, saying that the Judge may order “THE SEIZURE, REGISTRATION OR EXAMINATION OF ANY PRIVATE DOCUMENT, Name11 THAT MAY SERVE AS INDISPENSABLE PROOF OF THE COMMISSION OF SOME CRIMINAL CONDUCT,” in singular, not in plural and much less for any case, even one that has not even arisen..." (F. 172,751 front). For the appellant, the precedents of the Third Chamber only endorse the use of evidence that has arisen as a product of the lifting of bank secrecy in the specific case. Although the use of evidence has been allowed in cases different from the one in which it was obtained, this has not been Name02 with bank information, the foregoing because the protection of the administered party against the administration is greater when it comes to private documents, which receive constitutional protection. He considers the criterion expressed by the trial court even more serious, in the sense that based on Article 276 of the Code of Criminal Procedure, evidence obtained in other criminal cases could be incorporated as simple documents, even when that evidence is a product of the lifting of bank secrecy. Numeral 334 of that same regulatory body would only authorize incorporating by reading evidence obtained in accordance with what the code indicates, and evidently it is not possible to bring in those derived from judicial orders for another case through “the kitchen door,” as the judges of the case intend. He qualifies it as incredible that the court endorses that the Public Ministry can investigate the facts, even despite legal and constitutional restrictions. He adds that the judge of the Name82 case himself limited the use of the documents obtained to the specific case in which the order was issued, which he ordered, even, because Name02 requested it of him by the prosecutors, hence it is not possible for the evidence to be used in this process. The most serious thing is that the court accepts that the Public Ministry eliminated that restriction from the translation and justifies that action as a simple error, stating: “At folio 875 the Judges state that this responsibility would be the translator's and not the Prosecutor's Office, when in this specific case the translation was performed by the Prosecutor's Office, so the responsibility is attributable. Moreover, it is not that this suppression is alleged, as the Judges falsely state in the same Folio, since in fact the Judge's paragraph limiting the use of the information to the Name82 case was suppressed and this was known to the Prosecutor's Office, since Name02 requested it ...” (F. 172,752 front). He concludes by pointing out that if this court considers that the documentation derived from the lifting of bank secrecy in the Bahamas cannot be used in this case, by virtue of being limited to the case in which it was ordered, the evidence that supposedly demonstrated the deposits benefiting [Nombre01 018] should be suppressed, as it was obtained in violation of the rules indicated at the beginning of this section. **Third ground. Erroneous application of the regulations governing the lifting of bank secrecy in the Bahamas, in accordance with Articles 24 of the Political Constitution, 615 of the Commercial Code, the Organic Law of the Central Bank of Costa Rica, the Organic Law of the National Banking System and the referenced Law 7425.** In this section, the following is set forth: "… In Considering Clause II. H. 3 the majority Judges refer to this defense's opposition to the incorporation of Report 082-DEF because the documentation from BAC BAHAMAS BANK LIMITED was carried out based on letters rogatory not provided to the process and without lifting bank secrecy for that entity in the present case. As stated at Folios 877 and following of the judgment, evidence 413 found at Folio 6673 of Volume XV of the case file was accepted without the letters rogatory authorizing it for this case being made part of the record. The foregoing was the subject of grievance in the previous Ground, but now it is expanded in another ground since the majority Court considers that additionally, the documentation proving some alleged investment certificates in the name of [Nombre01 018] in the Bank domiciled in the Bahamas was delivered based on a correspondent contract between BAC San José and Bahamas Bank Limited. It is curious that after exhaustively defending the validity of using the documentation derived from the Name82 case to obtain this evidence in the Bahamas in a somewhat unsubstantial manner, it now simply opts to indicate that this information was not delivered with that support, but rather due to the alleged contract between both banking entities. Now it turns out, according to the Majority Court, that BAC San José is an offshore entity of BAC Bahamas, without this being demonstrated in the case file. Which of the two is the head of the group? Where is that blessed and ghostly contract between those entities, which not only does not appear, but no one refers to it or attaches it or even indicates where it is? But the Judges accept it without more, without seeing it, smelling it or feeling it; it is like a proof of faith, worthy of a better cause. It exists because the Bank's employees say it exists and that makes it real and valid. UNBELIEVABLE. It is not in the file, it was never provided, but it exists because the Judges say it exists. But worse yet, if it does not exist, in any case, with the order to lift bank secrecy directed to BAC San José in Costa Rica, it was sufficient, according to the Judges, as they state at Folio 8979. Let us look carefully. The Judges indicate that evidence 410 verifies that on June 1, 2004, the bank secrecy of [Nombre01 018] was lifted in the national banking system, including BAC San José. That is correct, but until now we know that BAC Bahamas Bank Limited formed part of the national banking system..., it is evident that this order was directed to the banks of Costa Rica, not to those of the Bahamas, due to the principle of territoriality that governs this matter. Article 1 of the Organic Law of the National Banking System, number 1644 of September 26, 1953, and its reforms, defines the national banking system and therein incorporates private commercial banks established and administered in accordance with Title VI of this law. Nothing is said in that title about offshore banks, since they are regulated in another law, the Organic Law of the Central Bank, which is Law 7558 of November 3, 1995. Name02 that when the Judge ordered the lifting of the bank secrecy of [Nombre01 018] in the banks of the national banking system, he did so within the legal definition of that figure and not from what occurs to the majority judges. When at Folio 879 the Judges try to justify that the Regulation for the Constitution, Transfer and Registration of Financial Groups allows correspondent contracts to be signed, this is a truth from Name83. But what they do not demonstrate is the most important thing, that such contract was signed beyond the Judges' good wishes. That those contracts are legal does not make them appear in reality or materialize them. Even more, according to the Judges, as [Nombre01 018] sent the transfer from here, that is proof that the transaction was verified in Costa Rica and that it is then not actually an international operation, which would require the letters rogatory to obtain the information. UNBELIEVABLE. That the resources were sent from here does not refer to the type of document acquired abroad, so the sending of those titles requires that bank secrecy be lifted in that country. If from the National Bank, for example, money is sent to Banco Santander in Venezuela, it does not mean that that entity is a branch or agency of the former; it is simply a banking operation between two independent entities and what Banco Santander does with the money sent is protected by bank secrecy. Note that BAC San José in Costa Rica is not the one that sends the information directly, but rather does so because the Bahamas Bank sends it to them, which evidences that it is obtained illegally and without respect for the existing constitutional procedure for this. Perhaps the clearest thing is, if it could be so, to ask what would be the reason why the Prosecutor's Office requested the lifting of bank secrecy via letters rogatory in the Bahamas if, according to the Judges, it sufficed to request the information from the local Bank…” But the height of the Judges' thesis is their particular interpretation of bank secrecy. The last paragraph of point 2.H. 3 refers at Folio 880 that the lifting of bank secrecy does not necessarily have to be done to the Bank where the account is held, but rather any entity can give information it possesses about that person, even if the account is not in that Bank. If one carefully reads numeral 615 of the Commercial Code, it is understood that the order for the lifting of bank secrecy is directed to the entity with which the investigated person has operations, accounts, deposits, investments or credits, so that the person responsible for such operations sends the information. It is not a matter of shooting into the air wildly, to patiently wait for any entity to tell gossip or unofficial reports about a certain person, since that would lead to prostituting the Judge's order which must meet requirements even of constitutional rank. Banks send the information that derives from operations with them, specifically with the Bank that receives the order, and it cannot be understood to include the remittance of whatever knowledge one might have of the investigated person…” (F. 172,752 to 172,754 front). Since the information was obtained without a competent judge's order, without any proof of a correspondent contract between the banks and without the lifting of bank secrecy in this case, said information becomes illegal and must be excluded as an evidentiary element in the present case.

**XXVIII.- The arguments are not acceptable.** In considering clause VIII.- of the resolution of the Third Chamber, it ruled regarding the topics indicated here, stating: **“VIII. Section III of the challenge filed by the Public Ministry. Grounds for the Cassation Appeal related to the declaration of illegality of the so-called ‘Evidence No. 543, 544 and 545’.** The disregard of procedural rules 142 second paragraph and 184 in relation to ordinal 408 subsection b) all of the Code of Criminal Procedure constitutes the **first ground of the third section of the filed appeal**, since in the prosecuting entity's criterion, the challenged judgment presents at least seven deficiencies in its intellectual reasoning, related to the confirmation of illegality of evidences 543, 544 and 545, namely: 1.- Supposedly, it does not contain the citation of the norms of the Constitution, of Law 7425 or of the Code of Criminal Procedure that expressly prohibit the use of legitimate documentary evidence within another criminal case. 2.- It argues, that although judgment 2012-2550 alludes, generically, to the right to informational self-determination of Article 24 of the Constitution and to the constitutional jurisprudence that develops it, it does not point out the part of that rule or the concrete precedents of the constitutional body that expressly prohibit using in one case documentary evidence legitimately obtained in another process, which prevents the prosecutorial body from verifying its existence and correspondence between its ratio decidendi and the appealed vote (Cf.f.175095 of volume XLII of the file). 3.- The judgment avoids ruling on the factual and legal aspects that the Public Ministry alleged in the oral appeal hearing, referring to the third ground of the appeal of Licentiate José Miguel Villalobos, on behalf of [Nombre01 018], and to the seventh ground of the appeal filed by the co-defendants [Nombre01 018], [Nombre01 028], [Nombre 041] and [Nombre01 001], specifically on that: a) [Nombre01 028] used products and services contracted in Costa Rica, both from the checking account of [Nombre 058] at Banco Cuscatlán in Costa Rica and from SAFI and Cuscatlán Valores, which also belong to the same Cuscatlán Group. b) According to the proven facts of the condemning judgment 167-2011, both the accused [Nombre01 028] and [Nombre01 018] used the services of Costa Rican private banking to prepare and receive money transfers and securities from [Nombre02 091], the first through account executive [Nombre 232] of Banco Cuscatlán and the second, through BAC San José and its branches, so that, these are private banks and subsidiaries that operate in Costa Rica and that form part of the National Banking System, according to Article 1 of the Organic Law of the National Banking System.

Furthermore, although the information requested from these banks requires a judicial order, in this particular case, a sui generis situation occurred, since apart from the fact that the acts were committed in Costa Rican territory, the Costa Rican Authorities did not order either the Cuscatlán Group or BAC, in Costa Rica, to send documents from Cuscatlán International Bank & Trust Limited or from Bahamas Bank Limited in that country; rather, it was both Financial Groups that voluntarily delivered the information generated within them, by reason of the commercial relationship with [Nombre01 058] and the co-defendant [Nombre02 018]. They allege that, unlike vote 2012-2550, the Trial Court, in conviction judgment 167-2011, did make a broad pronouncement on the matter, according to the section "H. Protests of the technical defense of [Nombre01 018]" (Cf. f. 867 of the first-instance judgment) 3. Opposition to the incorporation of Report No. 082-DEF because the documentation of the bank (sic) of Bahamas, on which it is based, was obtained based on a letter rogatory that was not provided in this proceeding" (Cf. f. 175097 of volume XLII of the case file). They reiterate that, based on the alleged lack of a pronouncement, the appealed Court reached an underived conclusion, by which it held that the Authorities of the aforementioned Financial Groups required an order directed to the Authorities of the Bahamas so that both the Cuscatlán Group and BAC would remit to the Costa Rican Authorities the information that they themselves generated in Costa Rica, by reason of the commercial relationship they had with both co-defendants. 4) Again, the complainants allege that judgment 2012-2550 fails to rule on the factual and legal aspects alleged by the Public Prosecutor's Office (Ministerio Público) in the oral appeal hearing held, only now with reference to: a) That the international transfers made by co-defendants [Nombre01 028] and [Nombre01 018], through bank accounts in Costa Rica, were not deposited in accounts in the Bahamas, but rather generated and stored here in Costa Rica at their request. b) That both the banking information of the Cuscatlán Group and BAC form part of the bank secrecy (secreto bancario) that those entities were required to observe. However, once said secrecy was lifted, by means of a judicial order issued by a competent Judge, they were also obligated to deliver that information, as indeed occurred. c) The information obtained by order of a Costa Rican Judge was not in the possession of Banks in the Bahamas but rather of the Cuscatlán financial group (Banco Cuscatlán, SAFI, Cuscatlán Valores) and BAC, domiciled in Costa Rica, meaning the issuance of an order to lift bank secrecy directed at Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary. Added to this is that, in the case of the certificates that compromised the defendant [Nombre01 018], these were physically located at BAC San José here in Costa Rica, because the transactions carried out were made from our country, under the correspondent contract (contrato de corresponsalía) figure with the Bank of the Bahamas (Cf. f. 175099-175100 of volume XLII of the case file). By virtue of the foregoing, despite this, they argue that: "… the Court (sic) of Appeals of Judgment (sic) failed to rule on these factual and legal aspects punctually alleged by the Prosecutor's Office and extensively developed by the trial court (sic), and without knowing from what reason, argument, or evidence, it departed from the alternative factual hypothesis that the transfers made to the banks of the Bahamas from Costa Rica were documented in information that could only be under the exclusive custody of the off-shore banks, as if the transfer operations had been carried out entirely outside the national territory and solely at the off-shore bank. With this, the Judgment Appeals Court managed to obtain an underived conclusion, which is that the authorities (sic) needed an order directed to the authorities (sic) of the Bahamas so that Grupo Cuscatlán and Grupo BAC would give the Costa Rican authorities (sic) information that they themselves had generated and was in their own possession here in Costa Rica, and which had also been generated on the occasion of the commercial relationship of Grupo Cuscatlán and Grupo BAC with [Nombre01 058] and the defendant [Nombre01 018] in accordance with national law and with the services contract that in our country both parties signed…" (Cf. f. 175101 of volume XLII of the case file, the highlighting belongs to the original). 5) According to the Public Prosecutor's Office, unlike judgment 167-2011, the appeal decision does not provide grounds for why the correspondent relationship between BAC San José and Bahamas Bank Limited was not demonstrated, nor does it explain the reason why it did not grant credibility to item of evidence 413, referring to the official communication of January 31, 2006, signed by the Head of Operational Risk Management of BAC San José (Cf. f. 6673 of volume XV of the case file), in which the existence of a correspondent contract is revealed in which BAC San José operates as the agent bank for BAC Bahamas Limited. Nor does it set forth why it was possible for co-defendants [Nombre01 028] and [Nombre01 018] to make transactions before the banks of the Bahamas without needing to travel to that Island if that correspondent contract did not exist. Insisting further that the Second Instance Judges express even less why they did not grant credibility to the note at folio 80 of volume I of the case file, dated September 27, 2004, in which officials of Banco Cuscatlán inform the Public Prosecutor's Office of the preparation of respective documents to send to them, among them, point e), "… operations under the direct correspondent contract that Cuscatlán Bank and Trust Co Ltd in Nassau maintains with Banco Cuscatlán de Costa Rica…" (Cf. f. 175102 of volume XLII of the case file. The supplement belongs to the original). 6) They emphasize that in no way does the Appeals Court provide grounds for how, in the case of co-defendants [Nombre01 028] and [Nombre01 018], the information from the Bahamas can legally be excluded from checking account services performed in Costa Rica, nor does it mention the specific legal rule by which the information that these Costa Rican banks handle regarding the movements of a particular account, generated by the activities of its account holder in accounts of other countries as a product of money transfers that the client sent or received from abroad through that same checking account in Costa Rica, can be excluded. 7) They add that the Second Instance Court did not examine the implications of the hypothetical exclusion of items of evidence 543, 544, and 545 in this particular case, nor the thesis of the majority vote of conviction judgment 167-2011, of the Criminal Court of the Treasury and Public Function (Tribunal Penal de Hacienda y la Función Pública), insofar as there are other documentary elements provided by BAC San José that allow determining the criminal liability of [Nombre01 018], such as "the joint relation of Annex No. 19 of report 082 DEF, relating to the movements of the bank account of [Nombre01 058], with the evidence expressly authorized by [Nombre01 028] AND [Nombre01 221] through the notes dated September 21 and 29, 2004, contained in turn in item of evidence No. 110, and likewise through folios 28 to 33 of item of evidence No. 132, coming from Banco Cuscatlán…" (Cf. f. 175103 of volume XLII of the case file, the capital letters belong to the original). As a grievance, they outline that the lack of reasoning in the judgment regarding the allegations of that entity, in relation to items of evidence 543, 544, and 545, caused an impairment to the defense of the social interests entrusted to that Body, since the legal reasons considered by the Ad quem court for rejecting the arguments presented remain unknown to date, for which reason they request, as a claim, that the challenged ruling be annulled, that the proceedings be returned to the competent Appeals Court, so that, with a new composition, it issues a new ruling that analyzes the points questioned in the present ground. In accordance with article 468 subsection b) of the Code of Criminal Procedure (Código Procesal Penal), at the same time, the Public Prosecutor's Office, in the second ground of the third subsection, claims erroneous application of substantive rules 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica) and non-observance of article 615 of the Code of Commerce (Código de Comercio), because the appealed ruling considered that the information provided by the Banks BAC San José and Grupo Cuscatlán in Costa Rica, regarding transfers made to financial entities domiciled in the Bahamas, exceeded the order to lift bank secrecy issued. According to the petitioners, the conclusion reached by judgment 2012-2550, when it states that: "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, so the procedure to obtain banking information from said institution must be done through official channels and, of course, with a judicial order to lift bank secrecy…" (Cf. f. 175105 of volume XLII of the case file, the highlighting is supplied), is incorrect, precisely because articles 141, 145, and 147 mentioned above and cited literally in the Public Prosecutor's Office's Appeal regulate the situation that occurred in the species, namely "Off-shore Banking", insisting that it is not true that, to obtain banking information from Bahamas Bank Limited, it was essential to carry out the corresponding procedure through the General Chancellery of the Republic, since the request made to the National Financial Group alone was sufficient. Also, that article 615 of the Code of Commerce was violated, because documents that, by business relations between the Bank and the client, were recorded in those checking accounts, were erroneously excluded from the lifting of bank secrecy ordered for National Banks. They affirm that the serious error of the appealed vote consisted of misinterpreting the meaning and scope of bank secrecy, as well as arbitrarily limiting the information covered by the lifting of bank secrecy imposed on related Financial Groups, establishing through the doctrine of the author Nombre84, in the book "Banking Contracts. Their Meaning in Latin America", Legis, 5th Edition, p.380, that bank secrecy comprises "… all the information that has been provided to it on the occasion of its relationship with the client…" (Cf. f. 172107 of volume XLII of the case file), specifically: "… • The private information it has received from its clients about their activities, businesses, plans, etc./ • Results of operations between bank and client, such as amount, destination, credit modalities, etc./ • The papers of its client that, by reason of business relations, have come into the hands of the bank, and which it could not show to third parties without the procedural formalities indicated by law…" (Cf. f. 172107 of volume XLII of the case file). Likewise, they point out that when applying that doctrine to the specific case, it is clear that the banking information that a financial group has in Costa Rica is not limited solely to that generated by the client's activities in our country, but also to accounts in other countries, as a product of money transfers made from the same account abroad, to repeat that the international transfers referred to in the ruling were made through bank accounts located in Costa Rica, so the information on those transactions to banks in the Bahamas, having been generated and stored in Costa Rica, at the request of the co-defendants themselves, formed part of the bank secrecy that the Financial Groups Cuscatlán and BAC San José were required to observe, but also made up the information that, once the corresponding bank secrecy was lifted, had to be delivered to the Costa Rican Judicial Authorities, as it concerned banking information, obtained in our country, by virtue of business relations between Bank-client, as indeed occurred. From the preceding argument, they express that an order to lift bank secrecy directed at Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary, and therefore, from that perspective, items of evidence 543, 544, and 545 are valid. As a grievance, they state that the non-application of the aforementioned rules caused illegitimate prejudice to the punitive claims of the Public Prosecutor's Office, because it prevented them from developing a theory of the case linked with remaining evidence, especially with the testimony of the collaborating witness [Nombre01 064]. As a claim, they request that the ground be granted, that the annulment of the ruling be ordered, and that the case be remanded for the issuance of a new decision in accordance with law. Finally, pursuant to numeral 468 subsection b) of the Code of Criminal Procedure, in the third claim of the third section of the cassation appeal (recurso de casación) of the Public Prosecutor's Office, erroneous application of article 24 of the Constitution is claimed, at the time of invalidating items of evidence 543, 544, and 545. For the Public Prosecutor's Office, the alleged defect is verifiable when the Appeals Court, based on an erroneous conception of said numeral, equates the use of the same evidence in two different criminal proceedings to a "second lifting of bank secrecy", without a judicial order (Cf. f. 175119 of volume XLII of the case file). Precisely, the prosecuting entity, in its challenge, explains two supposed errors incurred by the Appeals Court when resolving the issue of the previously cited evidence: 1.- The ruling presents confusion when interpreting article 24 of the Constitution, when it refers to "Courts of Justice" (plural) for "matters" (plural), since the rule does not specify that information, once obtained by means of a letter rogatory or lifting of bank secrecy, can only be used in the proceeding in which it was originally requested; rather, on the contrary, it establishes the Courts of Justice as the only ones competent to obtain that private information, when it uses the phrase "submitted to their knowledge", which means that it is exclusive use for criminal cases, where the request to the jurisdictional body is essential, since it excludes those powers or institutions other than the Courts of Justice from that obtaining (Cf. f. 175120 of volume XLII of the case file). 2.- For the claimants, the Second Instance Court disregards the procedural principles of publicity and community that govern evidentiary matters: bank secrecy in relation to the revealed, collected, systematized, and made known information to all parties can only be lifted once, precisely because it has lost its condition of secrecy (Cf. f. 175121 of volume XLII of the case file). Furthermore, the petitioners mention that items of evidence 543, 544, and 545 acquired that publicity when they were added, discussed, and incorporated into the debate in the CCSS-Fischel process, as part of the information sent from BAC Bahamas, in which copies of investment certificates referred to by co-defendant [Nombre01 018] to BAC Bahamas were delivered, which were received by BAC San José, with the purpose of being transferred to BAC Bahamas, along with an amount in dollars debited from that account, according to the correspondent contract, in which BAC San José operated as Agent of BAC Bahamas Bank Limited (Cf. f. 175122 of volume XLII of the case file). On the same topic, the appellants make a literal transcription of folios 16016 and 16017 of the first-instance judgment 167-2011, to support the reasoning set forth and affirm that the BAC Bahamas documentation delivered by Ms. [Nombre01 233], as Head of Operational Risk Management of BAC San José, is lawful, by virtue of the fact that it was generated and was physically located in Costa Rica. For the prosecuting entity, the lifting of bank secrecy on the BAC San José accounts, in addition to having been obtained in accordance with legal regulations, was public and common to all parties when it was incorporated into the CCSS-Fischel criminal process, so it is absurd to maintain that bank secrecy had to be lifted in both proceedings, since that secrecy is only one and is lifted only once. Likewise, the petitioners affirm that the judgment is silent in indicating the constitutional and legal norms (Law 7425 or Code of Criminal Procedure) that expressly prevent the use of evidence legitimately obtained within one proceeding in another, so for the prosecutorial representatives, that evidence must be studied from the doctrinal concept of "transferred evidence" ("prueba trasladada") (Cf. f. 175124-175125 of volume XLII), which is based on the unity of jurisdiction, not requiring identity of parties, but rather the prior existence of adversarial proceedings and cognizance of the evidence in the other process, where its full efficacy has been determined, according to the principle of freedom of evidence (principio de libertad probatoria), contained in articles 182 and 234 of the Code of Criminal Procedure and vote 2001-764 of the Third Chamber (Sala Tercera), from which they quote an excerpt (Cf. f. 175125-175126 of volume XLII of the case file). In this way, for the prosecutorial representatives, not only did an evident connection exist between case file numbers Nombre82 and Nombre64 091, but the information obtained from BAC Bahamas Bank Limited in the Bahamas, on the occasion of the connection with the BAC San José account in Costa Rica, in the CCSS-Nombre01 case, was made known to all co-defendants, including [Nombre01 018], who had the opportunity, together with his technical defense, to refute it, its incorporation being valid in that other process. Therefore, they outline as a grievance an illegitimate prejudice to the punitive claims of the Public Prosecutor's Office, a body that failed to prove its theory of the case due to the exclusion of the mentioned evidentiary elements, the prosecutorial appeal requesting both the annulment of the appealed ruling regarding the declaration of illegality of items of evidence 543, 544, and 545, and the issuance of a new ruling that resolves the raised issue. For reasons of procedural economy and because they refer to interrelated issues, the first, second, and third grounds of the Third Section of the prosecutorial appeal are resolved jointly and are granted: Due to the nature of the claims, the following considerations must be made: i) Regarding items of evidence 543, 544, and 545 in this particular case: As the Criminal Court of the Public Treasury, of the Second Judicial Circuit of San José, did in its time in judgment 167-2011, before ruling on the lawfulness or unlawfulness of the aforementioned items of evidence 543, 544, and 545, it is necessary to dimension what pertains to that material. According to the accusatory document, which appears at folios 8020 to 8364 of volume XIX of the case file, the evidentiary elements 543, 544, and 545 were described by the Public Prosecutor's Office in its petition for "FORMAL ACCUSATION AND REQUEST FOR OPENING OF TRIAL" (Cf. f. 8020-8364 of volume XIX of the case file. The supplement belongs to the original), within the section called "Judicial Letters Rogatory", as: "…543) Certified Copy of the request to the Criminal Court by the prosecutorial body for the issuance of a Letter Rogatory addressed to the Republic of the Bahamas, dated October 5, 2004 (...) 544) Certified copy of the Letter Rogatory formulated by the Criminal Court of Costa Rica to the authorities of the Bahamas (…) 545) Certified copy of the Response to the letter rogatory to the Bahamas by the Consul of Nassau (sic), Bahamas, and a copy of the translation into the English language of the Letter Rogatory issued by the Criminal Judge of Costa Rica to the authorities of the Bahamas…" (Cf. f. 8324 of volume XIX of the case file), since with item of evidence 543, the prosecuting entity intended to prove the "…requirement of the Public Prosecutor's Office to access banking information related to [Nombre01 018], [Nombre01 215] among others for the 'off shore' of Banco de San José in Bahamas (…)…" (Cf. f. 8324 of volume XIX of the case file); with item 544, both the legalization procedure in obtaining that evidence and "…the banking records of the operations made by [Nombre01 018] in '….the entry of money coming from [Nombre01 058] to the account of [Nombre01 215] and the translation into the English language of the request made…' " (Cf. f. 8324 of volume XIX of the case file). Hence, as an important piece of information, the unnumbered official communication, of October five, two thousand four, later called item of evidence 544, refers to the letter rogatory sent by Licentiate Adrián Molina Elizondo, in his capacity as Criminal Judge of the Treasury and Public Function of the Second Circuit, through the Secretariat of the Supreme Court of Justice and the Ministry of Foreign Affairs to the Government of the Bahamas, which was carried out on the occasion of investigation 04-0005356-042-PE, followed against [Nombre01 018], [Nombre01 158], [Nombre01 225], [Nombre 234], [Nombre02 235], and [Nombre02 236], for the crimes of aggravated corruption, illicit enrichment, and others, to the detriment of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), in the case called Caja-Fischel, as is evident from folio 6629 and following of volume XV of the case file. In that request, the factual picture that motivated the action was also set forth, indicating that it was an investigation to prove facts concerning the "Finlandia Project" (facts 1 and 57) and the "Purchase of House in [...]" (facts 58 to 59 given that the document offered by the prosecuting entity was determined to be incomplete) (Cf. f. 00015313-00015314 of volume XXXI of the case file), such that, despite the fact that other possible implicated persons were mentioned in said petition, it was aimed at essentially proving the actions of the defendants [Nombre01 018], [Nombre01 158], and [Nombre01 225], given that the information for accounts [Valor 044], [Valor 045], and [Valor 046] of Banco de San José in the Bahamas was required, specifically, the names of the owners of the indicated accounts, in addition to the "…delivery of ALL original documentation since the same was opened…" (Cf. f. 6550 of volume XV of the case file. The supplement is ours), which must include: "…for each account, but not be limited to: • Signature cards/ • Documents related to the opening of the accounts/ • General ledger cards for accounts/ • Periodic account statements/ • Records of deposits and withdrawals/ • Instructions related to the receipt or transfer of any funds to or from the account whether by fax, electronic mail, or any other means of communication/ • Correspondence to, from, or in favor of the account holder(s)/ • Memoranda related to the account/ • Cashier's checks and cashier's check purchase documentation/ • Balances/ • Closing dates/ • Inactivity/ • Any other account, operation, or financial activity documentation…" (Cf. f. 6550 of volume XV of the case file. The supplement is ours), in such a way that the content of item of evidence 545 corresponds to the records and documents that the bank accounts yielded. Once all those evidentiary elements were provided by the prosecutorial body in its request for opening of trial, the technical defenses discussed their lawfulness, insofar as the fragmentation has been questioned, due to the incomplete nature of the document incorporated as item of evidence 543, as well as the absence of the corresponding judicial order to access sensitive information such as that relating to bank accounts abroad (Cf. f. 00015310 of volume XXXI of the case file). However, judgment 167-2011, delivered in the first instance, through the majority vote, on the occasion of the defensive claim of attorney Villalobos, established in the section "…1. Bank evidence coming from Banco de San José in the Bahamas requested in the 'Caja-Fischel' case and provided as evidentiary material in this proceeding (items of evidence No. 543, No. 544, and No. 545)" (Cf. f. 15310 of volume XXXI of the case file.

The replacement belongs to the original), the legality of both those evidentiary sources and their subsequent incorporation into the present proceeding, when it determined that said material, despite originating from case file 04-5356-042-PE, against [Name01 238] and others,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> called "Caja-Fischel" and having been added to the present case file 04-6835-647-PE, could be transferred, as there is no express legal prohibition in this regard and it determined that: "...at the time the Prosecutor's Office made the referenced request to the criminal judge of the preparatory stage for them to ask the competent authorities of the Bahamas, the evidence of interest did not have the necessary clarity to discern that these facts were unrelated to those it was then investigating in the context of the 'Caja-Fishel' case (Cf. f.00015312 of Volume XXXI of the case file). Likewise, that although the copy of at least ten folios of the last part of the original document, delivered by the Costa Rican Prosecutor's Office, had been omitted, the truth was that from those photocopies it was not possible to infer bad faith on the part of the prosecutorial representatives, given that the authorization of Judge Adrián Molina Elizondo to gather that evidence in the Bahamas was derivable from them without any problem (Cf. f.00015313 of Volume XXXI of the case file). However, the Appeals Court of Judgment, regarding the defense challenges, determined that BAC San José in the Bahamas did not constitute an extension of its counterpart in Costa Rica, for which reason any banking information originating from that entity should have been processed through the corresponding legal channels, that is, through the issuance of the respective judicial order, absent in this proceeding. Furthermore, according to the Ad quem, its use was restricted to case 04-0005356-042-PE, so its transfer to this new proceeding was not appropriate, besides the fact that the correspondent relationship between BAC San José and BAC Bahamas Limited had not been demonstrated (Cf. f.174525-174526 of Volume XLI of the case file). For these latter reasons, the Public Prosecutor's Office once again disputes the lawfulness of that evidence, only now based on the guidelines and restrictions contemplated in Article 468 subsection b) of the Criminal Procedure Code. Having said that, based on the foregoing account, it is necessary to make some observations of interest, since from the reading of the section called: "...</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">B.</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">Spurious Evidence. In the second ground of the appeal filed by [Name01 018], the erroneous application of the rules pertaining to the lifting of bank secrecy is raised, such that the banking evidence used to demonstrate the deposits in his favor is unlawful and unusable for conviction..." </span><span style="font-family:Arial; font-style:italic">(Cf. f.174525 of Volume XLI of the case file) contained in the appealed decision 2550-2012, this Chamber of Cassation notes the existence of errors of erroneous application of constitutional and legal norms, an infringement of the principle of derivation, and an absence of intellectual reasoning regarding evidence 110, as alleged by the prosecutorial body, based on the following considerations: i) Erroneous application of Articles 24 of the Political Constitution; 1, 28, and 29 of Law 7425, of August 9, 1994, Law on the Recording, Seizure, and Examination of Private Documents and the Interception of Communications, and 615 of the Commercial Code. In accordance with the reasoning set forth in the appealed decision, it is possible to verify that the Ad quem required, as a prerequisite to decree evidence 543, 544, and 545 as lawful, a new judicial order in the present proceeding, by maintaining that the information from Bac Bahamas Bank Limited, aimed at lifting the bank secrecy of the accounts of the accused [Name01 018], should have been gathered by means of a judicial resolution that Name02 would allow it, the transfer of those evidentiary elements from one proceeding to another not being possible, when the truth is that the aforementioned articles contain no express prohibition against their use in subsequent cases. Indeed, before continuing with the study of the evidence mentioned above, it is necessary to reiterate that Article 24 of our Political Constitution enshrines the fundamental right to privacy, freedom, and the secrecy of communications, for which reason the article is transcribed again, in order to establish that said</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> norm states that: "The right to privacy, freedom, and the secrecy of communications is guaranteed./ </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">. However, the law, the approval and reform of which 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, recording, or examination of private documents, when it is absolutely indispensable for clarifying 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 specify the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions protected under this norm must be reasoned and may be executed immediately. Their application and control shall be a non-delegable responsibility of the judicial authority./ The law shall establish the cases in which the competent officials of the Ministry of Finance and the Office of the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to oversee the correct use of public funds./ A special law, approved by two-thirds of the total number of Deputies, shall determine which other bodies of the Public Administration may review the documents indicated by that law in relation to the fulfillment of their regulatory and supervisory powers to achieve public purposes. It shall also indicate in which cases such review is appropriate. / Correspondence that has been stolen and information obtained as a result of the illegal interception of any communication shall not produce legal effects. / (As amended by Article 1 of Law No. 7607 of May 29, 1996. The emphasis is ours). From the cited Constitutional norm, it follows that the fundamental right to privacy enshrined in that article is intimately related to the sphere of protection of the private life of persons within a Democratic State, since it is comprised of: "...</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">those phenomena, behaviors, data, and situations of a person that are normally withdrawn from the knowledge of strangers</span><span style="font-family:Arial; font-style:italic">. This sphere of privacy is justified because in a democratic system every person has the right to maintain reserve over certain activities, data, documents, or opinions of theirs, since it is impossible or very difficult to coexist and fully develop the goals a person sets for themselves, without enjoying a framework of privacy, protected from interference by the State or other persons (see Article 11.2.3 of the American Convention on Human Rights or Pact of San José)..." (</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Administrative Law Court, Section VI,</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">Decision 2010-02958, of eight o'clock, on August tenth, two thousand ten. The highlighting is ours). However, as defined by Decision 2010-02958, of the Administrative Law Court, Section VI, cited above, with emphasis on Decision 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five, of the Constitutional Chamber, within the right to privacy contemplated in Article 24 of the Political Constitution, the inviolability of private data and documents must be considered a manifestation of that guarantee, insofar as it is understood as a safeguard so that private parties cannot access them and, at the same time, as a prohibition so that public or private entities that handle that information cannot supply it to third parties, given that: "...Article 24 of the Political Constitution guarantees all persons a sphere of intangible privacy from the rest of the subjects of law, in such a way that those intimate, sensitive, or nominative data that a public entity or body has collected, processed, and stored, being contained in its archives, records, and physical or automated files, cannot be accessed by any person because that would entail an unconstitutional external intrusion or interference..." (</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Constitutional Chamber of the Supreme Court of Justice, </span><span style="font-family:Arial; font-style:italic">Decision 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five. In a similar vein, Decision 2003-00136, of fifteen hours twenty-two minutes, on January fifteenth, two thousand three, cited in</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> Administrative Law Court, Section VI,</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">judgments 2010-02958, of eight o'clock, on August tenth, two thousand ten, and 838-2009, of eight hours thirty minutes, on May sixth, two thousand nine). Despite the indicated restrictions, the inviolability of private data and documents is also not unrestricted, since the Political Constitution itself establishes limitations or exceptions, when it refers to the law, Law 7425 being enacted to establish specific regulations in the case of interceptions of oral or written communications and the right to privacy in general, while specifically, for bank secrecy, to Article 615 of the Commercial Code. In this regard, regarding the notion of bank secrecy, as an essential topic for the resolution of the grounds raised by the prosecutorial body, it must be held that the Constitutional Chamber itself has understood it as "...a legal manifestation of the protected juridical asset through the provisions of Article 24 of the Political Constitution (fundamental right to privacy). In that sense, bank secrecy is '...the duty imposed on any financial intermediation entity not to reveal the information and data it possesses about its clients through any banking operation or banking contract it has entered into with them, especially in the case of current accounts, since Article 615 of the Commercial Code expressly enshrines it for that scenario...'" (</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Constitutional Chamber of the Supreme Court of Justice</span><span style="font-family:Arial; font-style:italic">, Decision 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five, cited by</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> Administrative Law Court, Section VI,</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">Decision 2010-02958, of eight o'clock, on August tenth, two thousand ten. In the same sense,</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> Constitutional Chamber of the Supreme Court of Justice, </span><span style="font-family:Arial; font-style:italic">Decisions 2014-005599, of fourteen thirty, April thirtieth, two thousand fourteen; 2004-14210, of fifteen hours four minutes, on December fourteenth, two thousand four; and 2003-00136, of fifteen hours twenty-two minutes, on January fifteenth, two thousand three. In a similar position, Nombre85 (Mario), Secreto Bancario, in Nombre86 (Nombre87) et al., </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Legitimación de Activos Ilícitos</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Buenos Aires, Ad-Hoc, 2010, p.525. A notion that, without a doubt, is closely linked to Law 7425, to which Article 24 refers, and especially to Article One, which imposes as the exclusive competence of the Courts of Justice the power to "authorize the recording, seizure, or examination of any private document, when it is absolutely indispensable for clarifying matters submitted to their cognizance," it being the case that exclusively,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Article 615 of the Commercial Code covers the issue of bank secrecy in bank account contracts, stating that: "...</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Bank current accounts are inviolable and banks may only supply information about them upon request or with the written authorization of the owner, or by order of competent judicial authority</span><span style="font-family:Arial; font-style:italic">. The intervention that, in fulfillment of its functions determined by law, is carried out by the Superintendencia General de Entidades Financieras, or the Dirección General de Tributación authorized for that purpose, is excepted." (As amended by Law 9068, Law for the fulfillment of the Fiscal Transparency standard, of September 10, 2012. The emphasis is ours). From the regulations present in both norms, it is manifest that in our legal system, bank secrecy constitutes a derivation of the fundamental right to privacy, which presents as a fundamental requirement for being infringed, the issuance of a resolution by a competent jurisdictional entity. However, by its nature, it can also be waived through the free and voluntary authorization of the account holder. Nevertheless, in either of the two options, its use is not restricted to the criminal case in which the lifting of the bank documents was carried out. It must be recognized that the only restriction is with respect to written or telephone communications, which is expressly contained in Article 28 of Law 7425, Law on the Recording, Seizure, and Examination of Private Documents and the Interception of Communications, which specifically prohibits the transfer of evidence related to the interception of written or telephone communications, when it states: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">"Article 28. Restricted use of information</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. The results of the </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">interception of oral and written communications may not be used for any purpose other than that which motivated the measure</span><span style="font-family:Arial; font-style:italic">" (The underlining is ours), since it must be remembered that in the case of interceptions of oral, written, telephone, or any other type of communications, Article Nine of the same Law 7425, when dealing with the violation of a fundamental right, by the principle of proportionality, specifies in a closed list the crimes for which this restriction is permitted. On the subject, note that both Constitutional jurisprudence and that of this Third Chamber have considered the use of results obtained through written or oral interceptions, ordered in one criminal proceeding, that are used in another of the same subject matter, or, for example, within</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> sanctioning or disciplinary proceedings, to be a practice violating the right to privacy (See in the same sense, </span><span style="font-family:Arial; font-weight:bold; font-style:italic">Constitutional Chamber of the Supreme Court of Justice, </span><span style="font-family:Arial; font-style:italic">Decision 2014-004035, of eleven o'clock, on March twenty-first, two thousand fourteen,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> in which reference is also made to decisions 1571-96, of twelve hours thirty-six minutes, on March twenty-ninth, nineteen ninety-six; 06378-1995, of sixteen hours, on November twenty-second, nineteen ninety-five; and 2007-003890, of fifteen hours fifty-one minutes, on March twentieth, two thousand seven; 9421-02, of sixteen hours eight minutes, on September twenty-sixth, two thousand two; 1991-678, of fourteen hours sixteen minutes, on March twenty-seventh, nineteen ninety-one; 1994-1026, of ten hours fifty-four minutes, on February eighteenth, nineteen ninety-four; 2268-03, of sixteen hours forty-seven minutes, on March eighteenth, two thousand three. In the same sense </span><span style="font-family:Arial; font-weight:bold; font-style:italic">Third Chamber of the Supreme Court of Justice, </span><span style="font-family:Arial; font-style:italic">Decision 2013-00073, of nine hours and seven minutes, on February twelfth, two thousand thirteen). However, the restriction contained in Article 28 of Law 7425 could not be applied to private banking information derived from the lifting of bank secrecy, since this is only referred to the interception of oral and written communications. In contrast, Article 22 of the same Law contains a duty of confidentiality for those in charge of intercepting those communications, be they police officers, auxiliary agents of the administration</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> of justice, or judges, when it expressly refers, within the title of "</span><span style="font-family:Arial; font-weight:bold; font-style:italic">RESPONSIBILITIES, PROHIBITIONS, AND SANCTIONS</span><span style="font-family:Arial; font-style:italic">" that: "...Officials and employees participating in the interception of communications, the recording, seizure, or examination of documents, or those who have the power to request these measures, are prohibited from the following: 1. Using the results of the interception for purposes other than those that motivated it...". The foregoing demonstrates that these are two dissimilar situations, since there is no norm within Law 7425 that restricts the transfer of evidence derived from banking information obtained in another proceeding, which leads to the conclusion that, in the absence of an express prohibition, said evidence, in compliance with the requirements of transferred evidence demanded by the doctrine, can be used in subsequent proceedings, albeit of a criminal nature. On the subject, based on the principles of freedom and breadth of evidence, unity of jurisdiction, and procedural economy, the majority position of criminal procedural doctrine has admitted, regarding evidentiary activity, the concept of "transferred evidence" ("prueba trasladada"), "borrowed evidence," or "transfer of evidence" as that evidence which has been produced for a specific proceeding and is used in another. Thus, for the author Nombre88, transferred evidence is nothing more than that which "...is practiced or admitted in another proceeding and is presented in an authentic copy or by releasing the original, if the law permits it" (Nombre88 (Nombre89), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-style:italic; text-decoration:underline"> General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Volume I, Buenos Aires, 5th Edition, Publisher Nombre90. de Zavalía, 1981, p.367), whereas for Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) et al., </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.367, it concerns "that which is produced in one proceeding to generate effects in it, and is subsequently transported documentarily to another, generating effects in a different proceeding." For both authors, the result, as a general rule, for applying the transfer of evidence, is that if there is no regulation to the contrary that Name02 prohibits it, any evidence can be useful in one or several proceedings, hence, as essential requirements for the admissibility of said evidence, the same author Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) et al., </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.371-377, has described at least five prerequisites for its validity: 1. Participation of the counterparty in the production of the evidence: that is, that in obtaining the transferred evidence, the principles of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> contradiction and defense must have been guaranteed (In the same sense, Nombre88 (Nombre89), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-style:italic; text-decoration:underline"> General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Volume I, Buenos Aires, 5th Edition, Publisher Nombre90. de Zavalía, 1981, p.367 and 373). 2. Identity of parties: for the majority doctrine, according to Nombre93, the borrowed evidence need not have the characteristic of identity of parties in both proceedings, but rather that the affected person(s) had the possibility of contradiction in the prior proceeding. 3. Collection of evidence in a jurisdictional proceeding: due to the principle of jurisdictional unity, for the borrowed evidence to be valid, it is essential that its collection has occurred in connection with a jurisdictional proceeding (In the same sense, Nombre88 (Nombre89), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Volume I, Buenos Aires, 5th Edition, Publisher Nombre90. de Zavalía, 1981, p.373). 4. Identity of facts: due to the principle of ne bis in idem, absolute identity of the facts of both proceedings would not be necessary, but at least a simple relationship. 5. Compliance with legal formalities: according to Nombre93, for the transfer of evidence in a second proceeding to be valid and effective, the regularity of the evidence obtained in the original proceeding is indispensable. Thus, regarding the last of the established requirements, it is clear that if the procedural regulation in the legal system restricts evidentiary activity solely to the specific case, the transfer of evidence from one case file to another would invalidate that evidence for the second proceeding, even if the origin of the first were valid. In this regard, in the present proceeding, the principles of contradiction and defense have been guaranteed, since the accused and their defense counsel have been able to object to that evidence, to the point that the Appeals Court of Criminal Judgment declared it unlawful. Likewise, evidence 543, 544, and 545 was collected within a jurisdictional proceeding, where a relationship existed between the facts of the first proceeding and those that the Public Prosecutor's Office investigated in this other case, with the result that compliance with legal formalities was ultimately presented, Name02 such as the non-existence of a legal or supra-legal norm that prevented the transfer of the mentioned evidence. (On the requirements of transferred evidence, see Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Nombre93 (Nombre96), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) et al., </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.367, cited in Section VI of this judgment). Precisely, note that the letter rogatory sent by Judge Molina Elizondo to the Government of the Bahamas was based on Articles 62, 65, 154, 180, and 181 of the Criminal Procedure Code, Article 41 of the Costa Rican Political Constitution, and Articles 5 and 6 of the Vienna Convention, such that, regarding the requirements demanded by our legislation concerning the letter rogatory, the resolution fully complied, and the challenges aimed at determining its illegality, based on its transfer from case file 04-005356-042-PE or Caja-Fischel, to the present case, are inadmissible, since Law 7425, as analyzed supra, contains no restrictions for this type of information, because the only reference to the prohibition of transferring evidence is contained in Article 28 of Law 7425, but it refers to other scenarios, namely the interceptions of oral or written communications. Name02 things, this Chamber finding no defect under the indicated regulations that conflicts with the requirements of transferred evidence, in application of the principle of freedom of evidence contained in Article 182 of the Criminal Procedure Code, the lawfulness of this evidence must be declared. Furthermore, note that when the Appeals Court resolved the defense challenges, it was also remiss in determining the procedural importance of said body of evidence, by omitting in the construction of its reasoning to examine whether it was the product of an independent source or whether, on the contrary, it was evidence derived from another that was transcendental to the proceeding. In this sense, given that the Appeals Court declared null evidence that was not so, due to the erroneous application of constitutional and legal norms, judgment 2550-2012 lacks sufficient reasoning and Name02 must be declared. Despite this, in strict adherence to the legal restrictions incorporated with the entry into force of Law 8837 on the powers of this Third Chamber regarding evidentiary assessment, it will be up to the Appeals Court of Judgment, with a new composition, to analyze, in accordance with the rules of sound criticism, evidence 543, 544, and 545, based on its comprehensive assessment in consonance with the evidentiary elements incorporated into the debate.

• ii)The second-instance judgment presents an infringement of the principle of derivation, which prevents its effectiveness: According to the grounds contained in folios 174525 to 174526 of volume XLI of the case file, it is clear that the Court of Appeal, in judgment 2012-2550, incurs an infringement of the rules of sound criticism, specifically the principle of derivation, when it categorically affirms that items of evidence 543, 544, and 545 are illicit and unusable within this proceeding, because: “…<span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">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 case</span><span style="font-family:Arial; font-style:italic"> and it is also not known whether the mentioned banks can exchange available information on their accounts by mere internal administrative request for the normal course of their financial activities (…) </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Thus, the evidence obtained without any correspondent contract between the banks, and without the lifting of bank secrecy makes the information obtained illicit and unusable as evidence in the criminal proceeding under examination</span><span style="font-family:Arial; font-style:italic">. The effects already considered, of the appeal filed by the defendants [Name02 001], [Name01 028], [Name01 041], and [Name01 018], also apply…” (Cf. f.174526 of volume XLI of the case file. The emphasis is ours), while from item of evidence 413, linked to the official letter of January thirty-first, two thousand six, signed by the Head of Operational Risk Management of BAC San José, [Name01 233]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">(Cf. f.6673 of volume XV of the case file), a different conclusion can be drawn, since the aforementioned document certifies that: “…</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">In accordance with our correspondent contract, in which BAC San José operates as agent bank for BAC Bahamas Bank Limited and duly authorized by the legal advisory and the Administration of said institution, we proceed to make the following clarifications</span><span style="font-family:Arial; font-style:italic"> related to the information delivered by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, document with reference CLE-GEN-00293, thereby responding to your official letter No. 40-FADECT-06-MM of January 19, 2006./ As part of the information submitted by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, photocopies of the following three investment certificates with their respective coupons were delivered (…) These certificates were received by BAC San José(sic) on January 15, 2002, to transfer to BAC Bahamas together with an amount of $8,165.23 debited from account No. [Value 047] in the name of [Name01 018]. With this money plus the principal and interest of certificate 720016762 in the name of [Name01 018] totaling $161,725, BAC Bahamas constituted on January 15, 2002, certificate No. 720096897 in the name of [Name01 018] for $200,000…” (Cf. f.6673 of volume XV of the case file). In this way, it is evident that from said evidence it is possible to derive a commercial relationship between BAC San José and BAC Bahamas Bank Limited, which determines, without a doubt, the existence of the mentioned correspondent relationship between the banking entities indicated above and that the conclusion of the Court of Appeal did not integrally consider evidence of transcendental value, such as the content of item of evidence 413, taking the aforementioned affirmation lightly. iii) Nor did the Ad quem assess item of evidence 110, which has a special relationship with the evidentiary material 543, 544, and 545. Within the concept of bank secrecy, upheld by the doctrine, “…there are limits (…) of a merely private nature or subjective limits, such as the express consent of the client, interbank information, or the legitimate interest of the Bank in the lifting of bank secrecy, the latter normally referring to the case of conflict with the client…” (GUILLÉN FERRER), María José, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Bank Secrecy and Its Legal Limits (Public Law Limits</span><span style="font-family:Arial; font-style:italic">), Tirant lo Blanch, 1997, p.115. Regarding the express consent of the client, it has also been established that “…the basis of the present limit finds its reason for being in the fact that (sic) the very holder of the secret, the principal interested party in (sic) maintaining confidentiality, consents to the revelation of the secret in itself considered as the will to conceal. The express consent of the client to the lifting of bank secrecy constitutes a limit unanimously admitted by the doctrine, which must be related to the waivable nature of the right to privacy in general that every person, both natural and legal, has. Consent in these cases does not imply the absolute abdication of this right or an absolute and abstract renunciation thereof, but rather it is more a partial and voluntary divestiture of the faculties conferred by the right to privacy…” (GUILLÉN FERRER) María José, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Bank Secrecy and Its Legal Limits (Public Law Limits</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">), Tirant lo Blanch, 1997, p.115-116. This subjective limit of the right to bank secrecy, unlike other legal systems, in our country, is legally recognized in articles 615 of the Commercial Code and 29 of Law 7425, since the lifting of bank secrecy can derive both from an express judicial resolution and from the respective authorization of its holder. However, in the specific case, those items of evidence were never examined in relation to the authorizations issued by the accused [Name01 028] and [Name01 221] who, freely and voluntarily, empowered the Cuscatlán Financial Group to provide any information and documentation requested by the Judicial Authorities of Costa Rica, referring to their bank accounts, and less was it examined that those Banks, in light of articles 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica, present the particularity of forming a financial group, headquartered in Costa Rica, where the information of those accounts was stored in our country, which allowed establishing that all the movements in the accounts were carried out from Costa Rica. On this matter, it must be recognized that numeral 29 of Law 7425 establishes that: “</span><span style="font-family:Arial; font-weight:bold; font-style:italic">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</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">This consent shall be revocable at any time</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">” (The emphasis is ours), which implies that this right to privacy is available to the account holder, in such a way that the subject can renounce it, as long as they do so freely and spontaneously, since bank secrecy, belonging to the natural person, is available individually or through a legal entity. (See in the same sense, [Name85] (Mario), Bank Secrecy, in [Name86] ([Name87]) and others, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Legitimization of Illicit Assets</span><span style="font-family:Arial; font-style:italic">, Buenos Aires, Ad-Hoc, 2010, p.525.), so that if the co-accused [Name01 028] and his wife decided, through respective official letters, to disclose their accounts to third parties, given the criminal proceeding being pursued against them, this Chamber finds no illegality whatsoever, it being, on the contrary, considered that said evidence should have been analyzed by the competent Court in light of items of evidence 543, 544, and 545, which is notably absent in the case at bar. Ultimately, in accordance with articles 467, 468, 469, and 471 of the Criminal Procedure Code, the first, second, and third grounds of the Third Section of the Cassation Appeal of the Public Prosecutor's Office are declared with merit, therefore, on these grounds, the acquittal judgment decreed in favor of [Name01 001], [Name 028], [Name 041], [Name 018], [Name 022], [Name 033], and [Name02 006] is annulled…”. As extracted from the text transcribed above, the Third Chamber concluded that items of evidence 543, 544, and 545 were licit, just as the trial court had indicated. Specifically, the cassation body considered that, as it was not proscribed by the legal system, there was no impediment to transferring the information related to BAC Bahamas Bank Limited, obtained in proceeding 04-005356-042-PE, known as Caja-Fischel, to the present case. Likewise, it concluded, based on item of evidence No. 413, that there was a correspondent contract by virtue of which BAC San José operated as the agent bank of the former. Thus, by upholding the claims made by the requesting body, the Chamber settled the questions raised by the defender of [Name01 018] and by the accused himself, since by reason of the first (the legitimacy of the evidence transfer carried out) it is ruled out that this information should have been weighed only in the proceeding c.c. Caja-Fischel, or that it was necessary to fulfill </span><span style="font-family:Arial; font-style:italic">in this matter</span><span style="font-family:Arial"> the requirements that </span><span style="font-family:Arial; font-style:italic">had already been satisfied in the original proceeding</span><span style="font-family:Arial"> (e.g., the judicial resolution that authorized the lifting of bank secrecy). Also because of the foregoing, it loses interest that when translating the letter rogatory from English to Spanish, a piece of data contained in the one sent to the Bahamas was omitted, namely, the indication that the evidence would be used solely to clarify the facts investigated in the case c.c. Caja-Name01 (cf. folios 6,628 and 6,6524 of volume XV). This to the extent that such affirmation, which in the letter rogatory is inserted in the section intended to explain the relevance of the requested evidence (f. 6,628 front, second paragraph), does not change the fact that within Law No. 7425 there is no rule whatsoever that prohibits transferring bank information obtained in one procedure to another, the only scenario in which, </span><span style="font-family:Arial; font-style:italic">according to the Third Chamber</span><span style="font-family:Arial">, the transferred evidence would be illicit. Similarly, by reason of the second (the existence of the correspondent contract between BAC San José and Bahamas Bank Limited that, for the cassation body, reasonably derives from the evidence, particularly from item No. 413), the local bank had no impediment whatsoever to deliver the questioned information. Finally, the Third Chamber, when ordering the remand, ordered this office to analyze items of evidence 543, 544, and 545, </span><span style="font-family:Arial; font-style:italic">“… from their integral assessment in consonance with the evidentiary elements incorporated into the debate.”</span><span style="font-family:Arial"> Regarding this, two considerations must be made. The first is that the appellant is not questioning the examination that the trial court made of such evidence, or the conclusions it derived from them, but rather their legitimacy, understanding that they were obtained and incorporated into the proceeding irregularly, a point that, as already explained, was settled in cassation, concluding that the evidence is licit. The second is that indeed, as the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> indicated at folio 15,323 front of volume XXXI and the Third Chamber suggests in its resolution, specifically at folios 176,472 front to 176,473 back, the cited evidence also does not have the essentiality that is claimed, since there are other items of evidence that allow establishing the transit of the funds, namely, the information gathered in relation to the transactions carried out by [Name01 058] through the different entities that make up the Cuscatlán Financial Group, of special importance, item of evidence No. 132, folios 28 to 33, which this chamber has seen and where </span><span style="font-family:Arial; text-decoration:underline">the three original investment certificates and their respective coupons appear, all with the received stamps of BAC San José and the endorsement of BSJ International Bank</span><span style="font-family:Arial">. Name02 the matters, the grounds must be rejected, not only because items of evidence 543, 544, and 545 have been considered licit by the Third Chamber, which, in its core, confirmed what was stated by the trial court, but also because there are other items of evidence that, in the same way, allow associating [Name01 018] with the admission of the certificates in question. Based on the foregoing, the objection is declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXIX.-</span><span style="font-family:Arial"> Given the existing relationship, the fourth to seventh, eleventh, and twelfth grounds of the appeals will be resolved jointly. </span><span style="font-family:Arial; font-weight:bold">Fourth ground. Absence of the detailed determination of the fact the court deems proven, in violation of article 369 subsection b) of the CPP.</span><span style="font-family:Arial"> On this point, it is claimed: </span><span style="font-family:Arial; font-style:italic">“… Considering X of the judgment, located at Folios 1555 in fine and following, refers to the so-called Intellective and legal evidentiary grounding regarding the conduct of [Name01 018], culpability, and penalty to impose. It begins by describing, through a synopsis, a criminal conduct that derives, according to the Majority Judges, from the offering and subsequent payment of a gift (dádiva) to the accused [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, to culminate in a conviction for the crime of illicit enrichment. One must ask then: if the conviction of [Name01 018] is for the crime of illicit enrichment, which only requires the admission of gifts, what importance does the issue of an offer or offering have for the purposes of the typicality of the conduct? The Judges refer at Folio 1561 that the money received by [Name01 018] was in the nature of a gift, which reinforces that the reason for the conviction is solely for that presumed reception and not for the acceptance of any promise, much less for carrying out actions of any kind as consideration for the gift he received, according to the majority vote. But at Folio 1567 the Judges again refer to the issue of a promise, when they indicate that [Name01 018] was made a REMUNERATIVE PROMISE similar to the one made to [Name01 064] and that this panorama, the Judges indicate, IS DETERMINING FOR THE RESPONSIBILITY OF [Name01 018]. Thus, Honorable Magistrates, what is it that the Majority Judges deem proven: the remunerative promise or the reception of the money or both. If in point C) which begins at Folio 1567 it is determined that a meeting was held between [Name01 018], [Name01 063], and [Name01 041] and its only evidence is an invoice indicating the payment of a bill at the café [...] which indicates on its back that it concerns a breakfast at 8:21 on August 17, 2000, as indicated by item of evidence 81, it is evident that for the Judges it is fundamental to prove that the meeting was held and that there [Name01 274] made a remunerative promise to [Name01 018], otherwise the referred meeting would have no importance whatsoever and they would only use their time to prove the presumed reception of the gifts and not their offering …” </span><span style="font-family:Arial">(F. Telf01 and Telf02 front). The appeal affirms that to over-dimension the actions of [Name01 018], </span><span style="font-family:Arial; font-style:italic">“they have him accept a remunerative promise derived from a meeting with [Name 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which is proven with only a credit card payment voucher...”</span><span style="font-family:Arial"> (Telf04 front). The judges recognize that there is no direct evidence regarding “</span><span style="font-family:Arial; font-style:italic">the offer of a remunerative promise from [Name01 041] to [Name01 018]</span><span style="font-family:Arial">”, but they conclude that it is extracted from the direct evidence that exists about the preceding and subsequent facts. This, says the appellant, is incredible. There is no evidence on this matter, no one stated what was said in that meeting, hence it could have been about any other topic. No one saw them in that place, no one testified about the holding of the meeting, but the mere existence of the voucher, for the majority vote, is proof of the meeting. With that same thesis, the defender ironizes, [Name01 041] could have stated in the expense receipt that he had lunch with [Name25], and that would be sufficient proof thereof. He adds that this leaves a doubt about what is the fact that is deemed proven, namely, whether the existence of the remunerative promise from [Name01 041] to [Name01 018], the reception of the gifts, or both. There is a difference between intending to deem the remunerative promise proven, or only the reception of the gift. </span><span style="font-family:Arial; font-weight:bold">Fifth ground. Insufficient grounding of the judgment and non-observance of the rules of sound criticism, with violation of articles 142, 184, and 369 subsection d) of the CPP. </span><span style="font-family:Arial">It questions again deeming an offer of a gift proven without evidence for it, using only the expense receipt from [Name01 041]’s credit card, which speaks of a breakfast with [Name01 018] and [Name01 063]. This proves that [Name01 041] justified the expense, but it does not prove that the meeting actually took place. Even less can the content of the meeting and its consequences be derived from that evidence: </span><span style="font-family:Arial; font-style:italic">“It is not possible that the reception of the gifts presumes their offering, since that would make the difference between the acceptance of gifts for an act performed and bribery or aggravated corruption disappear. It does not Name11 that the gift is perceived, it was previously offered...”</span><span style="font-family:Arial"> (F. 172,755 front). </span><span style="font-family:Arial; font-weight:bold">Sixth ground. Insufficient grounding of the judgment and non-observance of the rules of sound criticism, with violation of articles 142, 184, and 369 subsection d) of the CPP.</span><span style="font-family:Arial"> In this ground it is affirmed: </span><span style="font-family:Arial; font-style:italic">“… Considering X-D of the judgment, which runs from Folios 1572 to 1579, intends to demonstrate that [Name01 018] received a fractionated payment of the gift offered on a specific date. It has already been indicated that the Majority Judges erroneously estimate that in a meeting held on August 17, 2000, at 8:21, [Name01 018] was offered the payment of 0.5 percent of the contract that was obtained..., thus, with such precision and detail (See folio 1570). For the Judges, that precise but false determination was important, with the intention of attributing to [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">a fractionated reception of a gift previously accepted and offered. Let us see. The criminal type of Article 346 subsection c) for which the Judges sanction [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">establishes that this crime is committed when gifts are admitted... WHILE REMAINING IN THE EXERCISE OF THE POSITION. [Name01 018] ceased to be a Deputy of the Legislative Assembly on April 30, 2002, so any reception of money by [Name01 091] after that date would be outside the criminal classification. The so-called first investment certificates are indicated to have been deposited in [Name01 018]’s accounts in January 2002, with him being a Deputy of the Legislative Assembly, which generates other typicality and evidence problems that will be discussed later. But now we will limit ourselves to the transfers and presumed gifts issued after April 30, 2002, that is, delivered to [Name01 018] when he no longer remained in the exercise of the position and therefore without meeting the criminal characteristics, according to the described criminal type. But fully forcing the evidence, the Majority Judges point out that the payments after April 30 were offered and accepted by [Name01 018] since that August 17, 2000. As we have already demonstrated, it is impossible to derive from the evidence that this meeting was held and, if its existence were accepted, it is materially impossible to know what was discussed in it and even less to specify in detail its content with the exactness that the Judges derive …</span><span style="font-family:Arial">” (F. 172,756 front). As the appellant explains, since it is not possible to establish that [Name01 041] offered fractionated payments to [Name01 018], any reception of money made after May 1, 2002, would not be criminal, as [Name01 018] no longer held the position for which the gifts were presumably offered. He reiterates that the judgment breached the rules of sound criticism by concluding that there was a promise of fractionated payment from [Name01 041] to [Name01 018] and that this promise can only be proven through an act </span><span style="font-family:Arial; font-style:italic">“imaginative and creationist” </span><span style="font-family:Arial">of the judges. The section ends by pointing out that the existence of a fractionated payment promise cannot be demonstrated and that therefore, given that for the payments after April 30, 2002, [Name01 018] was not exercising the public position, his conduct would be unpunishable.</span><span style="font-family:Arial; font-weight:bold"> Seventh ground. Non-observance and erroneous application of substantive law, with infringement of article 369 subsection j). </span><span style="font-family:Arial">According to the court, there was a remunerative promise fractionated into gifts from [Name01 041] to [Name 018], which is not real. The legislative period of [Name01 018] extended from May first, 1998, to April 30, 2002 (folio 1557 of the judgment) and therefore, the gifts he supposedly received after this latter date would be unpunishable. On the other hand, the judgment intends to prove that [Name01 091], through [Name02 058], paid gifts to [Name01 018]. On the subject, it is affirmed: </span><span style="font-family:Arial; font-style:italic">“… Let us observe in detail each of those so-called deliveries, the first two having been made, according to the Judges, between January and February 2002, that is, when [Name01 018] was still a Deputy, which we will address in another section. We will now analyze the deliveries from the third to the seventh. Third delivery: detailed at folio 1584 to 1587. According to the Judges, the funds leave the account of [Name01 058] and arrive, through [Name01 063], into the possession of [Name02 018] in January and October 2003, for a total amount of 55,000 dollars. On those dates, [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">no longer held the position of Deputy, since from May 8, 2002, he was the Executive President of the CCSS, a position absolutely different from that of Deputy, with no relation to it whatsoever and even less to the activities of [Name01 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. Therefore, it is clear that, if such transfers and deliveries of money exist, which is not the case, as will be analyzed later, they would be atypical, as they were received when he no longer remained in the exercise of the position, which is an element of the criminal type of illicit enrichment. Fourth delivery: detailed at folio 1587 to 1598. According to the Judges, there are 19 investment certificates delivered by [Name01 018] to [Name01 158] that are not included in the accusation, so they cannot serve as a basis for the conviction, but in any case, all of them are issued after May 1, 2002, as stated at Folio 1594, since the first of them is from July 2 of that year, more than two months after [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">left the position of Deputy. But in any case, the reception of such investment certificates is not an indicted fact. The only one denounced is number [Value 041] for 50,000 dollars, which is described at folio 1596, and according to the Judges, was delivered to [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">on May 5, 2003, more than a year after having left the position of Deputy, so its presumed reception would become atypical. Fifth delivery: detailed at folios 1598 to 1607. According to the Judges, through the company [Name 215],</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">[Name 018] receives three transfers for 55,000 dollars on July 17, 2003, 275,000 dollars on October 27, 2003, and 100,000 dollars on January 7, 2004, as indicated at folio 1598 in fine. All of them are evidently after May 1, 2002, and would have been transferred, if it were true that they were directed to [Name01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, 14 months, 17 months, and 20 months later, respectively, after having left the position of Deputy, so their eventual reception would become atypical. Sixth delivery: detailed in folios 1607 to 1608. In a totally ill-intentioned manner, the transfer of October 27, 2003, indicated in the previous point, is repeated, with the spurious intention of inflating and over-dimensioning the conduct of [Name01 018]. Seventh delivery: detailed in folios 1608 to 1613. Again, in an ill-intentioned manner, the transfer of January 7, 2004, is repeated. Name02, there are not seven deliveries but five that the Judges analyze, the other two are repeated with malicious intentions. But the worst is what they point out at Folio 1610, when they indicate that all those sums that they attribute to [Name01 018] having received come from a single action of illicit enrichment and that they received them in late 2001 and early 2002. UNBELIEVABLE. It is evidenced that the sixth and seventh deliveries did not exist, as they are nothing more than repetitions of the previous ones. It is demonstrated that it is impossible to prove that there was a remunerative promise in August 2000 for the total of the gifts and that it was then a matter of fractionated payments of a total gift already admitted since that year 2000, as the Judges maliciously indicate …” </span><span style="font-family:Arial">(F. 172,757 and 172,758 front). Any payment, gift, or transfer of money that [Name01 018] presumably received after May 1, 2002, is an atypical fact, by reason that he no longer held the position of deputy, an office in whose capacity, according to what is affirmed in the ruling, he received those sums of money. </span><span style="font-family:Arial; font-weight:bold">Eleventh ground.

The judgment is insufficient in its reasoning for determining the <span style="font-family:Arial; font-weight:bold; font-style:italic">quantum</span><span style="font-family:Arial; font-weight:bold"> of the sentence imposed on [Nombre01 018] and for denying the grant of a conditional stay of execution, in violation of articles 59, 60 and 71 of the Penal Code and 367 and 369, subsections d) and i) of the C.P.P.</span><span style="font-family:Arial"> The court imposed on [Nombre01 018] the sentence of two years of imprisonment (that is, the maximum sentence) for the crime of illicit enrichment and denied him the benefit of a conditional stay of execution. The reasoning for both decisions is insufficient. Regarding the first, consideration was given to the defendant's understanding of his acts, his intelligence, his status as a deputy, and his capacity to conceal his illicit enrichment. Now, the appellant alleges that " </span><span style="font-family:Arial; font-style:italic">if he understood and acted accordingly</span><span style="font-family:Arial">" is a condition that must be taken into account for a finding of guilt and not for imposing the sentence. Furthermore, his status as a deputy is not a circumstance that justifies aggravating the sanction, as this would mean that every time a deputy is found guilty, the maximum sentence must be imposed. See also that [Nombre01 018] did not carry out any activity as a deputy in the exercise of his functions, such that the public function was not endangered, nor were the assets of the public treasury. Regarding the amount of the bribe, which the female judges estimate at more than 500 thousand dollars, he questions that sums presumed to have been received after he ceased to be a deputy are considered, in clear violation of article 346 of the Penal Code: </span><span style="font-family:Arial; font-style:italic">"Thus, if that sum were excluded, what would remain are the 30,000 dollars estimated to have been received in the Bahamas account, the legality of which is questioned, and the 40,000 constituted by the certificates whose delivery is disputed in this appeal, but even accepting, as a hypothesis, the receipt of the bribe while he held the office of Deputy, the amount thereof would be 15 percent of what the female judges calculate, so the sentence would never be the maximum set ..." </span><span style="font-family:Arial">(F. 172.763 front).</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> As for what happened when he was no longer a deputy, since it is not punishable, it could not be considered for increasing the sentence either. He adds that the matter related to his daughter's vehicle and the alleged use of the accounts of [Nombre01 063] and [Nombre01 158] refer to amounts supposedly received when the defendant no longer held the office of deputy. Likewise, he considers that the rejection of the benefit of a conditional stay of execution regulated by articles 59 and following of the Penal Code is not reasoned. Even though it is a benefit and not a right for the accused, the court should have provided reasons for the denial, as the Constitutional Chamber has stated in resolution No. 3624-96. See that the female judges, to justify the denial, only mention his criminal participation from the Legislative Assembly, the so-called social harm caused, and the amount of the bribe allegedly received. The appellant points out: </span><span style="font-family:Arial; font-style:italic">“… Let us analyze that reasoning: with that thesis, Deputies who are convicted cannot receive the benefit, which improperly applies a criminal law based on the perpetrator and not the act. It suffices that he is a Deputy to deny the benefit. It refers to a social harm caused, when the same judgment omits a ruling on the civil action for damages Nombre03 that claims that alleged harm, such that it is contradictory to use the alleged existence of the harm and not rule on it. Regarding the amount of the bribe, this has no relation to the requirements for the benefit to proceed, which are incorporated in Article 60 of the Penal Code, which the Court did not refer to at any time, completely ignored it, as if it did not exist, and denied the benefit by judicial fiat without any legal basis </span><span style="font-family:Arial">…” (F. Telf03 and Telf05 front). Therefore, he requests that the imposed sentence be annulled, or at least the rejection of the benefit of a conditional stay of execution of the sentence. </span><span style="font-family:Arial; font-weight:bold">Twelfth ground. The judgment does not apply the rules of sound criticism, provides absolutely no reasoning, and departs from the provisions regulating the penalty of disqualification, when it sentences [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold">to twelve years of disqualification from obtaining and holding public employments, positions, or commissions, violating articles 142, 184 and 369, subsections d) and i) of the C.P.P. and 50, 57, 58 and 358 of the Penal Code</span><span style="font-family:Arial">. Although it is the judges' power to impose disqualification, both its application and its duration must be reasoned, Nombre02 which does not happen in this case. The matter was justified in two lines, on page 1,625 </span><span style="font-family:Arial; font-style:italic">in fine</span><span style="font-family:Arial"> . Disqualification was imposed for twelve years and the reasons why this penalty is deemed appropriate are not explained, nor is the choice of that </span><span style="font-family:Arial; font-style:italic">quantum</span><span style="font-family:Arial">. It is not explained why it covers all " </span><span style="font-family:Arial; font-style:italic">public employment</span><span style="font-family:Arial">" and not only those by popular election, which was the one [Nombre01 018] held when committing the crime. The appellant considers that the judgment is null on this point, due to a total lack of reasoning. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXX.- The objections must be partially upheld, in the terms and with the consequences that will be stated</span><span style="font-family:Arial">. For the purpose of achieving greater expository clarity, it is necessary to reproduce some of the facts accused by the requesting body and those the court considered proven in relation to [Nombre01 018]: </span><span style="font-family:Arial; font-style:italic">“…220) Nombre02, between the months of July and August 2000, the accused [Nombre01 018] and [Nombre01 063] held meetings with the indictee [Nombre02 041] and the defendant [Nombre01 078], in which they continued discussing the issue of the lack of opening by the I.Nombre72 to public tenders in the field of cellular telephony.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> In one of these encounters, the accused [Nombre01 041] and the defendant [Nombre01 078], </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">offered</span><span style="font-family:Arial; font-style:italic"> the accused [Nombre01 018], in consideration of his office, the delivery of a bribe consisting of money if the opening to public tenders at the I.C.E were achieved, equivalent to 0.5% of the contract that was obtained. 221) By virtue of the foregoing, the accused [Nombre01 018] </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">shows his consent to the offer of the bribe</span><span style="font-family:Arial; font-style:italic"> and decided to share it with [Nombre01 063], for having made the contact with the corruptors. 222) As had been agreed, once the award of the abbreviated public tender was achieved in favor of [Nombre01 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, the accused [Nombre01 041], by common agreement with the defendant [Nombre01 078], </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">began the delivery, in fractions, of the bribe that had been promised to the co-accused [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">in consideration of his office</span><span style="font-family:Arial; font-style:italic">. 223) To this end, they used the same form of payment employed with other of the accused public officials of the I.C.E, channeling the funds through the accused [Nombre01 028]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and his company [Nombre01 058].</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 224) Thus, on December 10, 2001, the accused [Nombre01 028], according to the plan he had previously drawn up with the defendant [Nombre01 078] and the accused [Nombre01 041], from the money previously transferred by the company [Nombre01 060], drew check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. at Cuscatlán International Bank and on December 10, 2001, acquired with that sum a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18 Identificacion19 and Identificacion20 each for the sum of ten thousand dollars ($10,000), and gave instructions to the financial entity</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> for the certificates to be deposited into account No.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> [Valor 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">in the name of BSJ International Bank</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> with Banco</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> San José.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 225) </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">On January 15, 2002, the accused [Nombre01 018], while he remained in the exercise of the office of deputy, accepted the bribe that was presented to him in consideration of his office by receiving at BAC San José the three previous certificates</span><span style="font-family:Arial; font-style:italic">, which totaled thirty thousand dollars ($30,000). On that same date, he began to enjoy the illicit money received; to this end, he instructed the banking entity that these funds be added to eight thousand one hundred sixty-five</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] with BAC San José and</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> $161,725 corresponding to the principal</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> and coupon of investment certificate</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> No.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 720016762, in order to reach the total of two hundred thousand dollars ($200,000) at BAC International Bank, an amount with which</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> he acquired, in his name, certificate No. 720096897</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> from the same</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> banking entity in</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> the Bahamas.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 226) Likewise, with the funds indicated in the preceding fact, the indictee [Nombre01 028] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 of Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to the bearer and maturing on January 11, 2002, which he caused to reach [Nombre01 063].</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> Once in his possession, [Nombre01 063] endorsed the certificates with the respective</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> interest coupons and deposited them into account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18);</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> he then requested a check for three thousand dollars ($3,000)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> and the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> he invested in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares. 227) </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">On January 10, 2002, the accused [Nombre01 041] continued with the delivery of the illicit bribe in favor of the accused [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">, following what was agreed upon regarding the distribution of funds with the indictee [Nombre02 028]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. In this manner, he applied a debit to the account of [Nombre 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them numbers 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 of Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to the bearer.</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">These certificates were delivered by [Nombre01 028] to [Nombre02 018], who accepted them on February 11 of that same year</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, the date of their maturity, immediately endorsed them, and deposited them into his account No. [Valor 047]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with BAC San José, together with the four interest coupons totaling $129.16. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002 and issued to the bearer, between the days of January 9 and February 11, 2002, were delivered to [Nombre01 063], who upon their maturity between February 11 and 13, 2002 endorsed them and deposited them into his Scotiabank, S.A. account No. [Valor 061]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, with their respective interest coupons amounting to $64.58. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002 and issued to the bearer, between the days of January 9 and February 11, 2002, were delivered to [Nombre01 063], who upon their maturity between February 11 and 13</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic">, 2002 endorsed them and deposited them into his Scotiabank, S.A. account No. [Valor 061]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, with their respective interest coupons amounting to $64.58.229</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">) Without specifying the date but at the end of the year 2002, after the accused [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">accepted the bribe that was delivered to him in consideration of his office as deputy, without the total delivery of the same having been made to him and without there having been a prior collaboration agreement</span><span style="font-family:Arial; font-style:italic">, he devises a procedure to avoid being directly linked to the crime and to divert the controls of the national banking system. To this end, he asked the accused [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">for an account number to partially receive the bribe; knowing the illicit origin of the money, [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">provided him with bank account number No. [Valor 059]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with Banco Internacional de Costa Rica (BICSA) at the Agency in Miami, a detail that [Nombre01 018] transmitted to [Nombre02 041], who in turn referred it to the accused [Nombre02 028]</span><span style="font-family:Arial"> </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"> 230) In this manner, on January 16, 2003, the accused [Nombre01 028], through his company [Nombre02 058]., ordered Cuscatlán International Bank &amp; Trust, Co. Ltd. to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of the indictee [Nombre01 063], but intended for [Nombre01 018], by applying a decrement to the demand investment No. Identificacion21 for the cited sum.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 231) With the crediting of</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> the fifty-five thousand dollars ($55,000)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> in his favor, on January 30, 2003, the accused [Nombre01 063] acquired at BICSA the bearer certificates Nos.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75),</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> plus the interest coupons for $74.44</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"> for</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> a total of thirty-five</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and maturing on February 28, 2003. Subsequently, the accused [Nombre01 063] delivered them, after endorsement, to the accused [Nombre01 018].</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 232) Once this part of the bribe was accepted through the intermediation of [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, the co-indictee [Nombre01 018], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> [Valor 047]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with BAC San José; he canceled eight thousand dollars ($8,000) in payment of his credit card [Valor 050]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">from BAC San José and kept the sum of nine thousand nine hundred dollars ($9,900) in cash.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 233) To complete the delivery to the indictee [Nombre02 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of the fifty-five thousand dollars $55,000 received into his account, the accused [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into account No. [Valor 047] of [Nombre02 018] with BAC San José, on October 28 of that same year.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 234) In this way, the accused [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">helped ensure that the defendant [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment obtained for having accepted the bribe delivered by the employees of [Nombre01 091].</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 235) On an unspecified date, but approximately at the beginning of the year 2003, the indictee [Nombre01 028] continued with the delivery of the rest of the bribe coming from [Nombre01 060] via [Nombre 058]., in favor of the accused [Nombre02 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. The latter, with the aim of evading banking controls and disguising the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; in this manner, [Nombre01 018], concealing the illicit origin of the funds and the reason for receiving them, asked [Nombre01 158]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">a trusted friend, to lend him a bank account outside of Costa Rica, claiming he needed it</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> because money from the sale of a property was going to be deposited and he wished to keep it in an account outside the country. Thus, [Nombre01 158]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">provided him with the bank account registered in the name of the company he owned, [Nombre 215]</span><span style="font-family:Arial"> </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"> No. [Valor 041] of BAC Panamá.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 236) On April 2, 2003, the accused [Nombre02 028]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, by note, requested the application of a debit to account No. [Valor 012]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre 058]. in Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was contemplated No. Identificacion22 for fifty thousand dollars ($50,000) with a 33-day term. This certificate was delivered to [Nombre01 018], who Nombre11, with the aim of avoiding being discovered in his criminal activity, on May 5, 2003 gave it to [Nombre01 158] to be deposited into the account of [Nombre02 215]. In turn, [Nombre01 158] entrusted [Nombre01 225], a trusted employee, to carry out the corresponding procedure; in this manner, [Nombre01 225]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> liquidated that certificate together with the interest coupons for $116.45</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> at Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian-origin company [Nombre01 215]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., which was deposited into account No. [Valor 041] of BAC International Bank Panamá on May 6; thus, [Nombre01 018] managed to illicitly increase his assets with the money coming from [Nombre01 091], via</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> [Nombre 058]</span><span style="font-family:Arial"> </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"> 237) The accused [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">made known to the co-indictee [Nombre01 028] the account number in the name of [Nombre01 215] where subsequent deliveries should be sent.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> Nombre02, on July 17, 2003, the accused [Nombre01 028], as representative of [Nombre01 058]., continued with the delivery of the illicit bribe in favor of [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">; to this end, he again instructed the banking entity to apply a debit to his company's account and to transfer, to the order of [Nombre02 215]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. into account No. [Valor 041] in BAC Panamá, the sum of fifty-five thousand dollars ($55,000).</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> 238) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Nombre02 215]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">., without specifying the date, but shortly before August 11, 2003, the accused [Nombre01 018] asked [Nombre01 158] for help in purchasing a vehicle for his daughter [Nombre01 243].</span> [Nombre01 158] contacted the sales representative of the Purdy Motor Agency, with whom she coordinated the purchase of a Toyota RAV 4 vehicle and gave her the telephone number of the accused [Nombre01 018] so that they could arrange the purchase. 239) In order to pay for the vehicle, the accused [Nombre01 018] asked [Nombre01 158] for a check for its value. [Nombre01 158] issued check no. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from the checking account No. [Valor 041] of her represented company [Nombre 215] at BAC International Bank Panama in favor of Banco San José, and charged [Nombre01 225] with using it to acquire a cashier's check in the name of Purdy Motor for the indicated sum. On August 11, 2003, [Nombre01 018] formalized the transfer of the vehicle, a RAV 4, Toyota, red, four-door, license plate [Valor 052], into the name of [Nombre01 243], to whom it was given as a gift. 240) Continuing with the disposal of the money originating from [Nombre01 060], the accused [Nombre01 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre 215] to combine it with money from another source and acquire a dwelling in [...]. 241) On October 27, 2003, the accused [Nombre01 028] ordered that from the account of [Nombre 058]., with Banco Cuscatlán, a debit of one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) be applied and that a transfer be made to account No. [Valor 041] of [Nombre 215]., with BAC International Bank Panama, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the accused [Nombre01 018], a deposit that became effective on October 29, 2003. 242) Finally, on January 7, 2004, the accused [Nombre01 028], as legal representative of [Nombre 058]., issued instructions to the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum to send a transfer for one hundred thousand dollars ($100,000) to the account of [Nombre 215]., No. [Valor 041] with BAC International Bank Panama. 243) According to the foregoing, the accused [Nombre01 028], through his company [Nombre 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] with Cuscatlán International Bank in favor of [Nombre 215]., to account No. [Valor 041] with BAC International Bank in Panama, to be delivered to the accused [Nombre01 018], an effective income reduced by $21.00 due to the application of bank commissions, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, by this means [Nombre01 018] admitted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). Furthermore, through [Nombre01 063] he also admitted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift by reason of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 244) On the other hand, for having achieved the initial contact between him and the employees of the company [Nombre01 091], the accused [Nombre01 018] voluntarily decided to give money to [Nombre01 063], as explained below. 245) On November 11, 2003, [Nombre01 018] asked [Nombre01 158] to use the money deposited by the company [Nombre 058]. into the account of her represented company [Nombre 215]., to acquire a cashier's check in favor of [Nombre01 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre01 158] issued check No. 008 for that sum and entrusted the procedure to [Nombre01 225], who purchased from BAC San José bank cashier's check No. 75741-8 in favor of [Nombre01 063], for fifty-six thousand seven hundred forty-six dollars ($56,746). 246) After receiving the negotiable instrument from [Nombre01 158], [Nombre01 018] delivered it to [Nombre01 063], who on November 19, 2003, deposited it into account No. [Valor 051] of Puesto de Bolsa de Inversiones Sama, to invest it in the public growth dollar fund with the acquisition of 52,700.21 shares. 247) On February 4, 2004, the accused [Nombre01 018] again asked [Nombre01 158] to use the funds originating from the company [Nombre01 058]., deposited in the account of [Nombre 215]. at BAC International Bank in Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre01 063], for which [Nombre01 158] issued check No. 010, with which [Nombre01 225], to whom the procedure was delegated, purchased cashier's check No. 75992-0 from BAC San José for the indicated sum. After receiving it from [Nombre01 158], [Nombre01 018] delivered the said check to [Nombre01 063], who cashed it on February 10, 2004.

248) Finally, [Nombre01 018] asked [Nombre01 028] to transfer the sum of fifty thousand dollars to [Nombre01 063] from the money originating from [Nombre01 091]. Thus, on April 2, 2003, [Nombre01 028] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre01 028] delivered it to [Nombre01 063], who liquidated it together with the accrued interest of $121.45, and deposited all the money into account No. [Valor 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] with said institution. [Nombre01 063] supplemented it with other money of unknown origin and acquired shares in the public growth dollar fund for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 249) Via [Nombre 215], [Nombre01 063] received from the money admitted by [Nombre01 018], the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21).” (F. 14494 and 14500 front, volume XXX, the highlighting is not from the original). Regarding the proven facts, it is established that: “201) The accused [Nombre01 018] held the status of a public official as a result of a popular election in which he was designated as a Deputy of the Legislative Assembly for the Partido Unidad Social Cristiana, for the constitutional terms from May 1, 1990, to April 30, 1994, and from May 1, 1998, to April 30, 2002. 202) In the exercise of his position as deputy, the accused [Nombre01 018] was a member of the joint legislative committee that was formed as a result of the social movement that arose against the legislative projects known as the 'combo del I.C.E.', and on April 4, 2000, he was appointed president of the Joint Legislative Committee, taking a direct leading role in the political activity related to telecommunications matters. 203) [Nombre01 063] also served as a public official from August 1, 1974, to September 27, 2004, holding a permanent position at the I.C.E., an institution where he worked in various roles, the last of which was as Deputy Chief of Management in different units from December 1, 1996, to September 27, 2004, including the ICETEL sub-management attached to the UEN de Servicios Internacionales and the UEN de Desarrollo Ejecución de Proyectos. During that period, Mr. [Nombre01 063] was a coworker of Mr. [Nombre01 128], who later stopped working at the I.C.E. and began working at the company [Nombre 091] Costa Rica, a local subsidiary of the corporation [Nombre01 091]. 204) Having previously been informed that [Nombre01 063] knew the Head of the PUSC Congressional Group, the accused [Nombre01 018], Mr. [Nombre01 128] (at that time Commercial Director of customer accounts at [Nombre01 091]) made a telephone call to [Nombre01 063] during 1999 to request that he arrange a meeting between the two of them. At that time, [Nombre01 091] sought to establish communication with important actors in the national political landscape, including deputies who were heads of congressional groups in the Legislative Assembly, in order to present [Nombre01 091]'s complaint against the direct purchase contract “ICE-ERICSSON” for the acquisition of 83,000 cellular lines, considering that the I.C.E. was avoiding competitiveness among suppliers and technological improvements in mobile telephony. 205) As a result of the intervention of [Nombre01 063], a first meeting occurred between the accused [Nombre01 018] and [Nombre01 128] at the end of 1999, in which the latter presented the public complaint against the aforementioned project. 206) Subsequently, in the year 2000, [Nombre01 091] continued with another public complaint campaign against the I.C.E.'s reluctance to allow the development of cellular telephony through GSM technology, and with the purpose that this company could enter that field through a public bidding process. Therefore, following the same dynamic as before, starting in the months of March and April of that year, [Nombre01 128] fostered, through [Nombre01 063], a new communication with the accused [Nombre01 018], in consideration of his status as deputy and head of the PUSC congressional group, which was the majority caucus during that legislative term, and his prominence in the area of discussion regarding the issue of telecommunications. 207) On an undetermined date, approximately during the first months of the year 2000, at the initiative of representatives of the company [Nombre01 091], the accused [Nombre01 018], by reason of his office, met with [Nombre01 128] on various occasions, with [Nombre01 063] participating occasionally, in which the employee of [Nombre01 091] raised the advisability of the opening by the ICE to open bidding processes regarding the acquisition of cellular telephony and the benefits of GSM technology. He commented on the complaint filed by [Nombre01 091] before the Contraloría General de la República, as well as the need for it to receive real attention; a presentation made with the aim of seeking mechanisms to make its success feasible in the various political and administrative forums where the issue was discussed. These meetings took place, for example, in the Legislative Assembly, in nearby coffee shops, or at the Hotel San José Palacio. 208) Without being able to establish the exact date, but between the months of February and July of the year 2000, the accused [Nombre01 018], after several meetings with [Nombre01 128], requested that a meeting be arranged with his superiors, the accused [Nombre01 041] and the sentenced [Nombre01 078]. 209) It was thus that, on August 17, 2000, the accused [Nombre01 018] and [Nombre01 063] held a meeting with the accused [Nombre01 041] at Café [...], in which they continued addressing the issue of the lack of opening by the ICE to public bidding processes regarding cellular telephony. In one of these meetings, the accused [Nombre01 041] and the sentenced [Nombre01 078], offered the accused [Nombre01 018], in consideration of his office, the delivery of a gift consisting of money if the opening to public bidding processes at the I.C.E. was achieved, equivalent to 0.5% of the contract obtained. 210) By virtue of the foregoing, the accused [Nombre01 018] shows his acquiescence to the offer of the gift and decided to share it with [Nombre01 063], for having achieved the contact with the corruptors. 211) As had been agreed, once the award of the abbreviated public bidding process was achieved in favor of [Nombre01 060], the accused [Nombre01 041], in mutual agreement with the sentenced [Nombre01 078], began the fractional delivery of the gift that had been promised to the co-defendant [Nombre01 018] in consideration of his office. 212) To do this, they used the same payment method employed with other accused I.C.E. officials, channeling the funds through the accused [Nombre01 028] and his company [Nombre 058]. 213) In this manner, on December 10, 2001, the accused [Nombre01 028], in accordance with the plan previously outlined with the sentenced [Nombre01 078] and the accused [Nombre01 041], from the money previously transferred by the company [Nombre01 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058]. at Cuscatlán International Bank and, on December 10, 2001, acquired with that sum a series of bearer investment certificates from Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and issued instructions to the financial institution for the instruments to be deposited in account No. [Valor 060] in the name of BSJ International Bank with Banco San José. 214) On January 15, 2002, the accused [Nombre01 018], while still holding the office of deputy, admitted the gift that was presented to him in consideration of his office by receiving at BAC San José the three aforementioned certificates, which totaled thirty thousand dollars ($30,000). On that same date, he began enjoying the illicit money received; to that end, he instructed the banking institution to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] with BAC San José and $161,725 corresponding to the principal and coupon of investment certificate No. 720016762, in order to reach the total of two hundred thousand dollars ($200,000) at BAC International Bank, an amount with which he acquired in his name certificate No. 720096897 from the same banking institution in the Bahamas. 215) Likewise, with the funds indicated in the preceding fact, the accused [Nombre01 028] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to the bearer and maturing on January 11, 2002, which he had delivered to [Nombre01 063]. Once in his possession, [Nombre01 063] endorsed the certificates with the respective interest coupons and deposited them in account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); then he requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares. 216) On January 10, 2002, the accused [Nombre01 041] continued with the delivery of the illicit gift in favor of the accused [Nombre01 018], following what was agreed upon regarding the distribution of the funds with the accused [Nombre01 028]. In this way, he applied a debit to the account of [Nombre 058]. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them Nos. 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to the bearer. These instruments were delivered by [Nombre01 028] to [Nombre01 018], who admitted them on February 11 of that same year, their maturity date, immediately endorsed them, and deposited them into his account No. [Valor 047] with BAC San José, along with the four interest coupons for a total of $129.16. 217) Likewise, the other two certificates, Nos. 224-002-0038517, 224-002-0038568, with a maturity date of February 11, 2002, and issued to the bearer, were delivered between January 9 and February 11, 2002, to [Nombre01 063], who, upon their maturity, between February 11 and 13, 2002, endorsed them and deposited them into his account at Scotiabank, S.A. No. [Valor 061], with their respective interest coupons amounting to $64.58. 218) Without specifying the date, but at the end of 2002, after the accused [Nombre01 018] admitted the gift that was delivered to him in consideration of his office as deputy, without the total delivery of the same having been made and without a prior collaboration agreement, he devises a procedure to avoid being directly linked to the crime and to bypass the controls of the national banking system. For this, he asked the accused [Nombre01 063] for an account number to partially receive the gift, and [Nombre01 063] provided him with bank account number No. [Valor 059] at Banco Internacional de Costa Rica (BICSA) at the Agency in Miami, a piece of information that [Nombre01 018] transmitted to [Nombre 041], who in turn referred it to the accused [Nombre01 028]. 219) In this manner, on January 16, 2003, the accused [Nombre01 028], through his company [Nombre 058]., ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059] of [Nombre01 063], but intended for [Nombre01 018], by applying a decrease to the demand investment No. Identificacion21 for the cited sum. 220) With the crediting of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, [Nombre01 063] acquired from BICSA bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus the interest coupons of $74.44 for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and with a maturity date of February 28, 2003. Subsequently, [Nombre01 063] delivered them, after endorsement, to the accused [Nombre01 018].

221) Once this part of the gift was admitted through the intermediation of [Nombre01 063], the co-defendant [Nombre02 018], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Valor 047] at BAC San José; he paid eight thousand dollars ($8,000) toward his credit card [Valor 050] at BAC San José and kept the sum of nine thousand nine hundred dollars ($9,900) in cash. 222) To complete the delivery to the defendant [Nombre02 018] of the fifty-five thousand dollars ($55,000) received into his account, [Nombre02 063], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Nombre01 018] No. [Valor 047] at BAC San José, on October 28 of that same year. 223) In this way, with the intervention of [Nombre01 063], the accused [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment for having admitted the gift delivered by the employees of [Nombre01 091]. 224) On an unspecified date but approximately at the beginning of 2003, the defendant [Nombre01 028] continued with the delivery of the remainder of the gift from [Nombre01 060] via [Nombre 058]., in favor of the accused [Nombre02 018]. The latter, in order to evade banking controls and conceal the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; in this way, [Nombre01 018], concealing the illicit origin of the funds and the reason for their receipt, asked [Nombre01 158], a trusted friend, to lend him a bank account outside of Costa Rica, claiming he needed it because money from the sale of a property was going to be deposited and he wished to keep it in an account outside the country. Thus, [Nombre01 158] provided him with the bank account registered in the name of his company [Nombre 215], No. [Valor 041] at BAC Panama. 225) On April 2, 2003, the accused [Nombre02 028], by means of a note, requested the application of a debit to account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was certificate No. [Nº Identificacion22] for fifty thousand dollars ($50,000) with a term of 33 days. This instrument was delivered to [Nombre01 018], who, with the purpose of evading detection in his criminal activity, on May 5, 2003, gave it to [Nombre01 158] to deposit into the account of [Nombre02 215]. In turn, [Nombre01 158] entrusted [Nombre01 225], a trusted employee, to carry out the corresponding procedure, and so [Nombre01 225] liquidated that certificate along with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian company [Nombre01 215]., which was deposited into account No. [Valor 041] at BAC International Bank Panama on May 6; thereby achieving, [Nombre01 018], an illicit increase in his assets with the money from [Nombre01 091], via [Nombre 058]. 226) The accused [Nombre01 018] informed the co-defendant [Nombre02 028] of the account number in the name of [Nombre01 215] where subsequent deliveries should be sent. Thus, on July 17, 2003, the accused [Nombre01 028], as legal representative of [Nombre01 058]., continued with the delivery of the illicit gift in favor of [Nombre01 018]; to do so, he again issued instructions to the banking entity to apply a debit to his company's account and to transfer to the order of [Nombre01 215]. to account No. [Valor 041] at BAC Panama, the sum of fifty-five thousand dollars ($55,000). 227) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Nombre01 215]., without specifying a date, but shortly before August 11, 2003, the accused [Nombre01 018] asked [Nombre01 158] for help in purchasing a vehicle for his daughter [Nombre02 243]. [Nombre02 158] contacted the sales manager at the Purdy Motor Agency, with whom he coordinated the purchase of a Toyota RAV 4 vehicle and gave her the telephone number of the accused [Nombre01 018] so they could arrange the purchase. 228) In order to pay for the vehicle, the accused [Nombre01 018] asked [Nombre01 158] for a check for its value. Thus, [Nombre01 158] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from the checking account No. [Valor 041] of his represented company [Nombre 215] at BAC International Bank Panama in favor of Banco San José, and entrusted [Nombre01 225] to use it to acquire a cashier's check in the name of Purdy Motor for the indicated sum. On August 11, 2003, [Nombre01 018] formalized the transfer of the Toyota RAV 4 vehicle, red, four-door, license plate [Valor 052], in the name of [Nombre01 243], to whom he gifted it. 229) Continuing with the disposition of the money from [Nombre01 060], the defendant [Nombre 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre01 215] to combine it with money from another source and acquire a home in [...]. 230) On October 27, 2003, the accused [Nombre01 028] ordered that from the account of [Nombre 058], with Banco Cuscatlán, a debit be applied for one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) and that a transfer be made to account No. [Valor 041] of [Nombre 215]., with BAC International Bank Panama, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the defendant [Nombre02 018], a deposit that was made effective on October 29, 2003. 240) Finally, on January 7, 2004, the accused [Nombre 028], as legal representative of [Nombre 058]., issued instructions to the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum send a transfer for one hundred thousand dollars ($100,000) to the account of [Nombre 215]., No. [Valor 041] at BAC International Bank Panama. 241) According to the foregoing, the accused [Nombre01 028], through his company [Nombre 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] at Cuscatlán International Bank in favor of [Nombre02 215]., to account No. [Valor 041] at BAC International Bank in Panama, to be delivered to the accused [Nombre 018], effective income that was reduced by $21.00 due to the application of bank commissions, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and via investment certificates from Banco Cuscatlán he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, through this channel [Nombre02 018] admitted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). On the other hand, through [Nombre01 063] he also admitted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift by reason of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 242) On the other hand, for having achieved the initial contact between himself and the employees of the company [Nombre01 091], the defendant [Nombre01 018] voluntarily decided to give money to [Nombre01 063], as explained below. 243) On November 11, 2003, [Nombre02 018] asked [Nombre01 158] to use the money deposited by the company [Nombre 058]. into the account of his represented company [Nombre 215]. to acquire a cashier's check in favor of [Nombre02 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre01 158] issued check No. 008 for that sum and entrusted the procedure to [Nombre02 225], who purchased from BAC San José bank cashier's check No. 75741-8 in favor of [Nombre 063], for fifty-six thousand seven hundred forty-six dollars ($56,746). 244) After receiving the negotiable instrument from [Nombre01 158], [Nombre 018] gave it to [Nombre 063], who on November 19, 2003, deposited it into account No. [Valor 051] at Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares. 245) On February 4, 2004, the defendant [Nombre01 018] again asked [Nombre01 158] to use the funds from the company [Nombre01 058]., deposited in the account of [Nombre 215]. at BAC International Bank in Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre02 063], therefore [Nombre01 158] issued check No. 010, with which [Nombre01 225], to whom the procedure was delegated, purchased cashier's check No. 75992-0 at BAC San José for the indicated sum. After receiving it from [Nombre02 158], [Nombre02 018] delivered said check to [Nombre01 063], who cashed it on February 10, 2004. 246) Finally, [Nombre01 018] asked [Nombre01 028] to transfer to [Nombre02 063] the sum of fifty thousand dollars from the money coming from [Nombre01 091]. Thus, on April 2, 2003, [Nombre01 028] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre01 028] gave it to [Nombre 063], who liquidated it along with the accumulated interest of $121.45 and deposited the entirety of the money into account No. [Valor 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] at said institution. [Nombre01 063] adjusted it with other money whose origin is unknown and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 247) Via [Nombre 215], [Nombre 063] received from the money admitted by [Nombre 018] the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21).” (F. 15,477 to f. 15,487 front, the highlighting is not from the original). The trial court, when analyzing the accusation, affirmed that it did not describe an improper bribery (cohecho impropio), since although reference was made to the offer of a gift and the acceptance of said offer by [Nombre 018], another of the components of that criminal offense was not mentioned, namely, the act proper to his functions (acto propio de sus funciones) that was expected of [Nombre 018]. The a quo indicated: “Therefore, this court considers that regardless of whether the conduct described by the Prosecutor's Office in its conclusions was proven or not (remunerative promise for attending to the public), the truth is that the accusation does not contain such a description, and in application of the principle of correlation between accusation and judgment (principio de correlación entre acusación y sentencia), that possibility could not even be evaluated. The Public Prosecutor's Office refers that [Nombre01 018] had the duty to receive the public without charging them, as political control corresponds to the Legislative Assembly; however, this is not an evidentiary matter, but rather one pertaining to the protection of the right of defense because no circumstance is indicated in the accusation, nor is it mentioned that there was a promise or that the gift was given to him for performing an act such as the one described (which was within his functions). And although logically if the basic criminal offense does not apply, neither does the aggravating factor, in any case the contracting of the 400,000 cellular lines does not concern the administration where [Nombre01 018] served (that is, the Legislative Assembly). Therefore, rather, it is considered that the accusatory description corresponds to that of the crime of Illicit Enrichment (Enriquecimiento ilícito), but before evaluating the reasons for determining that typical adjustment, the issue of the supposed tacit repeal of the criminal offense is addressed ...” (F. 16,055 and 16,056 front). Such conclusion, which was not challenged by the Public Prosecutor's Office, is correct, since indeed, the accusation did not contemplate what the act proper to his functions (acto propio de sus funciones) was that the corruptors expected from [Nombre01 018], a typical element that is of extreme importance, as it allows differentiating improper bribery from other figures, e.g., from proper bribery (cohecho propio), or from some even more complex ones that can become its complement, as additional purposes are sought (as happens, e.g., with the crime of aggravated corruption by bribery, whether proper or improper). Therefore, although certainly, in the accusation it was affirmed that [Nombre01 018] accepted the promise of remuneration, and even though the court deemed its content proven, the truth is that this issue is irrelevant, since, as is correctly recognized in the appealed judgment, it is impossible, or at least it is without violating the principle of correlation between accusation and judgment (principio de correlación entre acusación y sentencia), to consider it accredited that [Nombre01 018] accepted that promise of remuneration in exchange for “receiving the public,” as the Public Prosecutor's Office indicated, to remedy the error contained in its accusation. Having clarified this, it is appropriate to recall that the criminal offense of illicit enrichment (enriquecimiento ilícito) applicable in this case contemplated the admission of gifts that were presented or offered (presentadas u ofrecidas) to the public official in consideration of his office, while he remains in the exercise of the position. As explained in the sixth whereas clause (considerando sexto), to which the appellant must refer, it is a criminal offense that provides for two distinct scenarios, namely, i) the admission of presented gifts and ii) the admission of offered gifts. In the first hypothesis, the presentation and receipt of the advantage, and in the second, the offer and the admission of it, must take place while the public official remains in the position in consideration of which the remuneration is presented or offered. This is a difference that in matters such as the present one is not trivial, since in the second scenario the crime is configured regardless of whether the active subject receives the economic remuneration, whereby this receipt constitutes a subsequent unpunished act, which can take place after the public official has ceased to serve in the position. Having said this, it is important to emphasize that the trial court deemed it proven that [Nombre01 018] was offered a gift and that he accepted it (f. 16,064 front, last paragraph, volume XXXIII). That is, at least in principle, the second scenario of those previously set forth would be configured. Contrary to this, Mr. Villalobos Umaña claims that the cited offer cannot be deemed proven. For this chamber, he is correct. Let us see. To determine the liability of [Nombre01 018] regarding illicit enrichment, the court weighed a series of circumstances described from folio 15,997 front to 16,054 front of volume XXXIII and which can be outlined as follows: i) [Nombre01 018] was a deputy of the Legislative Assembly from May 1, 1998, to April 30, 2002, and later, from May 8, 2002, to April 21, 2004, he was the executive president of the Caja Costarricense del Seguro Social; ii) as a deputy, he was part of the special mixed commission (comisión especial mixta) that was formed after the protests over the so-called “combo del ICE.” The purpose was for said commission to issue a report and, until it did so, no legislative bill related to ICE would be processed. The foregoing is of interest, says the court, because at the management of [Nombre01 091] a document was seized called “Nueva Ley de Telecomunicaciones (Combo ICE), impacto sobre [Nombre01 091] y acciones a seguir” (“New Telecommunications Law (Combo ICE), impact on [Nombre01 091] and actions to follow”), which reveals the importance for the company of any action that could modify or affect commercial expectations or contracts with the referred institution (f. 15,999 front); iii) [Nombre01 063] worked at ICE from August 1, 1974, until September 27, 2004, and was the liaison between [Nombre01 091] and [Nombre01 018]. The representatives of [Nombre01 091] approached the latter, thanks to the mediation of [Nombre01 063], to present their concerns about the direct contracting carried out by ICE and which, according to them, excluded them from the market. The evidence accounts for this (expert report No. 428-DEF-443-05/05, evidence No. 630, PC06, file “Libro blanco” and the statement of [Nombre01 128]); iv) based on the testimonial evidence presented, it was ruled out that [Nombre01 018] had been a consultant for the company [Nombre 091], as well as that he had any commercial or labor relationship with [Nombre01 058]. that justified the receipt of the money delivered to him. Furthermore, [Nombre01 158] declared that this accused told him he had earned money with [Nombre01 091] easily, as he had done nothing, and, according to witness [Nombre01 116], [Nombre 041] spontaneously told her that he had paid bribes to public officials, among them [Nombre01 018]. The same occurs with [Nombre01 142], who indicated that [Nombre01 041] acknowledged having paid gifts to public officials in the media. Finally, the company [Nombre 091] had within its contracting policies the prohibition of hiring public officials as advisors. v) Based on the statement of [Nombre 128], it was established that [Nombre 018] was informed about the issue of mobile telephony and the interest of [Nombre01 091] in eliminating direct contracting without bidding. [Nombre01 091] had conducted two public and denunciation campaigns, one to oppose the contracting of lines to Ericsson in 1999 and another in 2000, regarding GSM technology, with contact existing with [Nombre01 018] since 1999. There were several meetings with the then deputy, and on one occasion, [Nombre01 018] asked [Nombre01 128] to speak with his superiors, a meeting that, according to the witness, did take place. vi) The court considered that from what [Nombre01 128] said, it can be extracted that [Nombre01 018] was contacted to discuss the elimination of direct contracting and the opening of the bidding process, which leads to the issue of the 400,000 cellular lines. This confirms the version of [Nombre02 064], in the sense that the offer of the gift was related to the issue of mobile exchanges and GSM technology, and to that extent, there are indications that allow glimpsing that a remunerative promise was also made to [Nombre01 018] under circumstances, in form and time, similar to that made to [Nombre01 064], only that while the latter was called by [Nombre01 078], it was [Nombre02 018] who asked to speak with the superiors of [Nombre01 128]. Moreover, the payments were also made to him through the same channels as to other accused individuals. vii) There is documentation that records that on August 17, 2000, at the café [...], [Nombre01 041] met with [Nombre 018] and [Nombre 063]; viii) [Nombre01 144], a messenger for the company [Nombre01 091], said he had taken envelopes sent by [Nombre01 041] to the accused [Nombre01 022], [Nombre 001], [Nombre 018], and [Nombre01 028], at their homes and offices. The secretary of [Nombre01 041] said that envelopes were sent to ICE and to the accused and that she knew their contents, however, “…this does not exclude that [Nombre01 144] took envelopes that were not the ones she knew; envelopes that also had different characteristics from those described as known to her person.” (F. 16,011 front). ix) Just as in the year 2000, the public campaign of [Nombre 091] in favor of public bidding and migration to GSM technology began, also between July 2000 and December of that year, representatives of [Nombre01 091] met with deputies and other figures from the political sphere. It was then that the meetings with [Nombre01 018], [Nombre01 001], and [Nombre01 064] occurred, all of whom ultimately received money from [Nombre01 060].

• x)Finally, the lower court (a quo) assessed abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [Nombre01 018] came from [Nombre01 060]. Having analyzed these indications and considering, of course, the hypothetical suppression that must be made of the testimony of [Nombre01 064], the undersigned conclude that it is not possible to hold it as proven that on August 17, 2000, at the Café [...], [Nombre 041] made a promise or offer of economic retribution to [Nombre01 018]. This Chamber has no doubt that the cited meeting took place; however, this is not sufficient to prove the offer, especially considering that the meetings were not unusual and that [Nombre01 128] himself acknowledged that part of [Nombre01 091]'s strategy was to meet with people from different sectors, including legislators. Likewise, the fact that [Nombre01 018] asked [Nombre01 128] to speak with his superior ([Nombre01 041]) is an amphibological indication, which even allows us to think of other hypotheses, for example, that it was this public official who, abusing his status as a legislator, forced or induced another to give or promise the patrimonial benefit he later received. Regarding the envelopes mentioned by the lower court (a quo), the same reflection made in previous recitals applies. Their content is an unknown, and to that extent, it is speculation by the court to maintain that they contained documentation related to the crime. Along these lines of thought, no one doubts that [Nombre01 018] received money from [Nombre01 060] in the same way that other defendants in this case did; however, extracting from this with a degree of certainty and not probability that on the mentioned 17th a promise or offer of economic retribution was conceived is impossible, especially considering that the core evidence to hold the cited promise and its scope as proven was the statement of the cooperating defendant [Nombre01 064] and this was considered illegal evidence. Without this account, as is the case with the other defendants, other possibilities cannot be ruled out, as already indicated: that the monies were requested by the public officials themselves, among whom is [Nombre02 018]; that they were economic retributions received without a prior promise, for an act performed or omitted in the capacity of a public official; or also, that the promise had a content different from that contemplated in the accusation. The range of possibilities, as can be seen, is extensive. The issue here is not the receipt of funds of irregular origin, a fact that was amply demonstrated, but rather establishing that before this receipt, specifically, on August 17, 2000, a promise or offer of economic retribution was made and that [Nombre01 018] accepted it. Not only is it impossible to hold it as proven that on the cited date a gift was promised to [Nombre01 018], even less that it was in exchange for "attending to the public" (an act proper to his functions that, according to the Public Prosecutor's Office in its conclusions, [Nombre01 041] expected from [Nombre 018], f. 16,055 front). Now, notwithstanding the error in the assessment of the evidence, it is unnecessary to annul the decision and order a new trial, since, as explained when examining the situation of other defendants, the possibility of incorporating additional evidentiary elements beyond those already existing is not foreseen, and to that extent, there is also no impediment to proceeding at this procedural stage to directly resolve what is appropriate, considering both the factual framework charged and the facts that have been held as proven and that remain unscathed after excluding the offer of a gift. And it is that, once the promise or offer is suppressed, what is necessary to have the crime of illicit enrichment (enriquecimiento ilícito) configured subsists, and therefore, to confirm the first-instance judgment insofar as it so declared. The criminal definition of enrichment has two modalities, as already stated, the admission (admisión) of a gift presented (presentada) and the admission (admisión) of a gift offered (ofrecida). While it cannot be assured that [Nombre01 018] admitted a gift that was offered to him, it can be affirmed—since it was contemplated both in the accusation and in the statement of proven facts—that this defendant admitted several economic retributions that were presented to him in consideration of his office and while he held the position of legislator. It is now appropriate to examine each of these retributions. First delivery: In proven facts No. 213 and 214, it is stated that on December 10, 2001, the accused [Nombre01 028], from the money previously transferred by the company [Nombre 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058]. at Cuscatlán International Bank and on December 10, 2001, acquired with that sum a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the instruments into account No. [Valor 060] in the name of BSJ International Bank with Banco San José. Likewise, that on January 15, 2002, the accused [Nombre02 018], while remaining in the exercise of the position of legislator, admitted that gift which was presented to him in consideration of his office, by receiving at BAC San José the three previous certificates, which totaled thirty thousand dollars ($30,000). For the undersigned, these facts clearly configure the crime of illicit enrichment (enriquecimiento ilícito), since the presentation of the gift occurred on the occasion of the position that [Nombre 018] held in the Legislative Assembly, and furthermore, this presentation, like the admission of the economic advantage, occurred while he was serving as a legislator. Second delivery: [Nombre01 018] was a legislator until April 30, 2002 (f. 15,998 front). In demonstrated fact number 216, it is indicated that on January 10, 2002, [Nombre02 028] applied a debit to the account of [Nombre 058]. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Nombre01 028] to [Nombre 018], who admitted them on February 11 of that same year—their maturity date—and immediately endorsed and deposited them into his account No. [Valor 047] with BAC San José, along with the four interest coupons for a total of $129.16. This also constitutes a crime of illicit enrichment (enriquecimiento ilícito), since a gift was admitted on the occasion of the office, during the exercise thereof. Third and successive deliveries: According to what is extracted from the demonstrated facts, the third to seventh delivery of gifts to [Nombre01 018] occurred after he had left the position of legislator, whereby his actions (consisting of accepting those economic retributions) are atypical. It is important to indicate that from the criminal definition under discussion, and in particular, from the scenario according to which a gift presented (presentada) is admitted, it is extracted that the admission must take place while the public official exercises the office in consideration of which the economic retribution is presented to him, in this particular case, the office of legislator, it not being sufficient merely to hold the condition of public official. For this reason, it is irrelevant that from May 8, 2002, to April 21, 2004, [Nombre 018] was the executive president of the C.Nombre82. Consequences of the foregoing. For this Chamber, the decision referred to above has no impact whatsoever on the legal classification attributed to the facts that have been held as proven, since once the reference to the promise or offer of a gift is hypothetically suppressed, and consequently, the existence of a single economic retribution that was offered and paid in installments, the necessary elements to hold at least the crime of illicit enrichment (enriquecimiento ilícito) for which the trial court convicted [Nombre01 018] remain unscathed, namely, that this defendant admitted the gifts that were presented to him due to his condition as a legislator and, in particular, as president of the legislative committee that would address the topic of telecommunications, all of which happened while he held the referred office. As we saw, it was held as proven that on January 15 and February 11, 2002, he accepted several bearer investment certificates. Specifically, on January 15, 2002, three certificates for ten thousand dollars each (demonstrated fact No. 214) and on February 11, 2002, four certificates, also for an amount of $10,000 each (proven fact No. 216). It is important to note that although for this tribunal not one, but two illicit enrichments (enriquecimientos ilícitos) in material concurrence are configured, the lower court (a quo) considered that a single crime was configured, a decision that was not challenged by the requesting body and, to that extent, cannot be modified to the detriment of the defendant. Regarding the remaining gifts transferred to [Nombre01 018], the situation is different. As we already explained, because they were presented during 2003 and early 2004, that is, sometime after [Nombre01 018] left the office of legislator, their reception is atypical. We refer to the economic retributions described in proven facts numbers 219) to 241) and which, in a few lines, relate to what was received by [Nombre01 018] through the account of [Nombre01 063] at Banco Internacional de Costa Rica in Miami ($55,584.44, cf. proven facts No. 219 to No. 223); an investment certificate for $50,000 that was given to [Nombre01 018] by [Nombre01 028] and which, according to the proven facts, he asked [Nombre01 158] to deposit into the account of [Nombre01 215] (fact No. 225); and finally, the monies that entered through the bank account of the cited company—[Nombre 215]—in Panama (proven facts No. 224 to 241). This situation, which has no impact on the legal classification, since as indicated above (supra), the trial court convicted for a single crime of illicit enrichment (enriquecimiento ilícito) that was configured from the moment [Nombre01 018] accepted the gifts that were presented to him while he was still a legislator, does have an impact regarding the penalty imposed, since the judgment applied the maximum extreme provided for in the criminal definition (two years of imprisonment), after considering, among other aspects, the total amount received by [Nombre01 018] and not only what was admitted while he held the post of legislator (f. 16,066 front, volume XXXIII). In addition to this, as the appellant denounces in the twelfth ground, the lower court (a quo) also imposed the penalty of disqualification without explaining the reasons for that decision (which is confirmed by a simple reading of the aforementioned folio). In summary and due to the foregoing, the trial judgment remains unscathed insofar as it declared [Nombre01 018] the responsible perpetrator of a single crime of illicit enrichment (enriquecimiento ilícito), clarifying however, that this conviction only concerns the economic retributions admitted by this defendant on January 15 and February 11, both of 2002 (demonstrated facts No. 214 and 216). The judgment is annulled insofar as it imposed on [Nombre01 018] a penalty of two years of imprisonment and disqualification for 12 years from obtaining and exercising public employment, positions, or commissions. The case is remanded to the trial court so that, with a new composition and due substantiation, it may proceed to set the quantum of the corresponding sanction.

XXXI.- Eighth ground. Erroneous assessment of the evidence with violation of the rules of sound criticism, infringing Articles 142, 184, and 369 subsection d) of the CPP. In this section, the appellant points out: “… Recital X-D refers to what it calls the second delivery of the gift to [Nombre01 018]. The majority vote incorporates into its reasoning the thesis that [Nombre01 018] received six investment certificates from [Nombre01 091] through a delivery made by the company [Nombre 058]. Firstly, the error incurred by the Judges must be noted when indicating that it involves six certificates, as they refer to Folio 1579, when in reality there are 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 [Nombre 058] from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. At Folio 1580 the Judges state that these instruments were delivered by the accused [Nombre01 028] to the defendant [Nombre01 018] and that the latter admitted them from the former on February 11, their maturity date, and immediately endorsed and deposited them into his BAC San José account. The Judges refer to evidence 417, which only demonstrates that [Nombre01 018] endorsed the instruments and deposited them into his account, but in no way proves that [Nombre01 028] delivered them to him or the date on which such an event occurred, and this makes the reasoning null for being irrational and contrary to the rules of sound criticism. These are bearer instruments, which circulate through simple delivery and whose transfer occurs without the need for an endorsement on the back of the document, pursuant to Article 712 of the Commercial Code. This is what is called simple tradition and therefore it cannot be recorded who delivered the instrument to its possessor, and that is the meaning of its designation as BEARER. For this reason, the instrument is not replaceable in case of loss, as regulated by numeral 719 of the same Code, since the legitimately possessing person is not recorded. If [Nombre01 028] acquired the instruments issued on January 10, 2002, and endorsements on the back of the documents do not appear, as they cannot appear, and these appear deposited in the account of [Nombre02 018], the only thing demonstrated by this is that the instruments were delivered by someone through simple tradition to [Nombre01 018], but in no way that this person was [Nombre 028], as the Judges adventurously state…” (F. 172,758 to 172,759 front). In the present ground of the appeal, it is affirmed that a month elapsed between the moment [Nombre01 028] withdrew the instruments and the moment they were deposited into the account of [Nombre01 018], so it is possible that the former may have delivered them to any other person, this person in turn to another, and so on, step by step, until reaching [Nombre01 018], without it being possible to presume that [Nombre01 028] gave them to [Nombre01 018]. The judges, in support of their position, cite Article 717 of the Commercial Code, which was repealed since 1990, by Law No. 7201. In any case, this rule stated that the instrument belongs to whoever has it in their possession, which no one has questioned. Equally, that good faith and just title are presumed, as corresponds in application of the principle governing matters of movable property. But from this rule it does not follow that the initial acquirer must be deemed to have delivered the instrument to the depositor. He adds that the judges ignore the basic rules of commercial law when they affirm that "... the absence of a chain of transferors determines that the instrument was transferred from its originator to whoever appears as its holder before the teller or respective official of the banking entity, so that in the specific case, it is inferred that it passed from [Nombre01 028] to [Nombre01 018]". According to the judges, since a chain of transferors cannot be verified, it must be supposed that it is the original acquirer who delivered it to the final possessor. The foregoing is only so in nominative instruments, which are transferred by endorsement and not in bearer instruments, such as those being examined in this case. He adds that in bearer instruments, it is proper for the chain of transferors to be absent, hence what the court misses is what is normally the case in this matter, that is, there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced that [Nombre01 028] was the one who delivered the documents to [Nombre 018]. He adds that another error by the court is to indicate that since the instruments have a legend on the back stating that they can only be deposited into the account of [Nombre01 018], this demonstrates that [Nombre01 028] delivered them. For the appellant, one thing has nothing to do with the other. [Nombre01 018] received the instruments from an undetermined person and endorsed the documents with that legend to deposit them into his account, without this being able to be related to [Nombre01 028]. According to the majority vote, since it was deposited into the same account as other transfers, this leads one to think that [Nombre01 028] delivered them. However, this is nonsense, which would lead to maintaining that every sum that arrived in that account originates from [Nombre01 028]. In synthesis, the conclusion that it was [Nombre01 028] who delivered the instruments to [Nombre01 018] is a biased fabrication, which despises the rules of commercial law and correct human understanding. Since such a situation cannot be proven, the acquisition of the instruments must be considered legitimate and legally correct and, consequently, the conduct of [Nombre01 018] would be unpunishable.

XXXII.- The ground cannot prosper: In the first place, it is important to note that the crime is considered configured from the moment the defendant accepted the first three certificates (Nos. Identificacion18, Identificacion19, and Identificacion20), whereby the appellant's arguments that refer to the second reception of certificates in no way modify what has been decided in the judgment. In the second place, while folio 16,020 front refers to 6 certificates, it is explained with absolute clarity that four of them are those related to [Nombre01 018] (f. 16,021 front), and the error denounced in the appeal is not present. Finally, to refute the court's conclusion that these four certificates were delivered by [Nombre01 028] to [Nombre01 018], the appellant sets aside a series of elements that are analyzed throughout the resolution in an integral and harmonious manner and that allow the cited circumstance to be reasonably held as proven, namely: i) the four certificates were endorsed by [Nombre01 018], making it undeniable that he was their recipient; ii) [Nombre01 018] disposed of the funds, by depositing them into his account and later merging them with the first three certificates he received from [Nombre01 058]; iii) these four certificates have the same characteristics as the three previously received, that is, they originate from Banco Cuscatlán, are to bearer, with a one-month-and-one-day maturity, and [Nombre01 018], in a similar manner, exchanged them and deposited them into his account at Banco San José on February 11, 2002; iv) these certificates originate from an investment purchase for $60,000.00 ordered by [Nombre 028] and which gave rise to a group of 6 certificates, 4 delivered to [Nombre02 018] and 2 to [Nombre 063] (in fact, the two exchanged by [Nombre01 063] are the one preceding and the one closing the numerical series, namely, Nos. 3851 and 3856), which is not a product of chance (f. 16,021 to 16,024 front). For this Chamber, from the above indications (considered integrally) it follows that the certificates were also a gift delivered to [Nombre01 018] and admitted by him when he held the position of legislator. The defense elaborates an entire explanation to try to break the link that connects the certificates to [Nombre01 018], affirming that because they are to bearer, it is impossible to determine that it was [Nombre01 028] and not a third party who delivered them to the defendant. However, this is an overelaborate explanation that starts from a fragmented and biased analysis of the evidence, which in no way conforms to the most elementary rules of common experience. And it is that, once again, these are not certificates whose funds have an unknown origin. Quite the contrary, they are certificates with funds from [Nombre02 060], which were processed by [Nombre 058]., under the same conditions as other gifts delivered in this matter, and even under the same conditions as those certificates that [Nombre 018] had previously received; certificates that are endorsed and disposed of by him, depositing them into his account to later merge them with the funds he had received before, also from [Nombre01 060], via [Nombre 058]. So much so that the defense itself admits this extreme, when trying to justify the receipt of the funds with a supposed consultancy whose existence was justifiably discarded. Added to this, it is not accidental that the payments were made in this manner, since undoubtedly the defendants, among them [Nombre01 018], are the main ones interested in trying to distance themselves from the illicit gains. Finally, for the purpose of establishing that these certificates were delivered to [Nombre01 018] on the occasion of his office, it is a not insignificant indication to consider that the other two certificates—out of a series of six—were exchanged by [Nombre02 063], a person whose connection with [Nombre01 018] is more than demonstrated in the judgment and who was attributed with contacting him with the heads of [Nombre01 091]. In sum, only through a biased and fragmented examination of the evidence, distanced from the most elementary rules of common experience, could the defense's thesis be endorsed, in the sense that since the certificates are to bearer, it is impossible to establish a link between [Nombre01 058] and [Nombre01 018]. It is important to reiterate that although this defendant, after being a legislator in the period from May 1, 1998, to April 30, 2002, held the executive presidency of the Caja Costarricense de Seguro Social (specifically, from May 8, 2002, to April 21, 2004), the acceptance of sums proceeding from [Nombre01 060] when he was in this latter post cannot be considered constitutive of the crime of illicit enrichment (enriquecimiento ilícito) here investigated and judged, since what the criminal definition posits is that the gift be received while occupying the office that motivated its presentation—in this case, that of legislator—and not any other. Abundantly, note that in the accusation a direct relationship is established between the gift and [Nombre01 018]'s condition as a legislator, not so with his condition as executive president of the mentioned autonomous institution, which would also allow discarding any possibility of including within the crime of illicit enrichment (enriquecimiento ilícito) tried here, the gifts he admitted when he held this latter office. For all the foregoing, the criticism is rejected.

XXXIII.- Ninth ground. An repealed criminal definition was applied, in disrespect of Article 369 subsection i) of the CPP. The appellant affirms: “… This representation maintains that 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). Let us remember that the Penal Code entered into force in 1971, in accordance with its Article 406, whereby, by virtue of the principles of legal hermeneutics, in dealing with the same conduct, the later law repeals the earlier one. Numeral 346 that is applied in the case sanctions those who admit gifts in consideration of their office with a prison sentence of six months to two years.

Article 26 of Law 6872 established the crime of illicit enrichment (enriquecimiento ilícito) with a penalty of six months to six years. In principle, it is absurd for two criminal figures with the same designation of typicality to exist in two different legal bodies, which reflects that the tacit legislative intent was to render ineffective the figures in Article 346 of the Criminal Code under the title of illicit enrichment and replace them with those in Article 26 of that law with the same designation. But if it is interpreted that criminal types with the same Nombre01 can exist in two different laws, it is clear that the legislator had two things in mind: to aggravate the penalty, increasing the maximum from two to six years, and to create the figure of sanction when the actions are carried out within the year following the cessation in office, which was not regulated in Article 346. This, in principle, justifies the change in regulation, but there is even more. Subsections a) and c) of Article 26 regulate conducts such as the acquisition of goods of any kind or nature, within which there is evidently the bearer security or cash money or mere enrichment per se, beyond their ordinary remuneration, which is a sort of catch-all or sponge concept that absorbs all receipt of monies or goods not derived from their employment relationship with the State. The acceptance of gifts (dádivas) is a form of enrichment or acquisition of goods, now with a higher maximum penalty and with the incorporation of the punitive rule for the year following the cessation of the service relationship. Therefore, the statement by the Trial Court (Tribunal) that these conducts in numeral 26 are totally different from those in Article 346 is untrue, as it erroneously indicates on folio 1617. In support of our thesis, we must indicate that the Trial Court at no time makes a detailed analysis of the typified conducts to reach its conclusion, beyond listing them and copying them into a neat chart, without any explanation, which it transcribes on folios 1619 to 1622. It does not elaborate on the reasons why it considers these to be different conducts, ... Its error is such that it attributes the approval of subsections a) and c) of Article 26 to the Inter-American Convention against Corruption of the year 1996, when such texts were approved in 1983, THIRTEEN YEARS EARLIER. Again, the carelessness and lack of legal knowledge, which are repeated in the majority judgment. The other argument to sustain the validity of subsection 3) of Article 346 of the Criminal Code is that, according to them, its numbering was modified by Article 185, subsection a) of Law 7732 of December 17, 1997, which transferred it from 344 to 346. This statement is ABSOLUTELY FALSE and again reflects the negligence and carelessness of the Judges. What numeral 185 of Law 7732 does is create two new criminal types, under the figure of Securities Crimes (Delitos Bursátiles), without making any reference to numeral 346 or expressly shifting its numbering, so no one presumed its validity in said Law 7732. They also maintain that Article 69 of Law 8422 of October 6, 2004, recognizes the validity of Article 346 by repealing one of its subsections. What the Judges do not say, because it does not suit them, is that the Constitutional Chamber (Sala Constitucional), in its Ruling 11584-2001 of November 9, 2001, established that some of the subsections of Article 346 had been repealed since Law 6872 of 1983, as has been stated, but that its express verification is the competence of other courts, meaning criminal courts. But the Judges disrespect the Chamber's ruling, as on many other occasions, and ignore it entirely; for them, the entire Article 346 is in force, and they do not even pause to completely omit the constitutional criterion. Even the opinion of this defense regarding the existence of this ruling is cited, but it does not merit the slightest comment from the Judges, possibly because it did not suit their purposes. The important aspect of this 1983 repeal is that then the alleged conducts of [Nombre01 018], which according to the judgment occurred between January 2002 and January 2004, would no longer be regulated by Article 346 of the Criminal Code, but rather by Article 26 of Law 6872. But since subsections a) and c) of that rule were declared unconstitutional by the Constitutional Chamber in ruling 1707-95 at 3:39 p.m. on March 28, 1995, they would not be applicable to the case and the actions of [Nombre01 018] would become atypical. It was 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 during the exercise of office was again typified, which is not applicable to the charged acts as it is a substantive rule in force after those acts, pursuant to Article 11 of the Criminal Code..." (F. 172,760 and 172,761 front). Finally, the appeal adds that the trial court criticized the defense for not citing ruling No. 205-1995 of the Third Chamber (Sala Tercera), with Nombre02 suggesting that what was said in relation to it was an invention, when the truth is that the lower court (a quo) itself mentioned it when explaining that there are subsections of Article 346 of the Criminal Code that were repealed, among them subsection 3), a repeal that came about through Law No. 6872, and Nombre02 requests that it be declared by this Chamber.

**XXXIV.- The ground is not upheld**: The issue in question was also resolved by the Third Chamber, which, in what is relevant, indicated: *"The ground is upheld. The former Article 346 of the 1970 Criminal Code (current Article 353 of the Criminal Code) conceived the criminal type of Illicit Enrichment as residual, insofar as it could only be applied given the legal impossibility of proving other more serious figures against public officials, as deduced from the letter of the rule, which, in what is relevant, stated: 'A public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years: 1) **Accepts a gift (dádiva)** of any kind or the **promise of a gift (dádiva)** to assert the influence derived from their position before another official, so that the latter does or refrains from doing something related to their functions;/2) **Uses for profit for themselves or for a third party** information or data of a reserved nature of which they have become aware by reason of their position;/3) **Admits gifts (dádivas)** that are **presented** or **offered** to them in consideration of their office, while remaining in the exercise of the position; and /4) (REPEALED by Article 69 of Law No. 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 6, 2004). The numbering of this article modified by numeral 185, subsection a), of Law No. 7732 of December 17, 1997, which transferred it from 344 to 346)' (The emphasis is not part of the original). However, with the effectiveness of Law No. 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, the dilemma arose as to whether, with the entry into force of Article 26 of the latter normative body, the aforementioned numeral 346 had been eliminated, since Law 6872 was silent on its validity, or if, on the contrary, they were two rules that complement each other, given that ordinal 32 established, as part of the provisions for the entry into force of the cited Law, the condition that stated: '...It shall be in force upon its publication and repeals and modifies the legal provisions **that oppose it**' (The emphasis is not part of the original), with the full validity of Article 346 having to be understood based on an absence of tacit repeal, which is inferred from the comparison of the criminal actions described in that criminal type with those regulated in rule 26 of Law 6872, to determine their non-regulatory opposition and therefore the parallel subsistence in the Costa Rican legal system. Indeed, for a better understanding, from the following comparative study, it is possible to verify the variety of illicit conducts that both criminal types describe, without being able to infer any opposition between them as the only circumstance in which the tacit repeal contained in numeral 32 of Law 6872 can be applied:

According to the chart above, it is possible to deduce that with Law 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, in force until the enactment of Law 8422, of October 29, two thousand four, the crime of Illicit Enrichment contemplated in the former numeral 346 of the Criminal Code, far from being tacitly repealed, remained in force, as the crime of Illicit Enrichment retained the description of criminal conducts that were not included in Article 26 of Law 6872. Note, verbi gratia, that the typical actions contemplated in the cited numeral 346 included the admission of gifts (dádivas) presented or offered to the public official by reason of their office (Article 346, subsection 3) of the Criminal Code); the acceptance and promise of a gift (dádiva) to assert the influence derived from the official's position (Article 346, subsection 1) of the Criminal Code); and the use for profit for themselves or a third party of information or data of a reserved nature obtained by reason of the performance of public function (Article 346, subsection 3) of the Criminal Code), while the actions contemplated in numeral 26 of Law 6872, Law on Illicit Enrichment of Public Servants of June 17, 1983, apart from increasing the sanction at its maximum extreme and presenting the novelty of being applicable to subjects for whom the service relationship had already ceased in the previous year, presented the description of conducts different from those contained in Article 346 of the Criminal Code, in which the terms promises or presentation of gifts (dádivas) were not used, but rather it involved the prosecution of acts in which public officials had inexplicably improved their economic situation (Article 26, subsection b) of Law 6872); consented to, facilitated, or intervened in any way in the enrichment of a third party, whether a public official or not (Article 26, subsection ch) of Law 6872); in which the Nombre10 Nombre11 granted benefits for their exclusive advantage, or for their relatives up to the second degree of consanguinity or affinity, by dictating laws, decrees, agreements, or resolutions (Article 26, subsection d) of Law 6872); among others. In this way, by not contradicting each other, both rules' described criminal actions remained in force, in accordance with the letter of numeral 32 of the same Law 6872 and the subsequent validity of Articles 69 and 70 of Law 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 29, 2004, which upon their entry into force expressly repealed only subsection 4 of the aforementioned Article 346 (Article 69 of Law 8422) and the Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983 (Article 70 of Law 8422), it being that in said repeal, Article 26 of Law 6872 must have been understood to be included, which proves that the legislator also recognized their simultaneous validity in our legal system and therefore had to decree the repeal of subsection four of the former Article 346 and of Article 26 of Law 6872 in its entirety. On this last subject, it must be recognized - as the majority vote of judgment 167-2011 did in its time - that this Third Chamber, in ruling 205-F-1995, at nine o'clock, on April seventh, nineteen ninety-five, implicitly recognized the validity of subsection 2) of the former Article 346 of the Criminal Code, when it reclassified the proven acts of extortion (concusión) to the crime of Illicit Enrichment in a case brought to its attention, despite the fact that Law 6872 had already entered into force at that time. Likewise, that with the reform to the former Article 346 of the Criminal Code, introduced in 2004 with Law 8422, subsections 1), 2), and 3) of said rule were not tacitly or expressly repealed, since ordinals 69 and 70 of the mentioned law only expressly repealed the fourth subsection of that numeral and Law 6872 in its entirety, with the cited subsections 1), 2), and 3) having to be understood from the literal wording of both rules as being in force: 'Article 69.- **Repeal of subsection 4) of Article 346 of the Criminal Code**. Subsection 4) of Article 346 of the Criminal Code is hereby repealed. Article 70.- **Repeal of Law No. 6872**. The Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983, is hereby repealed. (The emphasis is part of the original).

See, in the same vein, Legal Opinion 018-J-2000, of February seventeenth, two thousand, from the Office of the Attorney General of the Republic, in which, regarding the bill for the Law against Corruption and Illicit Enrichment, which was being heard by the Permanent Commission on Government and Administration, it was also established: “…</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">16.- On the crimes</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">: </span><span style=\"font-family:Arial; font-style:italic\">Through Chapter V of the Bill called "On the crimes", a series of criminal types are created whose common denominator is the fight against corruption, recreating a wide range of circumstances to which the official or public servant is commonly subjected./ It also provides for the total repeal of the Law on Illicit Enrichment of Public Servants (No. 6872), </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">which contains a series of criminal types similar to those proposed in the bill; but it must be noted that certain offenses that are similar to those intended to be incorporated remain in force within the Criminal Code</span><span style=\"font-family:Arial; font-style:italic\">…” (The emphasis is ours).” Furthermore, it must be pointed out that the scope that the Court of Appeal grants to ruling 2001-11584, of eight hours and fifty-three minutes, of November ninth, two thousand one, from the Constitutional Chamber, in order to not apply the former rule 346 of the Criminal Code, does not derive from the text of the aforementioned judgment, since in it, regarding the argument of tacit repeal of the cited article 346, used by the consulting legislators, it was established: “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Tacit repeal of article 346 of the Criminal Code. </span><span style=\"font-family:Arial; font-style:italic\">Finally, article 68 of the bill is consulted, because that numeral introduces confusion related to the principle of legal certainty. The rule assumes the validity of the subsections it does not repeal, notwithstanding that with the enactment of Law No. 6872 of June 17, 1983, "Law on Illicit Enrichment of Public Servants," the legislator had already ordered the repeal in article 32 of that law. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">For the consulting parties, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are violated. Certainly, the provisions opposing Law number 6872 of June 17, 1983 were repealed according to the provisions of its article 32, but verifying which provisions were affected and whether they included subsection 4) of article 346, now repealed by article 68 of the consulted bill, is not a question of constitutionality on which this court must render its opinion</span><span style=\"font-family:Arial; font-style:italic\">…” That is, that judicial body recognized the power of interpretation of the validity of such subsections as a discretionary power of the Judges, who, through the study of both regulatory bodies, could determine whether they contradicted each other, since if those alleged contradictions were not verified, the rule of the former 346, with the exception of the fourth subsection, remained in force. It is noticeable in the reasoning of the second instance that the Judges determined the non-validity of the rule based on alleged incompatibilities between both articles, although without specifically determining what the contradictions were or contrasting both rules in their study, as the Trial Court did in its day in the case sub judice,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> from folios 000016061 to 00016063 of volume XXXII of the case file. In sum, upon verifying in this specific case the defect of erroneous application of former article 346 of the Criminal Code, it is appropriate to annul the sentence, regarding the accused [Nombre01 018], and remand the present process to the Court of Appeal of Sentence, so that with a new composition, it may proceed according to the applicable law.” </span><span style=\"font-family:Arial\">As can be observed, the validity of article 346, subsection 3) of the Criminal Code is an issue that was expressly decided by the Third Chamber, concluding that the trial court did not make an error in concluding that this rule was applicable to the case under review. It is a position that the undersigned must abide by when resolving the remand, but which in any case they also share, since the scope of application of 346 subsection 3) of the Criminal Code and the referred numeral 26 do not coincide in their content. While the former contemplates the acceptance of a gift given or offered in consideration of the public official’s office during the exercise of the position, article 26 mentioned criminalized something different, namely, a patrimonial increase whose licit origin the public official could not prove. Thus, subsection a) of numeral 26 contemplated the acquisition of goods of any kind or nature without being able to prove their licit origin, and subsection c), enrichment in any way, as an exclusive consequence of the office, without accrediting the legality of the fortune increase and the plausibility of the invoked sources of resources. Whereas in art. 346 subsection 3) of the Criminal Code, the action is circumscribed to the acceptance of the retribution or the promise thereof under certain circumstances (in consideration of the office and during the performance thereof), it even being plausible that the material receipt of the gift constitutes a later unpunishable act (this is the case of the acceptance of the offered gift), in art. 26 what is criminalized is the enrichment that actually took place, </span><span style=\"font-family:Arial; text-decoration:underline\">where the determining factor is the impossibility of the public official to demonstrate the legitimate origin of the patrimonial increase experienced</span><span style=\"font-family:Arial\">. Even though subsection c) speaks of enrichment as an </span><span style=\"font-family:Arial; font-style:italic\">“exclusive consequence of the office”</span><span style=\"font-family:Arial\">, it is enough to read the complete subsection to conclude that it contains a legal presumption, according to which all of the public official's assets that they cannot justify, will be considered obtained on the occasion of the office held. In other words, in this scenario the typical action is not to use the office to enrich oneself, but to increase assets without any justification, a hypothesis that, besides being clearly unconstitutional, excludes the one provided for in numeral 346 subsection 3) of the C.P. For the foregoing, the ground is declared without merit.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">XXXV.- Tenth ground. Numeral 346 subsection 3) of the Criminal Code was applied in violation of the binding interpretation of the Constitutional Chamber, in disrespect of article 13 of the Law of Constitutional Jurisdiction and subsections i) and j) of article 369 of the C.P.P</span><span style=\"font-family:Arial\">. In this section, the challenger asserts: “ </span><span style=\"font-family:Arial; font-style:italic\">The majority Judges consider that [Nombre01 018] received a gift by virtue of his office and that this is punishable based on Article 346 subsection 3) of the Criminal Code regardless of whether or not he carried out any work for the benefit of his alleged payer. If Article 346 subsection 3) of the Criminal Code is considered to be in force at the date of the facts, the rule must be interpreted in accordance with what the Constitutional Chamber has ordered, in full respect for the binding nature of precedents indicated by Article 13 of the Law of Constitutional Jurisdiction. The way in which that subsection 3) is drafted reflects that any gift given or offered in consideration of the official's office becomes illicit, even if the official has not carried out any licit or illicit action, proper or contrary to their functions. The mere receipt of the gift is already criminal. The Constitutional Chamber, since the cited ruling 1707-95, in its Considerando III, indicated 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 oblige the accused to prove its legality. For this, the Chamber relied on what was explained in Ruling 5171-93 and upheld it without any doubt, which is why it declared the rules of Law 6872 that had replaced the crime of illicit enrichment unconstitutional. But even clearer was the Constitutional Chamber in its Ruling 11584-01 of 8:53 a.m. on November 9, 2001, when it heard, through an optional legislative consultation, the bill for the Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber states, in the writing of Magistrate Nombre33, 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 obliging them to prove the origin of their goods. This is important since, in the Chamber's words, it is not enough that the official receives goods that increase their assets, nor that this is demonstrated; it is necessary that this increase comes from an illicit activity, which cannot be the mere receipt but something more, since otherwise, the accused would have to demonstrate the origin of their increase, in violation of the prohibition against reversing the burden of proof. This doctrine is fully applicable to the case file, since in this case the criminal type of Article 346 subsection 3) penalizes the mere receipt of gifts without the need for the prosecuting body to prove the illicit activity that motivates that receipt, with which the accused, in their defense, must prove the origin of those funds, in violation of the exposed constitutional principles</span><span style=\"font-family:Arial\">…” (F. 172,761 and 172,762 recto). He reproaches the court for not applying the </span><span style=\"font-family:Arial; font-style:italic\">“doctrine”</span><span style=\"font-family:Arial\"> previously referred to, despite having been so requested. The interpretation made of the mentioned article 346, on the contrary, opposes the Political Constitution and is null, for contravening article 13 of the Law of Constitutional Jurisdiction.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">XXXVI.- The claim is not admissible: </span><span style=\"font-family:Arial\">Contrary to what the appellant asserts, in the process examined here the burden of proof has not been reversed. Note that the requesting body, with abundant evidentiary elements, managed to demonstrate that the gift that the accused [Nombre01 018] received during the months of January and February 2002 was given to him due to his status as a deputy and member of the commission responsible for the telecommunications topic; that it came from the company [Nombre 091] (a provider in that field) and, above all, that this economic retribution was accepted by [Nombre01 018] during the performance of that public office. Likewise, the trial court discarded, in adherence to the rules of sound criticism, the defense's thesis of the defendant, which argued that the money was obtained for having provided consultancy services to [Nombre01 091]: </span><span style=\"font-family:Arial; font-style:italic\">“Up to this point, it is thus evident that the accused [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">was serving as a deputy of the Legislative Assembly and that, by virtue of that condition, the initial approach by representatives of [Nombre01 091] took place, with the purpose of shaping his opinion on the topic of direct contracting at ICE, since the company [Nombre 091] considered that it caused their exclusion from the market. It is worth noting, at once, that the legal representative of the defendant, (who did not declare, as is his right), has maintained that [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">provided a consultancy service</span><span style=\"font-family:Arial; font-style:italic\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">to the company [Nombre01 091], and that his status as deputy does not entail a recognized prohibition from providing said professional service</span><span style=\"font-family:Arial; font-style:italic\">. From such argumentation, it is important to highlight, in the first place, how –implicitly– the defense of [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">acknowledges as true the accusation regarding the receipt of money coming from [Nombre01 060]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">via [Nombre01 058] and that the only thing it rejects is that it was by way of a gift, as it maintains that what was received was remuneration for the provision of such services. Among the witnesses appearing at the trial with a similar trajectory in the Legislative Assembly, Messrs. [Nombre01 249], [Nombre01 250], and [Nombre01 251]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, among others, all agreed in more or less similar terms that deputies do not have a recognized prohibition and that, in fact, some simultaneously practice liberal professions. However, as will be analyzed throughout this Considerando, the evidence produced completely determines the opposite, that is, that the money received was not for a professional consultancy nor anything resembling it, but was simply and plainly given as a gift, which was furthermore received and taken advantage of by [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. Therefore, even if the accused [Nombre01 018] had denied it –which, as stated, he implicitly does not do, because by indicating it was for a different reason, he admits the receipt of the money– the accumulation of evidence confirms that [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">received the cited money coming from [Nombre01 060] as a result of a gift and not as payment for legal remuneration. Hence, it is irrelevant whether some of the witnesses mentioned the legal possibility for the deputy to practice a liberal profession or to engage in activities other than the deputy function simultaneously. The foregoing, because that is a statement by the witnesses on a theoretical level, but they do not account for what happened in the concrete reality of [Nombre01 018], which reflects something quite different from the theory. Expert witness Nombre97 stated that from the analysis of the banking documentation, it cannot be derived that on the date of these facts [Nombre01 063] was a legislative advisor, nor was it established that [Nombre01 018] was an advisor to [Nombre01 091], or had any commercial or labor relationship with [Nombre 058]. Note that, furthermore, [Nombre02 091] already had a political strategist and, according to the assessments and recommendations that [Nombre01 124]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">had made, key actors in certain sectors had been approached, which, in practice, initially legal, finally resulted in the payment of such officials, among them [Nombre01 063]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">and [Nombre01 018]. There is also no reference to the existence of the alleged consultancy, but rather evidence to the contrary. Apart from what has been said, note that in the company [Nombre 091 252]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">stated that all consultancies were done in writing and were documented in the company, and that is why a verbal contract was not appropriate when more than $700 thousand are paid; he never saw a consultancy contract nor approved the delivery of this money. He pointed out that all consultancy contracts for more than $10 thousand went through his hands and this did not happen. Also, [Nombre01 128], [Nombre01 132], and [Nombre01 111] indicated that the only advisor or political strategist was [Nombre01 124]. Witness [Nombre01 111] added that she was involved in the entire contracting process for the 400,000 cellular lines and never saw [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, nor heard of an advisor with that name, nor that he had worked for the company [Nombre01 091]. On the other hand, [Nombre01 158], his friend of many years, neither saw him nor heard about such consultancy, but only saw him attending his clientele in his private practice. On the contrary, the version that [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">gave to [Nombre01 158] is that he made some money with [Nombre01 091] in an easy way since he did nothing. With the cited body of evidence, while it is possible to affirm that the provision of professional services or other paid work is not incompatible with the office of deputy, since no payment of prohibition is recognized for holding this office, the truth is that it is clear to the court that [Nombre01 018] did not act, under any circumstance, as an advisor to [Nombre01 091] and that the money received from said company was as a gift on the occasion of his status as deputy, which are two different things. Other reasons support the previous consideration: [Nombre01 142] says that [Nombre01 041] stated to the media that he gave gifts to public officials; [Nombre01 116]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">also points out that spontaneously [Nombre01 041] indicated that he paid bribes to public officials and among them mentioned [Nombre01 018] and adds a fundamental aspect in the sense that [Nombre01 041] made such a revelation even before that information was revealed in the national press… Likewise, in the contracting rules of [Nombre01 091]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">there is a prohibition for those who act as advisors to be public officials; it is expressly indicated that public officials cannot be consulting agents. Finally, when the scandal breaks, [Nombre01 158] relates that he talks with [Nombre01 018], who had previously told him that the money came from the sale of a property in Jacob </span><span style=\"font-family:Arial\">(sic), </span><span style=\"font-family:Arial; font-style:italic\">but that at that moment he confesses that the money does not come from the sale of said property, but from the offer of [Nombre01 041] for a consultancy that he had carried out with [Nombre01 091] so that it would win the cell phone bid, that [Nombre02 063]</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> is an ICE engineer who had helped him for this, and that SNQC was the means channeled for the delivery of the money. It can be seen that in [Nombre01 018]'s narrative, although he maintains that the money was due to performing a consultancy, he also partially acknowledges that the receipt of money is related to his intervention in a cell phone bid, a final circumstance –as stated– that can be clearly deduced from the evidence; however, regarding the provision of the consultancy, it has already been extensively explained why this is a version discarded by this jurisdictional body.” </span><span style=\"font-family:Arial\">(Cfr. f. 16,001 to 16,004 recto). Faced with this panorama, it is completely unfounded to assert that the trial court reversed the burden of proof, requiring [Nombre01 018] to demonstrate the licit nature of the funds. Quite the contrary, their irregular origin was duly accredited through abundant circumstantial evidence described in the previous considerandos (to which the appellant must refer), circumstantial evidence that, simultaneously, also allowed the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> to discard the thesis that the income was payment for a consultancy. Finally, it is important to underline that [Nombre01 018] was not reproached for increasing his assets in an unjustified or suspicious manner (which would clearly be unconstitutional for placing the public servant in the situation of having to prove the licit origin of their goods). In reality, he was sanctioned for admitting or accepting gifts that were given to him by the top executives of [Nombre01 091] by virtue of his status as deputy and, more specifically, for his role in the commission related to the matter of telecommunications, all of which occurred while he held that office. This also allows for marking a substantial difference from the scenario analyzed by the Constitutional Chamber in resolution No. 2001-11584 cited by the appellant, since what was being weighed there was the constitutionality of a bill where, indeed, the possession by the public official of goods in an unjustified manner, that is, without accounting for their origin, was being criminalized. On that occasion, the Constitutional Chamber pointed out: </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">“I.- </span><span style=\"font-family:Arial; font-style:italic\">In accordance with the provisions of article 96 subsection b) of the Law of Constitutional Jurisdiction, this is an optional consultation filed by ten Deputies, therefore this Chamber shall review only the specific points questioned by the consulting parties in a concrete manner and not general aspects of constitutionality of the Law containing the challenged rule, as provided by article 99 of the law governing this jurisdiction. In that sense, subsection c) of article 45 of the consulted bill is excluded from this court's analysis, since the consulting parties did not clearly state the reasons for having doubts or objections regarding its constitutionality. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">II.- On the content of the questioned rules. </span><span style=\"font-family:Arial; font-style:italic\">The consulted rules are the following:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">"Article 45.- </span><span style=\"font-family:Arial; font-style:italic\">Illicit enrichment.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">A person who, after assuming a public office, or one who, with powers of use, custody, administration, or exploitation of public funds, services, or goods, under any title or management modality, is found to have committed the following shall incur the crime of illicit enrichment and shall be punished with imprisonment from one to eight years:</span></p><p style=\"margin-top:0pt; margin-left:42.8pt; margin-bottom:0pt; text-indent:-18pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">a.</span><span style=\"line-height:150%; font-size:7pt\"> </span><span style=\"font-family:Arial; font-style:italic\">Is in possession of goods or enjoying rights, directly or through an intermediary natural or legal person, whose value exceeds their legitimate and normal economic possibilities, those of their spouse, partner, siblings, and other relatives up to the third degree of consanguinity or affinity. </span></p><p style=\"margin-top:0pt; margin-left:42.8pt; margin-bottom:0pt; text-indent:-18pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">b.</span><span style=\"line-height:150%; font-size:7pt\"> </span><span style=\"font-family:Arial; font-style:italic\">Has canceled debts or extinguished obligations affecting their assets, those of their spouse, partner, siblings, and other relatives up to the third degree of consanguinity or affinity, in terms and conditions that exceed their legitimate and normal economic possibilities and those of the indicated relatives. </span></p><p style=\"margin-top:0pt; margin-left:42.8pt; margin-bottom:0pt; text-indent:-18pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">c.</span><span style=\"line-height:150%; font-size:7pt\">&#xa0;</span><span style=\"line-height:150%; font-size:7pt\"> </span><span style=\"font-family:Arial; font-style:italic\">Consents to, facilitates, or conceals as an intermediary person, the illicit enrichment of another, in the terms and scope of the previous subsections" </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">"Article 46.- </span><span style=\"font-family:Arial; font-style:italic\">Illicit enrichment of relatives</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">A person who, being the spouse, partner, or relative up to the second degree of consanguinity of a public official, is found to have increased their assets, in the terms indicated in the previous article, shall be punished with imprisonment from one to eight years."</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">"Article 68.- </span><span style=\"font-family:Arial; font-style:italic\">Repeal of subsection 4) of article 346 of the Criminal Code</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-style:italic\">Subsection 4) of article 346 of the Criminal Code is hereby repealed."</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">III.- On the principle of criminal typicality</span><span style=\"font-family:Arial; font-style:italic\">. It is stated in the consultation, and this court renders its opinion on these rules, that articles 45 subsections a) and b) and 46 of the bill do not correctly typify the conduct intended to be punished as a crime. For the consulting parties, the phrase in subsection a) of article 45, "</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Is in possession of goods or enjoying rights</span><span style=\"font-family:Arial; font-style:italic\">," does not refer to an action but to a state. Likewise, the phrases </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">"whose value exceeds their legitimate and normal possibilities"</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">and </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">"in terms and conditions that exceed their legitimate and normal economic possibilities"</span><span style=\"font-family:Arial; font-style:italic\"> set forth in both subsections contain indeterminate economic concepts that prevent the judge from relying on objective criteria and hinder the understanding of the rule. These defects also appear in article 46, by sanctioning the spouse, partner, or relative up to the second degree of consanguinity of a public official who has been found to have increased their assets through the judge's application of indeterminate economic concepts. The Chamber has referred to the principle of typicality in criminal matters on various occasions.

In the judgment of sixteen hours twenty minutes of January fifteenth, nineteen ninety-one, it stated: </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">"Criminal definitions (tipos penales) must be structured basically as a conditional proposition, consisting of a premise (description of the conduct) and a penal consequence; the former must necessarily indicate, at least, who the active subject is, since in specific offenses (delitos propios) they meet certain conditions (nationality, public employee status, etc.) and what the action constituting the infraction is (active verb); without these two basic elements (there are other accessory ones that may or may not be present in the typical description of the act) it can be assured that there is no criminal definition. From all the foregoing, it can be concluded that there is a legislative obligation, so that the definition of the offense (tipicidad) constitutes a true citizen guarantee, characteristic of a democratic state of law, to use legislative techniques that allow the correct definition as a crime of the conducts it intends to repress, because the absolute effectiveness of the principle of reservation, which as indicated is established in Article 39 of the Constitution, only occurs in cases where the judge's activity is linked to the law, and it is clear that this is in turn entirely related to the greater or lesser degree of concreteness and clarity achieved by the legislator. The necessary use of language and its restrictions means that in some cases the same level of precision cannot be achieved; not for that reason can it be considered that the description presents constitutional problems in relation to the definition of the offense (tipicidad); establishing the limit of generalization or concreteness required by the principle of legality must be done in each particular case." </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">Also in judgment number 3625-93 of fifteen hours twenty-one minutes of July twenty-eighth, nineteen ninety-three, in relation to the definition of the offense (tipicidad), the Chamber expressed:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">"The consultation under study involves, as fundamental themes, the principle of definition of the offense (tipicidad) and that of prejudiciality in criminal matters. In relation to the first, it is important to previously analyze the principle of legality in criminal matters. The principle of legality in general is what defines the investiture, competence, and attributions of public authorities and circumscribes them to a framework of constitutionality and legality, outside of which they would become illegitimate and arbitrary. This principle, together with the general right to justice, constitutes essential presuppositions of due process, whose absence or violation entails transgressions of a constitutional order. Among its most important corollaries is the principle of reservation of law, which in criminal matters acquires specific characteristics due to the necessary prior and clear definition of the actions that constitute a crime, with the object of safeguarding the legal certainty of citizens. Article 39 of the Political Constitution enshrines, among others, this principle which in criminal matters means that the law is the only creative source of crimes and penalties. This guarantee is directly related to the definition of the offense (tipicidad), which is an essential presupposition for considering the repressive activity of the State as legitimate and in turn determines that criminally relevant conducts are individualized as prohibited by a norm or criminal definition (tipo penal). The definition of the offense (tipicidad) guarantees that no human action can constitute a crime unless it is defined as such by a prior law issued by the competent body."</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">In the case of Article 45 subsections a), regarding the definition of the offense (tipicidad), the criminal definition (tipo penal) is defective, because the legislator failed to endow it with the necessary concreteness and clarity, according to the transcribed jurisprudential guidelines. The action constituting the infraction is not described, that is, the verb is not stated. Criminal definitions (tipos penales) are those norms that are directed at a specific person and correspondingly formulate the conduct that must be avoided. Through them, legally protected interests (bienes jurídicos) of relevance to society are protected and at the same time they limit the fundamental rights of the active subject, in most cases personal freedom, for which they must be constructed with great rigidity. The phrase "is in possession of assets" does not describe the actions of the subject to whom the conduct being repressed is directed, which defers or transfers to the judge the task of configuring which actions are punishable, something that actually corresponds to the legislator. Now then, both in subsection a) and in b) of the cited article, it is said that they contain indeterminate concepts and consequently produce a violation of the guarantee of definition of the offense (tipicidad). The phrase "</span><span style="font-family:Arial; font-weight:bold; font-style:italic">in terms and conditions that exceed their legitimate and normal economic possibilities" </span><span style="font-family:Arial; font-style:italic">due to its lack of definition and technical imprecision leaves open the possibility that these "terms and conditions" may be supplied by the judge, Nombre02 such as the words "legitimate and normal economic possibilities," because it is not sufficient to reproach the active subject for the patrimonial increase unless it is related to the work of the public official. Also in the case of Article 46, an infraction of the principle of definition of the offense (tipicidad) occurs, because it is intended to penalize the relative of the public official for the mere fact of increasing their patrimony without any action to achieve that result being described, and with the same degree of imprecision as subsections a) and b) of Article 45 because it refers to them. The defects noted in the wording of the consulted articles affect the guarantee implied by the constitutional principle of definition of the offense (tipicidad) in criminal matters.</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">IV.- Of the principle of innocence. </span><span style="font-family:Arial; font-style:italic">The consulting parties also consider that there is a violation of the principle of innocence, in its modality of the burden of proof, according to which it corresponds to the Public Ministry to demonstrate the facts attributed to the accused. The deputies making the consultation base the judgment of unconstitutionality on the fact that Articles 45 and 46 of the bill oblige the accused to have to demonstrate ex officio the source of their wealth to prove their innocence. On the subject, the Chamber has already indicated on various occasions:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">"</span><span style="font-family:Arial; font-weight:bold; font-style:italic">E) THE PRINCIPLE OF INNOCENCE:</span><span style="font-family:Arial; font-style:italic"> Like the previous ones, it derives from Article 39 of the Constitution, insofar as it requires the necessary demonstration of guilt. No person can be considered or treated as guilty while there is no firm conclusive sentence against them, issued in a regular and legal process that declares them as such after that presumption has been destroyed or overcome.</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">Furthermore, by virtue of the state of innocence of the accused, it is not he who must prove his lack of guilt, but the prosecuting bodies..." (Judgment number 1739-92 of 11:45 hours on July 1, 1992)</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">In another resolution, it established:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">"The Chamber considers that the principle of innocence protected by Article 39 of the Constitution requires the full demonstration of guilt of the accused, beyond any reasonable doubt. Consequently, if a sentence has been issued against the appellant without having reached this state of conviction, the sentence would have violated their right to due process in its substantial element..." (Judgment number 4700-93 of 15:51 hours on September 28, 1993. In the same sense, judgment number 4784-93 of 8:36 hours on September 30, 1993).</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">In similar terms, judgment number 6660-93 of 9:33 hours on December 17, 1993, states:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">"Taking into account, in addition, the principle of innocence (no person can be considered or treated as guilty while there is no firm conclusive sentence against them, issued in a regular and legal process that declares them as such), from which we can extract the principle of the burden of proof that governs our criminal matter, according to which, it corresponds to the Public Ministry (as the body that holds the monopoly of criminal action), to reliably demonstrate in the process, the facts attributed to the accused, thus excluding by virtue of the state of innocence of the accused, the duty of the accused to prove their lack of guilt, it can be affirmed that if it is proven that any of these aspects has been ignored by the corresponding jurisdictional body, there could then be a violation of the principle of due process and right of defense."</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">From the foregoing, it can be concluded that the demonstration of guilt, through the burden of proof, is the exclusive task of the Public Ministry and therefore, it is the obligation of the legislator to use techniques that allow the prosecuting body to comply with that constitutional guarantee. In the bill under consultation, although the legislator inserted phrases such as "it is proven to him that," the lack of a correct definition of the offense (tipificación) in the crime intended to be repressed means that the presumption of innocence is reversed and by the mere fact that the active subject remains in possession of assets or increases their patrimony they will be punished, without demonstrating that this increase in their patrimony has a nexus with the illicit activity of the public official, which consequently forces the accused to demonstrate the origin of their assets, thereby flagrantly violating the principle of innocence.</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">V.- Tacit repeal of Article 346 of the Penal Code. </span><span style="font-family:Arial; font-style:italic">Finally, Article 68 of the bill is consulted, on the grounds that said numeral introduces confusion related to the principle of legal certainty. The norm takes for granted the validity of the subsections it does not repeal, notwithstanding that with the enactment of Law No. 6872 of June 17, 1983 "Ley de Enriquecimiento Ilícito de los Servidores Públicos," the legislator had already ordered the repeal in Article 32 of that law. For the consulting parties, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are broken. Certainly, the provisions that oppose Law number 6872 of June 17, 1983, were repealed as provided in its Article 32, but the verification of which provisions it affected and whether they included subsection 4) of Article 346, now repealed by Article 68 of the consulted bill, is not a matter of constitutionality on which this court must render its opinion.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%"><span style="font-family:Arial; font-weight:bold; font-style:italic">Por tanto:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-style:italic">The optional legislative consultation on the bill for the "Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública," legislative file number 13,715, is answered in the sense that Articles 45 subsections a) and b) and 46 are unconstitutional. The consultation is inadmissible regarding subsection c) of Article 45 and regarding the effects or possible interpretations of the repeal of subsection 4) of Article 346 of the Penal Code, contained in Article 68 of the bill." </span><span style="font-family:Arial">(Constitutional Chamber, resolution N° 2001-11584 of 8:53 hours on November 9, 2001). As observed, while in the bill examined by the Constitutional Chamber what was intended to be defined as a crime was the unjustified patrimonial increase, obliging Nombre02 the public official to demonstrate the lawful origin of their assets since, otherwise, they would lose their patrimony, in the applied Article 346 subsection 3) of the Penal Code a more concrete conduct is foreseen, namely, admitting a gift that was not presented by chance or casualty, but that was given </span><span style="font-family:Arial; font-style:italic">on the occasion of the position they hold</span><span style="font-family:Arial"> and </span><span style="font-family:Arial; font-style:italic">during the exercise of it</span><span style="font-family:Arial">. This is a conduct that certainly violates the protected legally protected interest (bien jurídico), the foregoing insofar as the public official, who should act apart from any economic interest, or at most apart from any interest that is different from those of the institution itself in which they serve and for which they must watch, Nombre11 within the provisions of the legislation, uses their condition to obtain a </span><span style="font-family:Arial; font-style:italic">personal profit (lucro personal)</span><span style="font-family:Arial">. For all the foregoing, the ground is rejected.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXVII.- Thirteenth ground. The norms relating to confiscation (comiso) of Article 110 of the Penal Code are unduly applied by ordering that certificate number 62445223, renewed in 62736757, be transferred to the State, without any basis or reasoning, also infringing Articles 142, 184, and 369 subsection e) of the C.P.P.</span><span style="font-family:Arial"> Upon ordering the confiscation (comiso), a certificate of term deposit with number 62736757 is included in point 9, which is neither described nor is its nature and reason indicated. The court indicates that the effects of the crime, the means or instruments used in its preparation and execution, and the profits derived from its commission are confiscated, which is nothing more than the reiteration of what is indicated by Article 110 of the Penal Code. Then, this is ordered, without substantiating whether each of the assets </span><span style="font-family:Arial; font-style:italic">“… are means or instruments with which the crime was committed, effects of it, or profits derived from its commission nor why this is so...” </span><span style="font-family:Arial">(F. 172,765 front). Regarding the confiscation (comiso) of the certificate, the reasons for this decision are not indicated, which makes the ruling null, for being unfounded. It is not explained if it is an instrument of the crime, an effect, or profit derived from it, so it is impossible to know the court's motivations. Given this panorama, the proper course is to annul the decision of the majority judges and resolve that this confiscation (comiso) is inadmissible, ordering the return of the corresponding sum to its legitimate owner. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%; font-size:15pt"><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold">XXXVIII.- </span><span style="line-height:150%; font-family:Arial; font-size:12pt">Although for different reasons,</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold"> the claim is declared with merit</span><span style="line-height:150%; font-family:Arial; font-size:12pt">: Before examining the particular case, it is important to make some general considerations in relation to Article 110 of the Penal Code. According to this norm, confiscation (comiso) produces the loss in favor of the State of </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">the instruments</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> with which the crime was committed, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">of the things or values originating from its realization,</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> or that constitute for the agent </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a derived benefit (provecho)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> from the same crime. We speak of a confiscation (comiso) that, as happens in other legal systems such as the German or Spanish, is projected over three categories of assets, namely, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">the instruments, the effects, and the profits of the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">The instruments</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> are, in short,</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic"> “…the tools or means used for the execution of the criminal act”</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> (Nombre98, Josep Miquel; Nombre99. “Título VI. De las consecuencias accesorias.” In: Nombre100 (Dir.); Nombre12 (Coord.). </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Comentarios al Nuevo Código Penal.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Navarra, Editorial ARANZADI, S.A., 3rd edition, 2004, p. 649)</span><span style="line-height:150%; font-family:Arial; font-size:10pt; vertical-align:super">. </span><span style="line-height:150%; font-family:Arial; font-size:12pt">We speak for example, of </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“… the tools to commit robbery or falsification, the weapons used in the holdup, the capital with which the drug trafficking business is set up, the motor vehicle used for smuggling or to transport the victim who will later be raped…” (</span><span style="line-height:150%; font-family:Arial; font-size:12pt">Nombre101. “Notas sobre el comiso y la propiedad de terceros.” In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Actualidad Penal. Revista semanal técnico-jurídica de Derecho penal. </span><span style="line-height:150%; font-family:Arial; font-size:12pt">Madrid, La Ley-Actualidad S.Nombre13., N° 24, week of June 9 to 15, 1997, p. 523). Regarding the terms </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">things or values</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, greater precisions must be made. The </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">thing (cosa)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, which comes from the Latin </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">causa</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, according to the Diccionario de la Lengua Española is </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">everything that has entity, whether corporeal or spiritual, natural or artificial, real or abstract</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Although it is also defined as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a material object as opposed to the rights created over it and to personal services, </span><span style="line-height:150%; font-family:Arial; font-size:12pt">it is no less true that it is considered a synonym for the term </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">good (bien)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> and this is understood as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">material or immaterial things insofar as objects of law.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Said in other words, with the term </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">things (cosas)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> the Costa Rican legislator does not only allude to corporeal things, but also to immaterial ones. The </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">value (valor)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> for its part, alludes to the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">quality of things, by virtue of which a certain sum of money or equivalent is given for possessing them</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, or to the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">quality possessed by some realities, considered goods (bienes), by which they are estimable.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Nombre02 thus, we understand by </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">value (valor)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> any economically estimable good. Article 110 of the Penal Code foresees the confiscation (comiso) of the things or values </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">originating from the realization of the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. With this expression, it alludes to what in doctrine is known as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">producta sceleris</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> in the strict sense, that is, the goods </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">produced, transformed, or manipulated</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> from the very conduct constituting the infraction, v.g., the falsified document or money, or the drug when it results from the criminal mechanics itself (thus, Nombre101, “Notas sobre el comiso y la propiedad de terceros.”, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">op. cit., </span><span style="line-height:150%; font-family:Arial; font-size:12pt">p. 524; Nombre101. "\"Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.\" In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Documentación Jurídica. Monográfico dedicado a la propuesta de anteproyecto del Nuevo Código Penal</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Madrid, Gabinete de Documentación y Publicaciones, Secretaría General Técnica, Ministerio de Justicia, Volume 1, January/December, 37/40, 1983, p. 246 and Nombre102 (Coord.); Nombre14, Nombre103; Nombre15, Nombre16. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Las consecuencias jurídicas del delito en el nuevo Código Penal español. El sistema de penas, medidas de seguridad, consecuencias accesorias y responsabilidad civil derivada del delito.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Valencia, Tirant lo Blanch, 1996, pp. 450-451). Finally, the Costa Rican legislator also contemplated the confiscation (comiso) of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">benefit (provecho) of the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. This term, coming from the Latin </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">profectus</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, is defined by the Real Academia Española as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">benefit or utility that is achieved or originates from something or by some means</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. The benefit of which it is a synonym, is defined in turn as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">economic profit obtained from a business, investment, or other commercial activity.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Equally, utility is the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">benefit (provecho), convenience, interest, or fruit obtained from something. </span><span style="line-height:150%; font-family:Arial; font-size:12pt">In summary, when speaking of the benefit (provecho), it concerns the profits derived from the crime. Another extreme to consider is </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">the presupposition of confiscation (comiso)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. According to the general rule foreseen in Article 110, confiscation (comiso) is linked </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">to the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Confiscation (comiso) is a consequence of this and not, for example, of the commission of an act that although typical, does not meet other requirements, such as unlawfulness (antijuricidad) or guilt (culpabilidad). A crime, from a technical dimension, must be understood as typical, unlawful (antijurídica), and guilty (culpable) conduct and not as a simple legislative provision independent of a declaration of responsibility in a specific case, because Nombre02 it is inferred from Article 103 of the Penal Code that, in what is of interest, it indicates that confiscation (comiso) has as its presupposition </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a punishable act (hecho punible)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> and that it will be imposed in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">conviction sentence (sentencia condenatoria)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. This chamber is not unaware that some courts have applied this legal institute in other circumstances, for example, when despite issuing a definitive dismissal due to the extinction of the criminal action after payment of the fine, the goods are intrinsically dangerous. In that sense, judgment N° 629-2000, issued by the Criminal Cassation Court of San José, at 12:00 hours on August 14, is expressed. In this, it was also indicated that confiscation (comiso) may proceed after the issuance of an acquittal sentence: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“It is logical to understand it Nombre02 because confiscation (comiso) is decreed as a result of a sentence, be it a conviction or acquittal, and, among the latter, by analogy, dismissal, which essentially fulfills the same procedural effects. In that same sense, Article 465 CPP determines that 'when the sentence orders the confiscation (comiso) of an object, the court shall give it the destination that corresponds according to its nature, in conformity with the norms governing the matter.' There will be very relevant cases in which, notwithstanding the exculpation of the accused, it is necessary to decree confiscation (comiso). For example, the destruction of drugs, explosive material, or poisonous substances. In these cases, the safeguarding of public interests of transcendence (public health or common safety) is at stake. It is obvious to understand these are measures to be imposed with caution and prudence, lest the interests of the accused be unnecessarily injured, despite their acquittal.</span> From that perspective, the situation in each specific case must be examined, and whether, in accordance with the provisions of the law, it is appropriate to decree the confiscation (comiso) of assets.". </span><span style="line-height:150%; font-family:Arial; font-size:12pt">The prior argument, besides not corresponding with what is set forth in Art. 110 of the Criminal Code (since it alludes to the "crime" as the prerequisite for seizure), can only be invoked for the confiscation of effects and instruments, not Nombre02 for the confiscation of proceeds, given that while the basis for the former is the danger associated with the asset and what is sought with the legal institution is to protect the community against that danger [thus Nombre101, "Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.", </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">op. cit.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> , p. 246 and Nombre104. “El comiso en materia de tráfico de drogas: visión comparada de las regulaciones española y chilena”. In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Anuario da Facultade de Dereito da Universidade da Coruña (Revista jurídica interdisciplinar internacional).</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Universidade da Coruña, Servicio de Publicacións, N° 10, 2006, p. 853], the situation is different regarding proceeds. The confiscation of these is explained solely by the need to suppress a patrimonial enrichment that has been obtained irregularly (Nombre105. “El comiso de las ganancias provenientes del delito y el de otros bienes equivalentes a éstas.” In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Revista Penal</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, N° 19, 2007, p. 166. Article available online: http://www.uhu.es/revistapenal/index.php/penal/article/view/312/303). The seizure of proceeds cannot be justified with the argument of their dangerousness, since unlike what happens with other assets (e.g., certain firearms or explosives), money is not an intrinsically dangerous asset. Similarly, its confiscation cannot be based on the probability that those proceeds will be used in the commission of new offenses, because this would lead us to deny the application of the institution when that risk does not exist, allowing the perpetrator of the act, or their associates, to enjoy the benefits obtained irregularly. The confiscation of proceeds, therefore, is based on the need to suppress an enrichment that has its origin in an act that, at least in principle, is of interest to the criminal legal system and whose characteristics are defined by the legislator in each country. Nombre02, for example, in Germany, the confiscation of benefits requires the unlawful commission of the defined act, but not its culpable realization (Nombre02, Nombre106, Nombre17; WEIGEND, Thomas. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Tratado de Derecho Penal. Parte General</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Translation by OLMEDO CARDENETE, Miguel. Granada, Editorial Comares, S.L., 5th renewed and expanded edition, 2002, p. 851). In the Spanish case, in addition to a confiscation of proceeds </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">of a mandatory nature</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> whose prerequisite is the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">penalty imposed for a crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> (Art. 127 of the Spanish Criminal Code), recently - in July 2015 - a provision was included (Art. 127 ter) that provides for an optional confiscation in cases where there is no conviction and the illicit patrimonial situation is demonstrated through an adversarial process. This is a possibility that can only be considered in the following cases: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">a)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">That the subject has died or suffers from a chronic illness that prevents their prosecution and there is a risk that the facts may be time-barred,</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">b)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">they are in default and this prevents the facts from being tried within a reasonable time, or</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">c)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">a penalty is not imposed on them because they are exempt from criminal responsibility or because it has been extinguished.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Comparing our regulation on confiscation with that of other countries allows us to conclude, without any doubt, that contemplating </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> as the sole prerequisite for the application of this legal institution is insufficient. If it concerns effects and instruments, their confiscation must be conditioned on the intrinsic dangerousness of the asset and the need to protect the community against its eventual use. In the case of proceeds, the prerequisite for confiscation must be the demonstration of conduct that is at least defined as an offense and unlawful, and from which irregular enrichment has been obtained. What is not possible, according to this Chamber's assessment, is for the legal operator, faced with a clear norm, to resort to an extensive interpretation to give the cited Article 110 a content it does not have, with a view to ordering a confiscation that is not appropriate. Having said this, we have that in the particular case, on folio 16,339 front of volume XXXIV, the trial court ordered the confiscation of investment certificate N° 62445223 that was later renewed into certificate No. 62736757</span><span style="line-height:150%; font-family:Arial; font-size:12pt">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> for the amount of ₡5,463,555.65 (five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five céntimos), without ever setting forth any reason why it must proceed in that manner, that is, without explaining, whether in this section or in any other part of the judgment, what the relationship is between said certificate and the crime, specifically, whether it is an instrument, an effect, or a proceeds derived from it. This is a transcendental error if two issues are taken into account. The first is that the conduct of [Nombre02 018], of accepting economic retributions coming from [Nombre01 060] after leaving the position of deputy, is atypical. Those patrimonial advantages cannot be considered proceeds (ganancias) from the crime and therefore, are not subject to confiscation. The second point to consider is that even though the trial court, in the section intended to examine the situation of [Nombre01 018], stated that certificate No. 62736757 is related to the RAV 4 vehicle, license plate [Valor 052], that this defendant bought, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">that conclusion is not drawn from the evidence it cites to support the foregoing</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Let us see. According to the relation of accused and proven facts, the RAV 4 vehicle, license plate [], was acquired by [Nombre01 018] for his daughter, [Nombre01 243], with funds originating from [Nombre01 060] that were transferred to him in 2003 and that were in the bank account of [Nombre02 215], located in Panama (thus, cf. order to open trial, accused facts numbers 237 to 239, f. 10,484 to 10,485 front, volume XXIII, and proven facts numbers 224 to 228, previously transcribed). Based on the evidence identified with numbers 418 to 422, the trial court indicated that in April 2004, [Nombre01 243] sold the mentioned vehicle to Mr. [Nombre01 254] and that on April 30, 2004, she acquired the Peugeot vehicle, Berlina style, license plate [Valor 053] (f. 16,040 to 16,044, volume XXXIII), this being </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">"…delivered to the Procuraduría General de la República </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">as confirmed in evidence No. 764</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">"</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> (F. 16,044 front). Now, having reviewed this last piece of evidence by this Criminal Sentence Appeals Tribunal, evidence that is described in the trial judgment as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">"Official letter AEP-386-2010 of August 18, 2010, signed by Miguel Cortés Chaves of the Procuraduría de La Ética y La Función Pública, through which the liquidation of the certificate of time deposit No. 62445223 and interest coupon 62445223-1 is requested, product of the sale of a vehicle delivered by [Nombre01 018]</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">to the Procuraduría General de la República",</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> we have that in said evidence </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">only the certificate of time deposit No. 62445223 and interest coupon 62445223-1 is alluded to, renewed into certificate No. 62736757</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline"> for the amount of ₡5,463,555.65, in the name of the Procuraduría General de la República. Nombre02, contrary to what the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">a quo</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline"> states without basis, at least from evidence No. 764, the relationship of the certificate with the funds obtained after the sale of the Peugeot vehicle, license plate [Valor ], is not drawn. Now, notwithstanding the foregoing, ordering a remand to discuss the point again is unnecessary, since if what was stated by the appealed judgment regarding the origin of the funds supporting certificate No. 62736757 is admitted (and that it is a renewal of No. 62445223), an extreme that, moreover, was not the object of any challenge, the only conclusion that can be reached is that this asset does not have a criminal origin, since in 2003 [Nombre01 018]</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">did not hold the position of deputy and for that reason, the acceptance of the economic retribution used to buy the RAV 4 vehicle is conduct that, although censurable in ethical terms, is not typical</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Much less could one speak of a criminal wrong, and even less of the commission of a crime as the source of the resources whose confiscation is sought. Finally, and for greater abundance, it is important to note that the accusation formulated by the requesting body is absolutely remiss regarding the link between certificate No. 62736757 and the proceeds (ganancias) originating from [Nombre01 060], or at least with the vehicle that, according to the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, was acquired using those proceeds, a matter that was essential to guarantee the discussion on the factual prerequisites that authorize the imposition of confiscation. The issue is so clear that it was the trial court that, breaching the principle of correlation between accusation and judgment and without the due legal reasoning - as already indicated - proceeded to incorporate into the judgment the information that was missing, with the purpose of explaining how part of the proceeds obtained by [Nombre01 018] underwent multiple transformations until it became the investment certificate No. 62736757, whose confiscation it ordered. In summary, we understand that in the particular case, the confiscation of the certificate is not appropriate, not only because the decision was adopted without adequate reasoning, but because in any case, starting from the facts proven by the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a quo</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> and which were not the object of appeal - some, besides, not described in the accusation, thus breaching Nombre02 the principle of correlation between accusation and judgment - the funds supporting the certificate did not originate from a crime, but from an atypical act. Therefore, the claim is declared with merit. The judgment is annulled solely insofar as it ordered the confiscation of the investment certificate No. 62445223 that was later renewed into certificate No. 62736757, and its return is ordered to whomever proves to be its legitimate owner. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXIX.- Appeal in cassation filed by Mr. Mario Navarro Arias, private defender of [Nombre01 028]. </span><span style="font-family:Arial">As explained in prior considerandos, after accepting some grounds of the appeals filed by Messrs. Federico Morales Herrera and Erick Ramos Fallas, private defenders of [Nombre01 041], and by the defendant [Nombre01 033] on a personal basis, the criterion of opportunity granted to [Nombre01 064] was declared illicit, and consequently, the statement he rendered in the oral hearing. By reason of the provisions of Article 443 of the Criminal Procedure Code on the extensive effects of the appeal, we proceeded to examine the consequences of that decision for all the defendants, and in the case of [Nombre01 028], it was ordered to annul the judgment insofar as it declared him the responsible perpetrator of three crimes of penalty for the corruptor for aggravated corruption in the modality of improper bribery in material concurrence, in relation to [Nombre01 022], [Nombre01 001], and [Nombre01 064], and in its place, he was acquitted of all penalty and responsibility for the mentioned crimes. Likewise, due to the foregoing decision, it was considered unnecessary to resolve the claims raised by his defender, Mr. Mario Navarro Arias, with the exception of that which the appellant termed the third ground on procedural grounds and which will be addressed below. </span><span style="font-family:Arial; font-weight:bold">Third ground on procedural grounds. Erroneous and inadequate legal reasoning. Violation of due process and the right of defense due to erroneous application of Article 110 of the Criminal Code</span><span style="font-family:Arial">. The legal basis for this ground is found in Articles 39 of the Political Constitution, 110 of the Criminal Code, 1, 2, 12, 142, 178, 363 subsection b), 369 subsections d) and j), 458, 459, and 460 of the Criminal Procedure Code. The appellant points out that the court, in section XVII of the judgment, ordered the confiscation, among others, of the following assets: 1) Heredia lot registered under the folio real system, registration number ° [Valor 006], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in the name of the company [Nombre 053]. A company belonging to the defendant [Nombre02 028]</span><span style="font-family:Arial; font-style:italic"> "…who proceeded to nourish it with the illicit funds coming from [Nombre01 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, and with those funds carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.".</span><span style="font-family:Arial"> 2) Shares of [Nombre01 028] in the company [Nombre 057], owner, among others, of the real estate registered in the Public Registry under the Folio Real system Registration Number [Valor 007], Sub-registration 000 and Registration Number [Valor 009], Sub-registration 000, real estate</span><span style="font-family:Arial; font-style:italic"> "… that were acquired with illicit funds that came from [Nombre01 060].".</span><span style="font-family:Arial"> For the private defender, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> breached what is stated in Article 110 of the Criminal Code by failing to provide legal reasoning for the decision to confiscate the aforementioned assets: “</span><span style="font-family:Arial; font-style:italic">It is not enough to order \"the loss in favor of the State of…”, but rather it must not only be demonstrated at trial the causal link between the commission of the illicit act and the assets upon which the confiscation falls, and that these constitute a profit derived from the same crime; but also the Court must demonstrate that neither the defendant nor a third party has rights over those assets..."</span><span style="font-family:Arial"> (F. 17,174 front). Furthermore, expert report No. 202-DEF-445-05/06 (Evidence No. 619), in point 4.4, indicates that the company [Nombre 053] was incorporated on April 8, 2002, by the defendant [Nombre01 028] and [Nombre01 257], before Notary Oki Emilio Rojas Chacón. The share capital was formed by the sum of one million colones, represented by one hundred common, nominative shares of ten thousand colones each, of which [Nombre01 028] subscribed 99 shares and the partner [Nombre01 257] one share. According to a notarial certification from 2:00 p.m. on January 27, 2003, [Nombre01 028] occupies the position of president with judicial and extrajudicial representation of the company [Nombre 053], a company that is registered in the Mercantile Section of the Public Registry, on folio 196 of volume 1497, entry 98 (thus, annex 13 of report 202, folio 170). In point 4.3.1 of the same report, it is indicated that Company [Nombre 057], legal identification number CED07° [Valor CED08], was incorporated on May 5, 2003, by [Nombre 264] and [Nombre02 266], before the notary office of Oki Emilio Rojas Chacón. The share capital was established at the sum of ¢50,000,000.00 (fifty million colones), represented by 50,000 shares of one thousand colones each, of which Mr. [Nombre01 264] subscribed 49,999 shares of one thousand colones each, and [Nombre01 266] one share of one thousand colones. Therefore, from the same evidence it follows that the confiscated assets are duly registered in the name of corporations in which, apart from [Nombre01 028], there exist other partners. Jurisprudence and doctrine have determined that the court ordering the confiscation must be very cautious and zealous at the time 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 relationship with the illicit act, mere probability or presumption is not enough, but absolute certainty is required, so as not to violate the principles that inform due process, such as: the principle of legality, innocence, defense, fair trial, culpability, etc., as has been ordered by the Third Chamber of the Supreme Court of Justice, in resolution No. 865-97. In support of his action, he also mentions resolution No. 00377-2010, of the Criminal Cassation Court of Cartago, according to which the causal link between the assets upon which the confiscation falls and the commission of the illicit act must be demonstrated. He adds that even clearer is judgment No. 00121-2010 of the Third Chamber, which he transcribes, highlighting from said text the reference that exists regarding the need for said decision to be duly reasoned. He adds that in the case under examination, the judgment omitted to provide legal reasoning for the confiscation. There is not a single reason to conclude that its issuance should have proceeded, to the detriment of the interests of both [Nombre01 028] and third parties unrelated to the process. He adds that the court also did not refer to the origin of the funds with which the properties upon which the confiscation falls were acquired. There are no signs that suggest even as probable, much less with certainty, that they were those coming from [Nombre01 091] and used by [Nombre01 041] and [Nombre01 078] for the payment of the gifts investigated here. According to the complainant, their origin could have been any other. He reiterates that since 1997 there was a legal relationship between [Nombre01 060] and [Nombre01 058], where legitimate, authentic acts founded on real consulting agreements were executed. The expert reports, the challenger continues, even though they provide a breakdown of the amounts by dates, do not manage to specify whether such sums received can be linked to the consulting contracts or to services unrelated to these. The appeal adds: “… </span><span style="font-family:Arial; font-style:italic">The funds that entered my client's account, according to the banking information that appears in the record, occurred a very long time after the accused crime was consummated, so given the long-standing commercial relationship, it is with very high probability that the funds in question had their origin in any of the commercial acts that arose previously. For this reason, it is absolutely necessary for the Court to demonstrate beyond all doubt that the totality of the funds that entered my client's bank accounts are, in the first place, coming from a crime and, in the second place, that the crime from which that money came is precisely the one investigated here, in order not to affect the rights of all those persons who have no relationship whatsoever with the illicit act, nor violate the principles that inform due process, such as: the principle of legality, innocence, defense, fair trial, culpability, etc.</span><span style="font-family:Arial">, …”. (F. 17,182 front). He questions why, if the assets of [Nombre 058] are confiscated, an identical decision was not taken with the funds that Bufete Valerio Casafont received, for professional fees, from the account of [Nombre 058]. He cites, in support of this assertion, the testimonies of Nombre107 and [Nombre01 111], to the effect that the funds came from the bank accounts of that company. Since the judgment is not reasoned, it is unknown why they acted differently regarding the assets of the mentioned firm. The only legal reasoning there is in this regard is a transcription of Article 110 of the Criminal Code, and there is no analysis of the substantial sums of money that were also paid from the accounts of [Nombre 058] to other companies: </span><span style="font-family:Arial; font-style:italic">"It is clear, because Nombre02 so determined the judgment, that [Nombre01 028] was sanctioned for giving public officials money as payment of gifts. Three crimes of aggravated improper bribery in its modality of penalty for the corruptor. The instrument used for the commission of the crime, according to the legal classification, was the money given to the co-defendants. It is clear, because Nombre02 accepted it as proven in the judgment, that the funds that served that purpose were PRIVATE FUNDS, coming from [Nombre01 091] AND RECEIVED IN THE ACCOUNT NOT OF [Nombre 028], BUT OF [Nombre01 058]. It is clear and evident that this account handled more than fourteen million dollars and that according to EXPERTISE EXPANSION NUMBER 202 that explored the movement of the account of the account holder, the sums delivered to the companies or persons involved did not exceed fifty percent. As indicated supra, substantial sums were paid to Bufete Valerio Casafont, TO THE COMPANIES MACRO INVESTMENT AND TELEINVEST SOCIEDAD ANÓNIMA, TO THESE LATTER A SUM EXCEEDING ONE MILLION ONE HUNDRED THOUSAND DOLLARS. The experts from the Judicial Investigation Agency never carried out a study on who those recipients were, despite the sums being substantial. What is more, THE SENTENCING COURT DID NOT EVEN TAKE THE TROUBLE TO ANALYZE THE RECIPIENTS OF THE SUMS OF MONEY BEYOND THOSE INVOLVED IN THESE FACTS. Leaving aside a very high percentage of money distributed by the company SNQC. It does not decree the confiscation of the money paid to Nombre108, considering it to be money received lawfully, denaturing its entire argument regarding the handling of funds by the company SNQC ..." </span><span style="font-family:Arial">(f. 17,184 and 17,185 front). After citing evidence 619, expert report No. 202-DEF-445-05/06 from the Economic and Financial Crimes Section of the Criminal Investigations Department of the Nombre12 and its annexes, consisting 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), the appellant states that with these elements the origin and destination of the money from [Nombre01 060] that was delivered by [Nombre01 028] in favor of the defendants in the case is proven, but the court did not take the care to analyze this evidence. Ignoring that it involved private funds handled by the company [Nombre 058], it decreed the confiscation of two assets, specifically the PERCENTAGE IN A COMPANY CALLED [Nombre01 057] and a dwelling belonging to [Nombre01 053], acquired with funds that have nothing to do with THE OBJECT OF THE CRIME OF IMPROPER BRIBERY. The appellant adds: “… </span><span style="font-family:Arial; font-style:italic">The point under discussion is that and its analysis is important. IF SNQC HANDLED PRIVATE FUNDS, AND FROM THOSE FUNDS SUMS WERE GIVEN TO THOSE INVOLVED IN THESE FACTS, WE DO NOT DISPUTE THAT; ACCEPTING AS MUST BE DONE IN RESPECT FOR THE FACTS, the instrument of the crime WAS THE GIFT, and the profit from that GIFT WAS THE APPROVAL OF THE BID IN FAVOR OF [Nombre 091], so that assuming that with funds from [Nombre01 091] ASSETS WERE ACQUIRED on the part of TWO PRIVATE CORPORATIONS, those assets cannot be the object of confiscation if they are not related to the criminal type attributed to my client </span><span style="font-family:Arial">…” (F. 17,186 front, volume XXXVI). By reason of the foregoing, he requests that this ground be declared with merit and that it be ordered, first, the revocation of the confiscation or, in the alternative, that a remand be ordered so that, with a new composition and in accordance with the rules established in Article 359 of the Criminal Procedure Code, the court determines and provides legal reasoning as to whether or not the ordered confiscation is appropriate.

XXXX.- Although for different reasons, the ground is upheld. In section XVII of the judgment, specifically from folios 16,337 recto to 16,341 recto, volume XXXIV, the forfeiture (comiso) of the following assets was ordered: “A.4) Property located in the Partido de Heredia registered under the Folio Real system, Registration Number [Valor 006], Sub-registration in the Name01 of the company [Nombre 053]. Company belonging to the accused [Nombre01 028] who proceeded to nourish it with illicit funds coming from [Nombre01 060], and with those funds carried out various bank transactions and businesses of different kinds (sic), such as the purchase of the described property… 4) The shares of [Nombre01 028] in the company [Nombre 057], owner, among others, of the properties registered in the Public Registry under the Folio Real system Registration Number [Valor 007], Sub-registration 000 and Registration Number [Valor 009], Sub-registration . Real estate that were acquired with illicit funds that came from [Nombre01 060].”. As can be observed, the trial court indicated that the property in the Partido de Heredia registered under the folio real system, registration number [Valor 006], sub-registration 000, in the Name01 of the company [Nombre 053], was acquired with funds proceeding from [Nombre01 060]. The same was affirmed regarding the properties registered in the Name01 of the company [Nombre 057], ordering the forfeiture (comiso) of the shares of [Nombre01 028] in the cited company. In view of the approach of the a quo, in which the seized assets are gains derived from the crime of penalizing the corruptor in its form of aggravated corruption by improper bribery, this Chamber concluded, in previous recitals, that the conduct of [Nombre01 028] (that which could be demonstrated) is atypical and, consequently, he was acquitted of all penalty and responsibility. Under these new circumstances and as already indicated when examining the forfeiture (comiso) of investment certificate No. 62736757 (thus, recital XXXIX.- of this resolution), the forfeiture (comiso) is absolutely improper, since if there is no typical action, there will be even less criminal wrongdoing and even less a crime that can be deemed the origin of the funds used to acquire the assets whose forfeiture (comiso) was ordered in the appealed judgment, the latter being the prerequisite contemplated by article 110 of the Penal Code. For that reason, the claim is declared with merit. The judgment is annulled insofar as it ordered the forfeiture (comiso) of the property in the Partido de Heredia registered under the folio real system registration number [Valor 006], sub-registration in the Name01 of the company [Nombre 053], and the shares of [Nombre 028] in the company [Nombre02 057], owner, among others, of the properties registered in the Public Registry under the folio real system registration number [Valor 007], sub-registration 000 and registration number [Valor 009], sub-registration . The immediate return of the aforementioned assets is ordered to whoever proves to be their legitimate owner.

XXXXI. - Appeals in cassation and appeals of judgment filed by attorney Juan Luis Vargas Vargas, special judicial representative of [Nombre02 077] in his capacity as president of the company [Nombre 061]. Attorney Juan Luis Vargas Vargas, special judicial representative of [Nombre01 077] in his capacity as president with unlimited general powers of the company [Nombre02 061], filed an appeal in cassation (f. 17,649 to 17,674 of volume XXXVII; Name02 as an appeal of judgment (cfr. f. 172,273 to 172,291 of volume XXXIX)), against judgment No. 167-2011, cited above. In both, after referring to the need to guarantee a comprehensive review of what was resolved, he alludes to his standing to appeal, explaining that both the doctrine and the jurisprudence of the Sala Tercera (resolutions No. 138-91; 1080-98; 583-2003; 712-2006 and 125-2010), Name02 as well as the Sala Constitucional (resolutions No. 5447-95, 4121-96 and 5464-96), recognize the right to file an appeal for anyone who, not having been a party to the process, was affected by the challenged resolution. He speaks, specifically, of the right to challenge recognized for a third party who is harmed by the forfeiture (comiso) of an asset of their property, as happened in this case. Given that the content of both challenges (cassation and appeal of judgment) is essentially the same, this Chamber will provide a single description of what was claimed. “Sole ground of the appeal. Violation of due process due to infringement of the right of defense for having ordered the forfeiture (comiso) of a real property belonging to a corporation (sociedad anónima)” (f. 172,279, volume XXXIX). As violated regulations, the challenger cites articles 39 and 41 of the Political Constitution, 8 paragraph 1) of the American Convention on Human Rights, and 369 paragraph j) of the Criminal Procedure Code. As erroneously applied norms, he mentions numerals 103 and 110 of the Penal Code. According to him, the right to due process was violated, by not guaranteeing the right of defense and hearing to the company owning the real property whose forfeiture (comiso) was ordered. After citing doctrine and some pronouncements of the Inter-American Court of Human Rights on due process, of the Sala Constitucional and the Sala Tercera on the subject and in particular, on the right of defense and hearing (from the Sala Constitucional, resolutions No. 5447-95; 4121-96 and 5464-96; from the Sala Tercera, votes No. 74-98; 1080-98; 583-2003; 1273-2005; 712-2006; 96-2009; 125-2010 and 163-2010), Mr. Vargas Vargas affirms that the forfeiture (comiso) of property [Valor 003], belonging to the company called [Nombre01 061], legal identification number [Valor CED09], was ordered without giving it participation in the process. For the appellant, the reasoning given for the forfeiture (comiso) is not valid “… because 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 denounced in this ground prevented the sentencing judge from issuing any pronouncement on the forfeiture (comiso), since the minimum premises of adversarial proceedings that guaranteed having heard the defense of the harmed company had not been established in the process. In this sense, the decision made on the forfeiture (comiso) does not rest 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. Because of this, the decision to order the forfeiture (comiso) in the judgment is surprising because during the processing of this case no notice whatsoever was given to the referred company, thereby giving it no opportunity whatsoever to set forth its reasons opposing such a possibility of losing the mentioned property to the State” (folio 172,288, volume XXXIX). He reiterates that the court ordered the forfeiture (comiso) of the property without giving the opportunity for defense to the owning company, causing it irreparable harm. He adds that in cases like the present one, the Sala Tercera has ordered the partial annulment of what was resolved and has ordered referral for a new substantiation of the point, a position he does not share, because: 1.- It would give an undue advantage to the civil claimants, who did not bring action in a timely and proper manner against the corporation (sociedad anónima): “This implies a breach of the rule of defective procedural activity which establishes that under the pretext of replacing an act, the criminal process cannot be rolled back to precluded stages” (Folio 172,289). 2.- “Due to the large dimensions of the denounced procedural defect, which have implied an absolute exclusion of the affected company which was never heard, the partial reversal of the trial and judgment is not the appropriate mechanism to restore the enjoyment of the company’s intervention rights. And this is Name02 because, in the event of ordering a partial annulment, it would imply curtailing the opportunity to offer evidence and refute the evidence and arguments of the claimants in an intermediate phase already precluded” (Folios 172,289 and 172,290). Therefore, he understands it contrary to logic and procedural economy to order the partial reversal of the trial, with the only solution being to refer the interested parties “to the corresponding route”, if they so deem fit. As for the petition of the appeal, he requests it be declared with merit, to annul the judgment insofar as it ordered the forfeiture (comiso) of the property registered under the sequence number [Valor 003], of the Partido de Guanacaste, which belongs to the company [Nombre01 061], and, as it is the only solution consistent with the alleged defect, to refer the parties to the corresponding route, if they so deem fit. Finally, it must be indicated that the appellant offered evidence at this procedural stage, admitting the special judicial power of attorney of [Nombre01 077] to attorney Juan Luis Vargas Vargas; the copy of the legal standing of the company [Nombre01 061]; and a registry certification showing that this legal entity is the owner of the property subject to forfeiture (comiso).

XXXXII. - Although for reasons and with consequences different from those alleged, the appeal is declared with merit. The trial court ordered the forfeiture (comiso) of the property registered in the Partido de Guanacaste, folio real system registration [Valor 003], sub-registration and which belongs to the company [Nombre01 061], after understanding that it was acquired with part of the economic reward that was promised to [Nombre01 001] by the leaders of [Nombre01 091], that is, with the gain obtained from the crime of aggravated corruption by improper bribery (thus, f. 16,338 recto, volume XXXIV). However, this Chamber acquitted [Nombre01 001] for that crime, after dismissing as a proven fact that he accepted a promise of economic reward in the terms contemplated in the accusation and also excluding that his conduct, in what can be considered proven with certainty by the a quo, could be subsumed under another criminal type. Faced with this new scenario, the forfeiture (comiso) of the property belonging to [Nombre01 061], a corporation (sociedad anónima) represented by [Nombre01 077], the father of the accused, must be considered improper, since even though the property was acquired with the funds proceeding from [Nombre01 060], in the particular case no crime whatsoever was committed, a basic requirement for the provisions of Art. 110 of the Penal Code to be applicable. For the reasons stated, the appealed judgment is annulled insofar as it ordered the forfeiture (comiso) of the property registered in the Public Property Registry, Partido de Guanacaste, under the folio real system registration [Valor 003], sub-registration . The return of the asset to its legitimate owner is ordered.

POR TANTO:

• 1)The second ground of appeal of judgment formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Nombre01 041]; section two point D); and section three point A), of the appeal of judgment formulated by the accused [Nombre02 033], on a personal basis, are declared with merit. By virtue of this, the following is resolved: 1.1) The standard of opportunity (criterio de oportunidad) granted to [Nombre01 064] and the evidence that derived from it are declared unlawful (ilícito); 1.2) The appealed judgment is partially annulled, only with regard to the following: the convictions ordered against [Nombre01 033] and [Nombre01 041]. Likewise, by extensive effect, the convictions ordered against [Nombre01 028], [Nombre02 001] (only for the crime of aggravated corruption), and [Nombre01 022] are also annulled. In application of the principle of in dubio pro reo, these five accused are acquitted of all penalty and responsibility for the crimes they have been charged with. 1.3) As unnecessary, a pronouncement is omitted on the other claims formulated by [Nombre01 033] on a personal basis; the appeals filed by his defense counsel, attorney Rafael Gairaud Salazar; the other claims contained in the appeals formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Nombre 041]; the grounds formulated (with the exception of the third of each of their appeals) by attorney Mario Navarro Arias, defense counsel for [Nombre 028]; by attorney Yamura Valenciano Jiménez, public defender of the co-defendants [Nombre02 001] and [Nombre01 022]. 2) The fifth ground on procedural form, point 1), of the appeal formulated by attorneys Wilson Flores Fallas and Nazira Merayo Arias, public defenders for [Nombre 006], is declared with merit. By virtue of this, the judgment is annulled only insofar as it sentenced this accused to pay personal court costs (costas personales). The referral of the case to the trial court is ordered, so that it may rule again on this point, with due substantiation. 3) The fourth, fifth, sixth, seventh, eleventh, twelfth, and thirteenth grounds of the appeals filed by attorney José Miguel Villalobos Umaña, private defense counsel for [Nombre01 018], and by this accused on a personal basis, are declared with merit, with the following consequences: 3.1) The judgment is annulled only regarding the penalties imposed on [Nombre01 018] for the crime of unlawful enrichment. With respect to said point, the referral of the case to the trial court is ordered so that, with a new panel and the proper reasoning, it proceeds to set the corresponding sanction. 3.2) The judgment is annulled insofar as it ordered the forfeiture (comiso) of the investment certificate No. 62445223 that was renewed into certificate No. , ordering its return to whoever proves to be its legitimate owner. 4) The third ground of the appeal filed by attorney Mario Navarro Quirós, private defense counsel for [Nombre02 028], which he named “Erroneous and inadequate reasoning. Violation of due process and the right of defense due to erroneous application of article 110 of the Penal Code”, is declared with merit. By virtue of this, the judgment is annulled only insofar as it ordered the forfeiture (comiso) of the property in the Partido de Heredia registered under the folio real system registration number [Valor 006], sub-registration in the Name01 of the company [Nombre01 053], and the shares of [Nombre 028] in the company [Nombre 057], owner -among others- of the properties registered in the Public Registry under the folio real system registration number [Valor 007], sub-registration 000, and registration number [Valor 009], sub-registration . The immediate return of the aforementioned assets is ordered to whoever proves to be their legitimate owner. 5) The appeals filed by attorney Juan Luis Vargas Vargas, special judicial representative of [Nombre01 077] in his capacity as president of [Nombre02 061], are declared with merit. By virtue of this, the appealed judgment is annulled only insofar as it ordered the forfeiture (comiso) of the property registered in the Public Property Registry, Partido de Guanacaste, under the folio real system registration [Valor 003], sub-registration and which belongs to the cited corporation (sociedad anónima). The return of the real property to whoever proves to be its legitimate owner is ordered. 6) The other claims raised by the accused and their defense counsel are declared without merit. 7) In application of the institutional policy of zero paper and given that the resolution is very extensive, which is why it cannot be notified by fax or email, a compact disc containing it is made available to the parties, which they can pick up at the court clerk's office starting next Wednesday, December 9, 2015. Notifíquese.

</p> <p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-weight:bold">“II.- </span><span>As explained in resolution No. [Telf1] cited above, the Third Chamber of the Supreme Court of Justice, when ordering the remand (reenvío) to this procedural stage, </span><span style="text-decoration:underline">expressly</span><span> excluded a series of matters from the review of this court of appeals, specifically, matters relating to the civil claims in the proceeding; the simulation frauds attributed to [[Name1]</span><span style="-aw-import:spaces">&#xa0; </span><span>]; and the matter concerning the acquittal of the accused [[Name2]</span><span style="-aw-import:spaces">&#xa0; </span><span>] on four counts of illicit enrichment. In addition to the foregoing, this court of appeals proceeded to exclude other issues that, having not been appealed in cassation, became final, that is, the final dismissal (sobreseimiento definitivo) issued in favor of [[Name3]</span><span style="-aw-import:spaces">&#xa0; </span><span>] due to his death and the provision regarding the seizure (comiso) of the vehicle with license plate No. [[Placa1]</span><span style="-aw-import:spaces">&#xa0; </span><span>]. Finally, the Third Chamber also made other decisions regarding a series of topics related to this case, which, although not specified in the operative part of its resolution, must be observed by this office, as the judgment is a logical-legal unity, and as such must be understood integrally. For example, when resolving the issue of the statute of limitations, the Third Chamber expressly stated: </span><span style="font-style:italic">“[…] the judgment acquitting due to the statute of limitations of the criminal action [Phone2], issued in the record by the Criminal Appeals Court, is annulled, ordering the remand (reenvío) for a new proceeding as legally appropriate, </span><span style="font-style:italic; text-decoration:underline">this Chamber clearly establishing that, in this case, the criminal action is not time-barred</span><span style="font-style:italic">.” </span><span>(F. 176,431, Volume XLIII, the underlining is not from the original). Another example is found in what was agreed regarding evidence No. 588. According to the cited Chamber, that evidence is lawful because its procurement did not require the order or endorsement of a Costa Rican judge. For this reason, it annulled the second-instance judgment issued by this court of appeals (with a different composition) insofar as it acquitted the accused, and ordered this office </span><span style="font-style:italic">“…</span><span> </span><span style="font-style:italic; text-decoration:underline">to conduct a new comprehensive examination of this evidence together with the remaining evidence in the case</span><span style="font-style:italic">.”</span><span> (F. 176,448 recto, the highlighting is ours). As can be seen, the cassation body not only ruled on these topics, </span><span style="text-decoration:underline">but also expressly conditioned the analysis to be conducted with the second-instance remand (reenvío)</span><span>. Aside from those already mentioned, there are other aspects on which the Chamber also resolved on the merits, with preclusive and declaratory force, bringing to an end the discussion that arose around them. These are decisions that, it bears repeating, although not contained in the operative part of the cassation judgment cannot be ignored, as some of the parties requested during the oral hearing held at the end of September of this year, given that they have been issued for the specific case by the reviewing body that rules in the last instance. This means we are not faced with the dilemma of accepting or not the criteria expressed by the Third Chamber, but rather with the duty to respect the limits that that jurisdictional body established for the remand (reenvío) to the second instance, that is, the duty to comply with the decisions it made with preclusive and declaratory character, and which, therefore, this court of appeals cannot disregard or reverse. Note that in a system of appeals such as ours, where there are two appeals and in which the Public Prosecutor's Office can also appeal, it is not unusual for the Third Chamber, upholding a cassation appeal filed by that party, whether due to contradictory precedents, or due to non-observance or erroneous application of a substantive or procedural rule, to annul the resolution issued by the criminal appeals court and confirm that of the trial court (see, e.g., judgments No. 2014-00416 of 10:18 a.m. on March 13, 2014; No. 2013-00992 of 9:52 a.m. on August 9, 2013, [Phone3] of 2:36 p.m. on July 31, 2013 and 2013-01814 of 4:03 p.m. on December 3, 2013, among others). In the same vein, as is the case in this matter, it may be that the Third Chamber, despite annulling the appeals court judgment and validating some of the arguments put forth by the trial court, deems it necessary to order the remand (reenvío) to this procedural stage (e.g., because there are pending claims to be resolved), which in no way authorizes this office to disregard issues that have indeed been resolved and defined. This is because the remand (reenvío) to the second instance does not imply a new review in the broadest sense of the term, but rather a review that is necessarily linked to the judgment, in this case the cassation judgment, that annulled the previous resolution. Therefore, the remand (reenvío) must be carried out within the limits established by that cassation ruling.

Thus, and regardless of the opinion this appellate court may hold regarding the issues that the Chamber resolved and decided on the merits, it is concluded that, with respect to these, we are not in a position to disagree, nor to issue a different pronouncement.

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Defects present in its processing and in the resolution that authorized it. 3) Hypothetical inclusion of the conducts omitted by the requesting body when seeking the opportunity criterion, and new assessment regarding the reproach that can be formulated as to the conducts attributed to [Name 064], in comparison with those of other defendants. Weighting of the arguments put forth by the trial court regarding the particular issue. 4)\r\nCredibility that can be granted to the statement of the collaborating defendant. <o:p></o:p></span></p>\r\n\r\n<p class=MsoNormal style='line-height:150%'><b><span style='font-family:Arial'>1)\r\n<u>Competence of the trial court to verify compliance with the legal requirements contemplated for applying an opportunity criterion</u>.</span></b><span\r\nstyle='font-family:Arial'> By majority and through a resolution of 1:30 p.m.\r\non September 2, 2010 (cfr. folios <st1:metricconverter\r\nstyle=\"BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom\"\r\ntabIndex=\"0\" ProductID=\"13.676 a\" w:st=\"on\">13,676 to</st1:metricconverter>\r\n13,736 verso of volume XXVIII), the trial court refused to hear the\r\nprotests filed against the applied opportunity criterion, regarding its\r\n“appropriateness or inappropriateness” and the possible “correctness or incorrectness” of the\r\nauthorizing resolution issued by the criminal judge. It is a resolution\r\n-that of the trial court- which, because it is extremely extensive, is not advisable to\r\ntranscribe, however, it can be summarized as follows: <b><i>i)</i></b>\r\nThe judge of the preparatory or intermediate procedure is the only one competent to\r\nexercise jurisdictional control over the application of the opportunity criterion\r\n[in particular, that contemplated in subsection b) of numeral 22 of the\r\nCódigo Procesal Penal] and its decriminalizing effects. The request for its\r\napplication must be filed before the court of the preparatory or\r\nintermediate stage. Furthermore, due to its complexity, once its application is authorized, the\r\ndecriminalizing consequence is conditional upon fulfillment of the condition\r\nsuspensive, with the criminal judge subsequently responsible for evaluating the effectiveness of\r\nthe collaboration and the definitive solution of the matter. In the trial phase, the\r\ncourt must ensure the legality of the reception of the\r\ncollaborator's account and its assessment according to the rules of sound criticism (sana crítica). <b><i>ii)</i></b>\r\nThe trial court does not have competence to issue a pronouncement on the\r\nimplementation of the opportunity criterion, since it only hears the matter\r\nonce the opening of the trial has been declared. The <i>a quo</i> assures that this is how\r\nit has been considered by the Sala Tercera, since: <i>“…not even in cases where the opportunity criterion has not been\r\nprocessed in favor of a person who appears to\r\nrender a statement at the hearing, has said cassation body considered that\r\nit is for the trial court to evaluate the prerequisites for its appropriateness,\r\nnor to issue such a pronouncement in substitution of the criminal judge, abstracting,\r\nmoreover, from the competence of the trial judge, any assessment regarding the\r\ncollaboration agreement (see resolutions No. 392-1999 and No. 795-2009 of the Sala\r\nTercera). Conversely, in those cases, the indicated cassation body has\r\ndetermined that because control was not exercised by the criminal judge, it is not\r\npossible to receive the deponent in the hearing (e.g., votes No. 795-2009 and No.\r\n1061-2008 of the Sala Tercera), making it completely clear that the criminal judge is the\r\nonly one competent to carry out the referenced task.” </i>(F. 13,681 recto).\r\nTherefore, one cannot seek to have the trial court define the fate of\r\nan opportunity criterion that has already been resolved and regarding which the\r\nstatement of [Name 064] was admitted in the hearing. <b><i>iii)</i></b> If the trial\r\ncourt decided to examine the decision that accepted the opportunity criterion\r\nto evaluate its decriminalizing effects, it would be arrogating to itself the\r\nknowledge of a matter that is pending before another jurisdictional body, which is\r\nprohibited by articles 11 and 155 of the Constitución Política and 4 of the Ley\r\nOrgánica del Poder Judicial, according to which judges must fulfill the\r\nduties imposed by law and not arrogate faculties that have not been\r\ngranted to them. Likewise, such proceeding would affect various principles and guarantees\r\n(legality, natural judge, judicial independence, impartiality, and due\r\nprocess). The court cannot hear protests aimed at invalidating the\r\nopportunity criterion already granted without the legislator authorizing it to do so, to\r\napprove or reject prosecutorial requests to apply the criterion, to\r\ncontrol the action of the jurisdictional body charged with that task, or to\r\nhear, through an appeal, the objections of the parties against\r\nthat decision of the criminal judge. The legislator also did not provide for vertical control\r\nin the case of this type of resolution, a situation that the Sala\r\nConstitucional justified in resolution No. 12090-2009. It is the statement rendered by the\r\nbenefited person and not the resolution that approves the criterion that must be\r\nanalyzed by the trial court and challenged by the parties. <b><i>iv)</i></b>\r\nUnlike what happens with other resolutions (e.g., the order to open the\r\ntrial, the denial of a request for dismissal, or the rejection of a\r\n“motion to nullify”) that are processed within the same case, in the case\r\nof the opportunity criterion, an autonomous and different procedure is articulated in\r\nwhich it is discussed whether or not its application is appropriate (votes No. 1119-2005 of the Sala\r\nConstitucional and No. 114-2006 and 404-2006, both of the Sala Tercera). While\r\nthe first cited decisions cannot be appealed, because it is\r\nfeasible to discuss them in later stages of the process (what is known as\r\nhorizontal control), in the case of the opportunity criterion, the dismissal (sobreseimiento)\r\nthat is eventually issued in favor of the collaborator can be appealed. For this reason,\r\nmaintaining that the absence of an appeal against the resolution that\r\nauthorized the opportunity criterion opens the door to a kind of horizontal\r\ncontrol in the hearing is incorrect, since the trial court is not the\r\ncompetent body to resolve that issue, given that vertical control is provided for\r\nin relation to the dismissal that is eventually issued. <b><i>v)</i></b>\r\nNeither the trial court nor the cassation body can control the legality\r\nof the decriminalizing effects of the opportunity criterion, since this\r\nconcerns the criminal judge. A different matter is the taking of evidence and its\r\nassessment, which is indeed the competence of the sentencing court and its controller. The\r\ncourt that authorized the criterion is only subject to the legal system and\r\nits decision cannot be conditional upon a subsequent assessment by the trial\r\ncourt, when the legislator has not provided for it in that manner; <b><i>vi)</i></b>\r\nThe impartiality of the trial court may be affected if it assesses the\r\nprerequisites for the appropriateness of the opportunity criterion. The accusation is what\r\ndescribes the accused acts and is the basis upon which the\r\ntrial must be conducted. Judgment is rendered in relation to specifically\r\naccused persons, not others with a different status (art. 361, 363, and 365 of the\r\nC.P.P.). Therefore, the collaborator does not appear as a defendant in the case, but as\r\na source of evidence. Their statement must be assessed individually and in\r\nconjunction with the other evidence, but not to decide on their criminal\r\nliability, nor to contrast that liability with that attributed to the other\r\ndefendants. This is an additional reason why the legislator decided\r\nto remove from the competence of the trial court the assessment of the\r\ndecriminalizing effects of the institute, as it cannot hear about a mechanism already\r\nordered by another jurisdictional body, applied to someone who is not accused in the\r\ncase under examination. <b><i>vii)</i></b> With convoluted wording, the trial\r\ncourt argues that the opportunity criterion is not technically a means of\r\nproof. Its nature is not probative, but decriminalizing. When the\r\ncollaboration agreement consists of testifying during the hearing, it will be\r\nonly then that the statement assumes the character of an evidentiary element. The way or\r\nchannel through which said statements are received by the\r\ntrial court is the means of proof, which for technical reasons can never\r\nbe the proceeding followed for the approval of the criterion. Said in other\r\nwords, the procedure carried out to obtain the statement does not\r\nconstitute a means of proof. This is how the <i>a quo</i> interprets resolution No.\r\n6808-2002 of the Sala Constitucional, when it affirms that the trial court is\r\ncompetent to exercise the legality control of the aforementioned instrument, that is\r\nonly to review the concurrence of the legal requirements for the application\r\nof the institute, but not to decide whether the indicated\r\ncriterion should have been granted or not, or other matters related to the decriminalizing effects that\r\narise from it. Although the constitutional court points out that this control\r\nis the responsibility of the trial court, the truth is that apart from the fact that numeral 24\r\nof the Código Procesal Penal provides otherwise, in that particular case the issue\r\nthat the Sala Constitucional addressed was the provisional nature of the effects\r\nof the collaboration agreement and not the matter related to the competent body to\r\ndecide on the waiver of criminal prosecution. It is also an\r\nisolated pronouncement, prior to two different and analogous ones (Nos. 12090-2009 and\r\n1119-2005), which do not confer similar scope to the control that the\r\ntrial court must carry out, besides the fact that the last two votes, together with\r\n2662-2001, are binding. <b><i>viii)</i></b> The proceeding related to the\r\napplication of the opportunity criterion is independent of the process in which\r\nthe collaborator must render their statement. Furthermore, it does not involve a definitive\r\nand unrepeatable act, nor does it imply the practice of anticipated evidence (as\r\nhappens, e.g., with raids, or the intervention of\r\ncommunications), since the collaborator's statement must be given during\r\nthe hearing. For that reason, it can be assessed by the trial court. In the same\r\nway, in the mentioned cases, the legality of the elements of conviction is not\r\nmade dependent on the issuance of a prior judgment regarding the imputed\r\nconducts, or the culpability of the involved persons -as does happen with the\r\ncriterion-, hence the treatment that the legislator gave it is different. <b><i>ix)</i></b>\r\nIt is not for the court to examine, to confirm or discard, the resolution of\r\nthe criminal judge that authorized the application of the criterion (namely, the resolution\r\nof 9:51 a.m. on June 1, 2007, viewable at folios <st1:metricconverter\r\nstyle=\"BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom\"\r\ntabIndex=\"0\" ProductID=\"41 a\" w:st=\"on\">41 to</st1:metricconverter> 89 of the\r\nseparate file where it was processed). <b><i>x)</i></b> The application of the opportunity criterion\r\nis regulated. Regarding the scope of jurisdictional control,\r\nwhether it is only regarding compliance with the formalities provided by law, or\r\nit also covers requirements of an evaluative or substantial nature -e.g.,\r\nverifying the concept of lesser reproachability (menor reprochabilidad)-, the trial court understands\r\nthat the cited control is limited to the verification of formal\r\nor legal requirements, excluding evaluative ones, without the jurisdictional\r\ndecision being able to substitute for that of the prosecution, nor invade its authority\r\nregarding the convenience or appropriateness of the measure, nor examine\r\naspects pertaining to the accusatory function. In support of its position, it cites\r\nseveral resolutions of the Sala Constitucional, e.g., numbers 2662-2001,\r\n12090-2009, 6808-2002 and 1119-2005, as well as two rulings of the Sala Tercera,\r\nspecifically, No. 795-2009 -in which it was affirmed that control covers\r\nsubstantial prerequisites- and No. 450-2004, in which the criterion\r\nexpressed by the Sala Constitucional was adopted, which the trial court shares. The\r\n<i>a quo</i> adds that, in accordance with the adopted democratic model, the essential functions cannot\r\nbe concentrated in a single body, but rather must\r\nbe distributed and their exercise controlled. From that perspective, it could not\r\nbe admitted that the criterion of the criminal judge prevails over that of the Ministerio\r\nPúblico regarding the investigation and the exercise of criminal prosecution. Already\r\nregarding the control that the trial court must carry out, it is insisted\r\nthat it should be that corresponding to the evidence received in the\r\nhearing. The deposition of the collaborator, rendered live in the\r\nadversarial proceeding, in the presence of the parties, is what has the condition of\r\nevidence. The trial court's control over the proceeding followed to\r\nauthorize the opportunity criterion is only to the extent that it is the\r\nantecedent for the described appearance, since, for not being a means of proof,\r\nthe court must limit itself to verifying the formal aspects\r\nspecified by the Sala Constitucional, that is, the existence of the\r\nprosecutorial request, the hierarchical authorization, and the approval by the\r\njudge. <b><i>xi)</i></b> Although the Sala Tercera has proceeded to assess the\r\nconducts of the alleged beneficiary and of the defendants against whom the latter\r\ndeclares, in none of the cases has it attributed such work to the\r\nsentencing court, something that in any case it could not do without compromising the\r\nessential guarantees. It cites, in this regard, resolutions No. 1061-2008 and\r\n795-2009. In the first, the trial court considered that there were\r\nirregularities in the jurisdictional advance of a deponent, for which\r\nreason it stripped it of all evidentiary effectiveness. Faced with this, the Sala considered that although in\r\nthe particular case the criterion had not been granted, neither did the\r\nprerequisites exist for it, since the participation of the collaborator was fundamental.\r\nIn response to this, the majority vote holds that the cassation body at no\r\ntime argued that it was the work of the trial court to assess the appropriateness of the\r\ncited criterion, nor to contrast the conducts of the deponent and the accused. The\r\nSala carried out that analysis based on the self-incriminating statement itself,\r\nan exercise that before the judgment the trial court cannot perform and\r\nthat is different from the scenario in which, according to the same cassation body,\r\nthat examination had to be done, namely, when one seeks to receive a self-\r\nincriminating account without observing the respective guarantees. In the second vote, the\r\nSala Tercera affirmed that the trial court should have limited itself to pointing out the\r\nnon-existence of the jurisdictional approval of the opportunity criterion, without\r\nit being its task to acquaint itself with the collaboration criterion, qualify it, and much\r\nless invoke, for that purpose, the content of the evidence taken before\r\nhearing the deponent's account. This matter is fundamental, because a\r\nhabeas corpus was filed on behalf of the collaborator, resolved by the Sala Constitucional\r\nin vote No. 6808-2002 and in which it was held as proven that to declare\r\nillegal the described agreement, the court argued that the liability\r\npossibly attributable to the protected party would be similar to that of other defendants and\r\nthat the information they could provide would not be decisive for the outcome\r\nof the process. The <i>a quo</i> considers the minority position expressed\r\nin that judgment No. 6808-2002 to be central, since it is explained that the trial\r\ncourt was prohibited from anticipating the result that the accusation would have;\r\nestablishing the authorship that corresponds to the so-called “crown witness”\r\nwhen it has not yet ruled on the accusation in which\r\nother perpetrators and co-perpetrators of the act are cited and from which the collaborator is excluded; engaging\r\nin speculations about the outcome of the prosecution that the Ministerio Público has not\r\nexercised and basing the rejection of the criterion on an assessment of the evidence and\r\nthe facts not contained in the accusation. According to Mr. Fernando Cruz\r\nCastro, magistrate who subscribes to that minority position, it is only after\r\nthe evidence is received in the hearing that the sentencing court can determine\r\nif the action of the collaborator is less reprehensible than that which they helped to resolve\r\nand if their collaboration has been decisive. Based on this, the judges conclude\r\nthat even though the Sala Tercera has assessed and compared the conduct of the collaborator\r\nand those involved to determine if the opportunity criterion has been\r\nproperly granted or not (which in any case is questionable, since in such cases\r\nthe beneficiary is not being judged, against whom not even the criminal prosecution\r\nhas been exercised by the party that has the authority to do so), it is\r\na task that in cassation is indeed viable to perform, firstly because it is carried out <i>ex\r\npost</i> (relying even on the assessments of the trial court) and\r\nsecondly because it does not compromise the impartiality of the jurisdictional body, as\r\nwould happen if the trial court does it. They mention, by way of example, the\r\nresolutions No. 737-2001 and No. 136-2003 of the Sala Tercera, in which it was never\r\nindicated that the trial court must do that analysis before issuing\r\njudgment, or that it is responsible for controlling the decriminalizing effects of the\r\ninstitute.

Furthermore, in cases where this prior jurisdictional control has not been exercised (Nº 175-2003 and 114-2006, both from the Third Chamber), the only consequence derived from this has been the unenforceability of the declaration, but not the requirement for verification of said examination by the sentencing court. Finally, in pronouncement 795-2009 of the Third Chamber, given the failure to comply with the prescribed legal procedure and the absence of jurisdictional approval, it was stated that it is the task of the Public Prosecutor's Office to remedy those deficiencies and therefore, to seek the suspension of the hearing while the matter is resolved, from which it is inferred that it is not the trial court that must carry out the jurisdictional control and that those errors, as the Chamber suggests, can even be corrected during the adversarial proceedings. <b><i>xii)</i></b> After reiterating that jurisdictional control over the application of this mechanism is limited to compliance with the legal requirements, the majority vote points out that there is a third limitation for the trial court in the referred control, namely, the duty to guarantee its impartiality. They understand that it cannot rule on the issue of the lesser culpability of [Name 064] without simultaneously reasoning on the substantive right under discussion, or without comparing the conduct of the accused with that of the former, which entails anticipating judgment on the facts. They refer again to the minority vote of resolution Nº 6808-2002 of the Constitutional Chamber, in which Magistrate Cruz Castro specified that the court's impartiality would be weakened if it intervenes over prosecutorial powers, ruling on the eventual criminal liability of a person who, although benefited by an opportunity criterion, has not been accused. Therefore, they emphasize that the control that the trial court must carry out, distinct from that which the criminal judge who authorized the application of the mechanism had to carry out, is solely to establish the legality of the appearance of the “collaborating declarant”, verifying compliance with the legal requirements determined at the time such authorization was granted and which are described in numeral 22 of the Code of Procedure, namely, that there is an express request from the prosecution, that there is hierarchical authorization to carry out the procedure, and that there is jurisdictional approval, all of which are fully complied with in this case. The assessment of the declaration is a separate matter. <b><i>xiii)</i></b> Regarding the lack of reasoning in the resolution that authorized the opportunity criterion, the trial court reiterates that it is not its responsibility to decide whether the request for the opportunity criterion should have been admitted or rejected, nor whether the decriminalizing effects should arise from it. It insists that it has no standing to exercise control over the resolution of the aforementioned criminal judge, issued in observance of the guarantee of the natural judge, in a proceeding different from this one and regarding someone who is not accused in this case. It was the criminal judge who was responsible for controlling the legality of the decriminalizing effects of the opportunity criterion, so both out of respect for her independence—since the trial court lacks competence to evaluate her actions and judge whether or not they conformed to the legal prerequisites—and in application of the principles of impartiality and legality, which prevent assuming an unforeseen task, it is not feasible to address the objections raised by the defense and therefore, it is only appropriate to analyze the legality of the criterion as an antecedent to the statement of [Name 064], determining that this was processed in a separate file, through a prosecutorial procedure that had the endorsement of the hierarchical superior, which was presented before the judge of the intermediate stage who exercised the respective jurisdictional control and approved it. <u>Having analyzed these reasonings, the undersigned consider that they are not acceptable</u><b><i>.</i></b>The judges who subscribe to the majority vote make an effort to separate the declaration made by [Name 064] at trial from the procedure followed to apply an opportunity criterion in his favor; however, it is notorious that if this accused collaborated, it was for the purpose of fulfilling the agreement he had made with the Public Prosecutor's Office. The expectation of obtaining impunity in relation to a series of criminal acts that, at least in principle, could be attributed to him, is what incentivized [Name 064] to collaborate, waiving his right not to testify against himself (article 36 of the Political Constitution) and the same state of innocence that protects him (art. 39 of the Constitution). Therefore, we speak of intrinsically associated procedural acts, where the realization and, of course, the legitimacy of one (the testimony, a term used in a non-technical sense since it is not offered under oath) is conditioned by the legality of the other (the agreement). It is not ignored that the declaration of [Name 064], as evidence, was produced at trial; however, this in no way modifies the conclusion stated above, since if it took place, it was precisely because it was contemplated as such in the negotiation, from which it originates and derives. Having clarified the above, it is appropriate to make some general reflections on the principles that underpin our criminal procedure and that are essential to establish the scope of jurisdictional control over the application of opportunity criteria by the requesting body. We begin with an obvious point, namely, that both the agreement made by the Public Prosecutor's Office and the resolution that authorized it are acts that <i>are subject to the rule of law</i>. According to article 11 of the Political Constitution, every public body, being a mere depositary of authority, <i>is obliged to fulfill the duties that the legal system imposes upon it, and furthermore, it can only act to the extent that the system allows it</i>. Article 39 of the same Constitution indicates that no one shall be made to suffer a penalty except for a crime, quasi-crime, or misdemeanor, sanctioned by prior law and by virtue of a final judgment issued by a competent authority, <i>after the accused has been given the opportunity to exercise their defense and through the necessary demonstration of guilt</i>. From both norms, not only the principle of legality regarding crimes and penalties is deduced but also regarding the procedure, as the Criminal Procedure Code (hereinafter C.P.P.) states in its article 1, by indicating: <i>“No one may be sentenced to a penalty or subjected to a security measure, except by virtue of a proceeding carried out in accordance with this Code…”.</i> As can be seen, we speak of a provision that imposes the duty to respect procedural forms, not because these are valuable in themselves, but because they are designed to guarantee the rights of the parties, in particular those of the accused against whom the criminal action is exercised, and more specifically, against whom the so-called "crown witness" testifies. The majority vote states that the requirements contemplated in subparagraph b) of article 22 of the C.P.P. are both substantive and formal, and that the criminal judge cannot control compliance with the former. This is a position that this appellate court does not share, because it implies an indisputable breach of the aforementioned principle of legality. In general terms, two main models for the application of opportunity criteria can be identified. In one, opportunity is the rule, a guiding principle of criminal prosecution. As Maier points out, in this model applied, for example, in the United States of America, the principle of legality is disregarded to such an extent that the foundations of the criminal justice administration system would be threatened if this principle were adopted even partially: <i>“…the force of that conclusion is so vigorous that the power of selection resides in the Public Prosecutor's Office (also in the police that interacts with it in criminal prosecution) and is inherent to it, just as the acts of government of the Executive Branch are discretionary, based on the constitutional principle of separation of powers; the practical reason is also incontestable: with this weapon, the Public Prosecutor's Office governs the criminal process and its concrete form (through tools that, in accordance with the prosecuted person, allow it to vary the nature of the procedure, to shorten it: plea bargaining, guilty plea), and to harmonize its possibilities of prosecuting with efficiency (number of cases and complexity), with the personal and material resources of the justice administration in general, within the framework of a concrete and direct strategy for the better and more effective application of the law.”</i> (MAIER, Julio. <i>Derecho Procesal Penal</i>. Buenos Aires, Editores del Puerto s.r.l., 3rd reprint of the 2nd edition, 2004, p. 836). In the same vein, Fabricio Guariglia notes that, in this scheme, the discretionary powers of the requesting body are of such magnitude that in practice <i>“…it is the prosecutor who completely dominates the procedure. These powers are not limited to the possibility of freely withdrawing the accusation (prosecution), but also cover a broad spectrum of 'intermediate' acts, so to speak, such as the prosecutor's power to propose a reduction in the charges on which the accusation has been based or that appear in the police report; even, the Public Prosecutor's Office can confer immunity, in compensation for having collaborated with the government in the investigation…”</i>. (GUARIGLIA, Fabricio. “Facultades discrecionales del ministerio público e investigación preparatorias: el principio de oportunidad.” In: MAIER, Julio (Comp.). <i>El Ministerio Público en el proceso penal.</i> Buenos Aires, Ad Hoc S.R.L., 1993, pp. 89-90). In legal systems where the principle of discretion in the exercise of criminal action prevails, and not that of its mandatory nature, there is no problem whatsoever in accepting that an accused provides collaboration in exchange for obtaining certain benefits or rewards, for example, not being investigated or prosecuted for certain acts. Faced with this model, where the discretion of the requesting body is absolute, we find another, characteristic of States that have adopted the European continental system and in which, in consideration of the principle of legality, the exercise of criminal action <i>is a duty</i>. In this context, dispensing with the prosecution of a criminal act committed by an accused who collaborates with the investigation, or suspending the exercise of an already initiated action, is not a decision free of controversy. So much so, that while some consider that the collaborator must be criminally prosecuted and can only have their penalty mitigated or be exempted from it, for others (and the Costa Rican Criminal Procedure Code inserted itself into this position) it is legitimate to exclude the exercise of criminal action. Regarding the first position, Benítez Ortúzar tells us: <i>“The reward for 'procedural repentance', that is, the reward derived from the guilty party's collaborative counter-conduct in the investigation of the criminal act, in the abstract, can have a merely procedural transcendence, in those legal systems where, as occurs in Common Law States governed by the principle of opportunity in criminal action, translating into the possibility of not exercising criminal action or even, once initiated, suspending it. However, in States where the continental system of Law applies, in which the exercise of criminal action is mandatory, the reward for the procedural collaboration of the guilty party must be substantivized in material criminal Law, through specific penalty mitigations or even exemptions from it, albeit after a criminal trial in which the guilt of the repentant is determined.”</i> (BENÍTEZ ORTÚZAR, Ignacio Francisco. <i>El "colaborador con la justicia": aspectos sustantivos, procesales y penitenciarios derivados de la conducta del "arrepentido"</i>. Spain, Dykinson, 2004, p. 29. ProQuest ebrary. Web. 10 November 2015, p. 43). On the second stance, and specifically on the Costa Rican case, Houed Vega indicates: <i>“In accordance with what the German procedural ordinance establishes (arts. 153 et seq.), the Model Criminal Procedure Code for Latin America (arts. 230 et seq.), the 1987 Argentine Criminal Procedure Code project (art. 15), and the Guatemalan Criminal Procedure Code project (art. 10), it is admitted in certain clearly predetermined cases that the accusatory body, with the authorization and supervision of the jurisdictional body, may totally or partially dispense with criminal prosecution. The principle of legality in the exercise of criminal action will continue to prevail; however, the introduction of the principle of opportunity in some clearly defined cases, under jurisdictional control, allows for a significant rationalization of criminal prosecution, avoiding the intervention of state repression in cases where it is not really justified. As in the previous Code, in the current one, the guiding principle of the exercise of public criminal action is that of mandatory prosecution. Nevertheless, as a novelty, the cited Code institutes the principle of opportunity, by virtue of which it is possible for the Prosecutor to request from the respective Court the suspension or filing of the summary proceedings, if any of the pre-established legal criteria applies to the case. Thus, article 22 provides that the representative of the Public Prosecutor's Office, with prior authorization from the hierarchical superior, may request that criminal prosecution be dispensed with, totally or partially, that it be limited to one or several infractions or to one of the persons who participated in the act…”.</i> (HOUED VEGA, Mario. <i>El proceso penal en Costa Rica</i>. San José, Corte Suprema de Justicia, 2000, s.n.p., available at: http://biblioteca.icap.ac.cr). Ultimately, although the Costa Rican legislator contemplated the principle of mandatory criminal action (thus, art. 289 C.P.P.), it also provided <i>an exhaustive list of cases</i> in which it is plausible to provide something different, hence it is a <i>regulated opportunity</i>. In the case of subparagraph b) of article 22 of the C.P.P., which contemplates the case of the so-called <i>crown witness or repentant</i>, the application of the opportunity criterion is conditioned upon the fulfillment of a series of requirements: <b><i>i)</i></b> that the prosecutor requesting to totally or partially dispense with criminal prosecution acts with prior authorization from the hierarchical superior; <b><i>ii)</i></b> that it involves a matter of organized crime, violent criminality, serious crimes, or complex processing; <b><i>iii)</i></b> that the accused collaborates effectively with the investigation, providing essential information to prevent the continuation of the crime or the perpetration of others, to help clarify the investigated act or other related acts, or provide useful information to prove the participation of other accused individuals; <b><i>iv)</i></b> that the collaborator’s conduct is less culpable than the punishable acts whose prosecution they facilitate or whose continuation they prevent. <u>In this matter, the trial court, faced with a clear norm such as article 22 of the C.P.P., undertakes an unnecessary exercise in interpretation, to give it content it does not have</u>. Despite the provision not distinguishing between “formal” and “substantive” requirements, the <i>a quo</i> concludes that jurisdictional control can only address compliance with the former and that, therefore, it is not appropriate to examine whether the collaborator's conduct is less culpable than the punishable act whose prosecution it facilitates. By holding the above, it also acknowledges, though without saying it expressly, that the requirement is not such, since the requesting body can act with absolute discretion, which is unacceptable in a criminal procedure like ours, governed by the principle of legality and in which, it is insisted, by express provision of the legislator, <u>the application of any opportunity criterion is conditional upon the judge verifying compliance with <b>all</b> the formalities contemplated in numeral 22 C.P.P</u>. At this point in the exposition, it is essential to differentiate between <i>the principle of opportunity</i> reflected in art. 22 cited <i>supra</i>, and <i>the legal requirements for its application</i>, also described in that norm. One thing is the granting of a sphere of freedom to the requesting body so that, based on its prosecutorial policy, it chooses the matters with respect to which it deems it appropriate to dispense with or limit the exercise of criminal action, and another, distinct thing is the requirements that art. 22 demands to materialize that intention and within which is contemplated, in what is relevant here, the lesser culpability of the collaborating accused. Controlling the strict compliance with these is the province of the judge, which in no way implies an invasion of the functions granted to the Public Prosecutor's Office, since the discretion granted to that public body is regarding the selection of cases, accused persons, and crimes with respect to which it <u>requests</u> the application of the opportunity criterion, it being the case that on this petition, it must be the jurisdictional body that <u>decides</u>, after verification, as already stated, of the observance of <i>the legal requirements</i>—hence it is spoken of as a regulated opportunity. In this context, the division made by the trial court of the requirements contemplated in article 22 subparagraph b) C.P.P. is entirely unfounded, since both those it calls <i>substantive or evaluative</i> (namely, the lesser culpability that must correspond to the collaborator's conduct) and those it calls <i>formal</i> (express request from the prosecution with prior authorization from the hierarchical superior and jurisdictional approval), <i><u>are legal and formal requirements</u></i> (this to the extent that they are <i><u>formalities</u></i> described in legislation), indispensable for the application of the institute to proceed and whose verification has been entrusted to the judge. In summary, we speak of two different issues. On one hand, <i>the opportunity</i>—the scope of discretion of the requesting body in the selection of matters where it requests the application of the criteria—and on the other, the requirements that the legal system provides for that application to take place. Just as the Public Prosecutor's Office is free to determine when it is appropriate to dispense with or limit criminal prosecution in exchange for obtaining the collaboration of an accused, without anyone, public body or not, being able to force them to make an agreement if they do not wish to, it is the judge who is responsible for corroborating that in the cases selected by the requesting body, each and every one of the requirements contemplated by the legislator have been satisfied. Having clarified the above, we find that in this matter, the objections against the opportunity criterion applied to [Name 064] do not focus on the first aspect—in fact, no one disputes that the prosecution was free to choose [Name 064] to the detriment of other accused—but rather on the second, that is, on the fulfillment of the requirements to materialize that intention, an extreme that is subject to jurisdictional control. As for the body that must exercise that control, although in principle it must be the criminal judge, since the request must follow the procedure established for the conclusion of the preparatory procedure (art. 22, last paragraph C.P.P.), nothing prevents the trial court, or other bodies that hear the matter as a result of a challenge, from assuming that task. And indeed, in addition to the examination that the criminal judge must carry out, intended to determine the appropriateness and application of the criterion, we also have the control that the trial court must exercise <i>a posteriori</i>, intended to determine whether it is appropriate to receive the statement from the repentant, as well as the control that the appellate court and the cassation chamber itself could eventually exercise, with the purpose of establishing whether that statement can produce legal and evidentiary effects in relation to the subject against whom it is made. Therefore, the control carried out by the criminal judge is not exclusive of that which other jurisdictional bodies may carry out, whether ex officio or at the request of a party. Regarding this last point, note also that the Criminal Procedure Code indicates that absolute defects, as well as relative defects that have not been validated (art. 177 and 178 C.P.P.) <i><u>must be remedied</u></i>, a task that must be carried out <i><u>without taking the process back to periods already precluded</u></i> (art. 179 of the same legal body), the above except for expressly provided cases, for example, a remand ordered in cassation. From this, a general rule is extracted that, dealing with absolute or non-validated relative defects, the legal operator has <i>a duty</i> to correct them—the norm is prescriptive—and this must be done, except for the exceptions also contemplated in legislation, <i>without taking the process back to already completed stages</i>, which necessarily implies that the challenge against a defective act can be replicated in multiple procedural phases. Regarding this mechanism, Gilbert Armijo Sancho points out: <i>“Regarding the procedure in the NCPP, we can say, roughly speaking, that defective procedural activity is liable to be challenged before the Court of the Intermediate Procedure. It is at this stage that all aspects relative to matters not remedied in the preparatory stage must be resolved, provided they have not been validated by the inertia of the parties (arts. 15 and 317 subparagraph a. NCPP), and in case of not finding a positive response, these defects may be challenged at trial via an incidental path (art. 342 NCPP), and as a last alternative, they may be invoked in cassation or review when they involve aspects that imply the violation of constitutional guarantees… In cases referring to procedural defects, it is required as an admissibility requirement that the party has made a timely protest or has requested remediation, with the exception of absolute defects…”</i> (ARMIJO SANCHO, Gilbert. “La actividad procesal defectuosa.” In: <i>Derecho procesal penal costarricense</i>. San José, Asociación de Ciencias Penales de Costa Rica, Tomo II, 2007, pp. 230 and 231). The Constitutional Chamber has also repeatedly pronounced on the form of horizontal control alluded to above, as opposed to the vertical control that corresponds to appeals. For example, in resolution Nº 1999-01550, from 3:15 p.m. on March 3, 1999, when resolving an action of unconstitutionality against articles 437 and 315, in relation to 311, all of the C.P.P., in which it was challenged that such norms omitted the possibility of appealing an order that denies a dismissal, it indicated: <i>“Non-existence of an appeal regarding the resolution that dismisses an incident of nullity… However, it is possible to affirm that the non-existence of an appeal regarding a resolution that denies an incident of nullity does not violate any element of due process. The legislator is not obliged to establish a second instance for all resolutions and actions of the process. The mere existence of the appeal remedy does not in itself guarantee compliance with due process. Hence, the obligation to enable a second instance for the accused, from a human rights protection perspective, relates to the conviction judgment, as established by article 8, second paragraph, subparagraph h) of the American Convention on Human Rights. For its part, article 437 of the Criminal Procedure Code merely indicates which resolutions are appealable. If some irreparable harm occurs, said norm enables the appeal despite it being a resolution that has not been expressly declared appealable. If the resolution does not produce irreparable harm, one can proceed as provided in articles 175 and following of the same Code, that is, the defect can be validated or remedied. Furthermore, as indicated in the preceding whereas clause, the non-existence of an appeal in relation to a resolution that does not terminate the matter does not entail any harm to the fundamental guarantees of the parties, since the matter may be raised again in later stages and even in cassation in the case of a conviction. Therefore, the challenged norm does not cause any violation of due process, and for that reason, the action must also be rejected on the merits regarding that particular point.”</i> In summary, horizontal control derives from the very structure of our criminal procedure. Except for the inherent limitations extracted from articles 175 and following of the Criminal Procedure Code (e.g., that it concerns a defect already validated for any of the reasons indicated in art. 177 C.P.P.), the parties can raise challenges again in later stages, and the corresponding court, depending on the procedural phase, will be obliged to resolve it. In addition to the foregoing, we have that the Third Chamber of the Supreme Court of Justice has peacefully assumed that the jurisdictional bodies—the criminal judge, the trial court, the criminal sentence appellate courts, or even the Chamber itself—are competent to examine whether or not a conduct is less culpable than others, for the purpose of determining whether an opportunity criterion has been correctly granted. For example, in resolution Nº 2001-00737, from 9:10 a.m. on July 27, 2001, it was indicated: <i>“The core issue on which a judgment will have to be made to determine whether the criterion under discussion may be used is the culpability of the specific conduct of the 'collaborator' in the act under investigation or in the act related to it, and its lesser entity when compared with that of the other persons in whose prosecution cooperation is provided. The defense errs, therefore, in generically affirming that the opportunity criterion is inapplicable to co-perpetrators or participants in the same crime under investigation, since the law is clear in providing the contrary. In the present case, the Public Prosecutor's Office maintained the thesis—admitted by the a quo in the trial judgment—that the witness A.J.A. intervened in the act by hitting a third party whom he left unconscious (G.J.V.), but whom he did not kill; while the other persons attacked two other victims causing their death. In this context, even if the defender's interpretation were admitted (in the sense that J. actively intervened, controlling the act in the two homicides that other subjects materially executed), the fact is that nothing prevented applying the opportunity criterion in his favor, since the culpability of his conduct (which, ultimately, only produced slight incapacity in G.J.) is much less than that of the actions attributed to the other participants in the events, who indeed would have directly caused the death of J.B.P. and N.V.C.”</i>. Something similar occurs in judgment Nº 00795-2009, from 2:35 p.m. on June 16, 2009.

In this case, the Third Chamber concluded both that the acts committed by the collaborator may be different from the act whose prosecution is facilitated, and that the lesser reproachability corresponding to the former is one of the essential prerequisites that the judge must verify when approving the request for application of the prosecutorial discretion criterion (criterio de oportunidad): <i>“The prosecutorial discretion criterion based on the cooperation that one of the participants in the crime provides to prosecute the others (or those of another more serious illicit act), constitutes a way of extinguishing the criminal action regarding the collaborator, it proceeds in cases of organized crime, violent criminality (such as the homicide investigated here), serious crimes or complex proceedings and demands two other essential conditions: that the conduct of the collaborator is less reproachable than the punishable acts whose prosecution it facilitates or whose continuation it prevents and that the information provided satisfies the intended expectations. <u>Of course, the cooperator may be a participant in the same crime to be prosecuted (procedurally: a co-defendant) or the perpetrator of another less serious punishable act</u>. The procedure for applying the prosecutorial discretion criterion in this hypothesis includes the authorization of the prosecutor's hierarchical superior (e.g., the deputy prosecutor, with respect to the assistant prosecutor), who must request the judge of the intermediate stage to approve the prosecutorial discretion criterion. <u>If the judge admits it, after verifying the concurrence of the essential prerequisites (the type of criminality, the lesser reproachability of the collaborator’s conduct, and the authorization of the competent prosecutor of the Public Prosecutor's Office)</u>, they will decree the suspension of the exercise of the public criminal action, which will remain in that state until fifteen days after the finality of the sentence handed down against the other defendants (that is: those intended to be sanctioned with the collaborator’s help), at which time a definitive decision must be made on whether the criminal action is extinguished… In this matter, the defense counsel questions the trial court's agreement, which convicted three of the homicide participants, to refuse to take the testimony of the “collaborator” female defendant and, rather, to order her detention and declare the signed cooperation agreement illegal. On this point, it must be remembered that what happened was due to the actions and omissions of the Public Prosecutor's Office, which limited itself to signing the agreement but failed to comply with the other procedures that were applicable (processing the authorization of the hierarchical superior and the judge's approval to declare the criminal prosecution suspended). From this perspective, no objection can be made to the act of the aforementioned trial court of rejecting the proposed testimony, since the truth is that such request sought nothing other than to receive as a witness (even without oath) a person who, according to the case file, was rather a female defendant who had undergone an investigative statement, but whose legal situation had not been defined through any jurisdictional pronouncement. As stated, the suspension of the exercise of the criminal action against Y. was never decreed and, in fact, the agreement had not been submitted for a judge's examination, such that the trial court was the first jurisdictional body that had contact with the issue. Despite the foregoing, nor can all the trial court's actions be endorsed, insofar as they meant declaring the illegality of the agreement, since it would have been sufficient to reject the testimony pointing out the non-compliance with the prescribed legal procedure and, above all, the lack of jurisdictional approval, such that it was incumbent upon the Public Prosecutor's Office to correct the deficiencies it incurred and seek the suspension of the oral trial while it processed the hierarchical and judicial approval of the agreement, so that the “collaborator’s” testimony would finally be taken in the trial against the other participants in the crime, or else, in case those approvals were denied, proceed with the criminal prosecution of the defendant. It is not the trial court's task to declare the ineffectiveness of the collaboration agreement signed by a person who is presented as a witness without an oath (or, to be more precise, a defendant or co-defendant whose prosecution is suspended) invoking for that purpose the content of the evidence produced before hearing the account that the deponent would give. What it can do is refuse to take the testimony if, as occurred here, the legal procedures established for applying the prosecutorial discretion criterion were not fulfilled. On the other hand, it is necessary to highlight that all the problems raised in this case and in relation to the female defendant are the exclusive responsibility of the Public Prosecutor's Office…”.</i> Finally, in judgment No. 01712-2013, of 2:21 p.m. on November 22, 2013, the cassation court affirmed that said control must also be carried out by the court of appeal of the criminal sentence: <i>“<b>I. </b>By resolution number 2013-1330, of eleven hours nine minutes of September twenty, two thousand thirteen, this Chamber admitted for substantive study, the cassation appeal filed by attorney Jorge Pérez Ramírez, … In the sole ground in favor of the defendants I.A.C., W.M.G., and J.C.Q., he alleges non-observance of procedural legal precepts, specifically, of the provisions of articles 142 and 459 of the Code of Criminal Procedure. In the defense counsel's opinion, the Court of Appeal did not rule on all the aspects that were expressly challenged. In that sense, he points out that the incorrect assessment of article 22 of the Code of Criminal Procedure was claimed, considering that the participation of the person granted a prosecutorial discretion criterion was not less reproachable than the conduct attributed to the other defendants; however, he considers that the analysis made by the Court of Appeal was limited to a review of the reasons why credibility was granted to said witness, and to agreeing with the thesis set forth in the judgment, without analyzing the substantive issue…<b>II. The claim is admissible. </b>After conducting a careful study of judgment number 92-2013, issued by the Criminal Trial Court of the Third Judicial Circuit of San José, at eleven o'clock on February twenty-fifth, two thousand thirteen; as well as of resolution number 2013-1448, of eleven hours three minutes of July fifth, two thousand thirteen, of the Court of Appeal of the Criminal Sentence of the Second Judicial Circuit of San José, this Chamber considers that the private defense is correct in the claim filed. For purposes of beginning the analysis on the merits of this matter, it is necessary to start from the factual framework that the Trial Court deemed proven: “<b>1.</b></i> <i>On April 10, 2010, at approximately 6:00 p.m., the victim J.G.A.Z., alias “Cuadrado”, was in San José, Alajuelita, Concepción Arriba, Residencial Los Almendros, outside Bar Betos, consuming liquor. <b>2.</b> In the same place, on the date and time mentioned, the female defendant and manager of said bar W.T.M.G. was present, accompanied by the co-defendant D.A.S., ID No. “D.A.S.”, who argued with the victim over a previous problem, to the point of threatening him with death. <b>3.</b> Immediately afterward, the defendants M.G. and A.S., acting by common agreement and with the purpose of killing the aggrieved party A.Z., contacted by phone the also defendant I.A.C., alias “Noringa”, whom they offered the sum of two million colones to carry out said homicide. <b>4.</b> By virtue of the foregoing, the co-defendant I.A.C., acting by common agreement and according to the plan previously established with the defendants W.T.M.G. and D.A.S., contacted the also defendants G.A.Ch.N., alias “Chava” (against whom separate proceedings are pursued for these acts in case file 11-000052-1042-TP with whom a prosecutorial discretion criterion was negotiated) and J.J.C.Q., to execute the homicide of J.A.Z. <b>5.</b> As part of the previously established plan, the defendants I.A.C., G.A.Ch.N., and J.J.C.Q., boarded in the vicinity of the former Fuerza Pública Delegation of Concepción de Alajuelita, the white Hyundai Accent vehicle, license plates…, which was driven by the co-defendant J.C.Ch.M., alias “Pipo”, who, unaware of the previously agreed payment, but knowing that a homicide was going to be committed, was accompanied by the also defendant M.J.A.S., alias “Coco” (against whom separate proceedings are pursued for these acts in case file 12-000012-1042-TP), brother of D.A.S., who moved to the place where the victim was, with the purpose of killing him. <b>6.</b> At approximately 11:30 p.m. that same day, the victim A.Z. was outside Bar Betos, at which moment, the defendants W.T.M.G. and D.A.S., always acting by common agreement, according to the plan previously established and with a clear distribution of roles, communicated by phone with the co-defendant I.A.C. and informed him of the exact location of the victim, in order to ensure his death. <b>7.</b> Immediately afterward, once these defendants arrived in the vicinity of Bar Betos, the accused G.A.Ch.N. and J.C.Q. got out of said vehicle, at which moment, the co-defendant J.C.Ch.M., according to the plan previously established to ensure the subsequent flight from the place, parked approximately <st1:metricconverter style=\"BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom\" tabIndex=\"0\" ProductID=\"50 metros\" w:st=\"on\">50 metros</st1:metricconverter> north of the point where the victim was, a place where he waited for them while they carried out the homicide, in the company of the co-defendants M.A.S. and I.A.C., who beforehand, had given them the respective operational instructions, to execute said crime. <b>8.</b> Immediately afterward, the defendants G.A.Ch.N. and J.C.Q., acting by common agreement with the also defendants W.M.G., D.A.S., M.J.A.S., I.A.C. and J.C.Ch.M., approached the victim and without any justification and with total disregard for his life, shot him on multiple occasions with firearms, resulting also injured the co-defendant J.J.C.Q…<b>10.</b> As a consequence of the illicit action of all the defendants, the victim suffered seven wounds produced by firearm projectile, located in the thorax, abdomen, right buttock, right upper extremity and left lower extremity, which caused his death that same day, at Hospital San Juan de Dios, the cause of death being: Wound by firearm projectile in the thorax with cardiac laceration with left hemothorax and hemopericardium and the manner of death: Homicide from the medical-legal point of view.” In this way, for the Trial Court, it was duly accredited that the accused G.A.Ch.N. and J.C.Q. were the material perpetrators of the homicide, because in the distribution of roles previously agreed among all the co-defendants, it was the two of them who agreed to execute the charged criminality, shooting on various occasions with the firearms they carried, with the aim of ending the victim's life. Now then, the Public Prosecutor's Office decided to negotiate a prosecutorial discretion criterion with the co-defendant G.A.Ch.N., who collaborated with his statement, as a crown witness. This deal was objected to by the defense of the other accused, pointing out that the legal prerequisites for the applicability of the prosecutorial discretion criterion were not met, since the defendant had the status of co-perpetrator in the charged acts, he was the material executor of the homicide and his conduct was as reproachable as that of the other co-perpetrators. The objection for defective procedural activity was resolved in the first whereas clause of the judgment issued by the Trial Court (visible from folio 1223 of volume II of the investigation file). In summary, said objection was dismissed, for the following reasons: 1) Article 22, subsection a) of the Code of Criminal Procedure grants the Public Prosecutor's Office the discretion to totally or partially dispense with criminal prosecution, when the accused renders a statement against other participants in the act, with the aim of obtaining a benefit, in relation to the reproach of their responsibility in the charged crime. 2) The negotiation escapes the control of the other defendants, it is not a right that belongs to them and it is a private deal between the Public Prosecutor's Office, the defense counsel and the collaborator, therefore, the agreement does not have the obligation of publicity. 3) Regarding the degree of reproach of the conduct attributed to the crown witness, it stated: “The factual framework that has been demonstrated and finds support in the accusatory piece, establishes that due to criminal problems that existed between a brother of the victim and a brother of the defendant, frictions had arisen that culminated in the decision of the defendant D.A.S., to pay a sum of two million colones with the sole purpose of ending J.'s life, which found justification in the insolence that the latter displayed at A. S.'s business, in relation to the supposed rights of his brother, due to the debts of A. S. and a brother of his, with him. Thus, on April 10, 2011, and after one of these problems, A. S. and the co-defendant W. M. G., taking advantage of the former's economic advantage, devised the death of the victim, deciding to pay third parties a sum of two million colones for that execution. In this way, it is feasible to conclude that those who had control, the decision of that act, were A. S. and M. G., who assumed the primary role in the act, since they were the ones who decided to hire the co-defendant I.A., so that he in turn would hire J.J.C.Q. and the defendant and crown witness, Ch.N., to carry out the death of the victim, furthermore the defendant J.C.Ch. participated in the act, who was in charge of facilitating and driving the vehicle, which was used to transport those who would be in charge of committing the criminal act. It is denoted then, that the planned homicide was even hierarchically structured based on those who in that small organizational structure, were those who decided and paid for the commission of the homicide. On a second plane, as we have said, we find A. who was the contractor-intermediary, and further down, it is even possible to find those who carried out the act, who in the Court's opinion can be seen as replaceable pieces of that plan. The Court considers then that the participation attributed to Ch.N., it is indeed possible to frame it within a lesser reproach, this from the perspective of the organizational structure, where he followed orders from others, which reflects his lesser relevance in the acts. It is important to indicate that in relation to the decision, of which of the defendants, the prosecutorial discretion criterion should be granted, it must be concluded that this is a power that the Public Prosecutor's Office holds by law and that it will depend on the lesser reproach and that the information provided is sufficient, according to the prosecutorial criterion, without the Court being able to observe any defect, in the Public Prosecutor's Office choosing one defendant to the detriment of others, to benefit them with the non-prosecution of their criminal responsibility in the acts.” For its part, the Court of Appeal of the Criminal Sentence of the Second Judicial Circuit of San José, in resolution number 2013-1448, of eleven hours three minutes of July fifth, two thousand thirteen, upon hearing that same argument as one of the grounds of the appeal against the conviction, indicated: <b>“i.-</b></i> <i>Firstly, the defense has claimed against the Public Prosecutor's Office's agreement to grant a prosecutorial discretion criterion to one of those involved in the case, arguing that the content of article 22 subsection b) of the Code of Criminal Procedure was exceeded, as it was applied to the one who committed the most serious action of shooting at the victim. This issue was extensively addressed in the judgment (fs. 1223-1226), pointing out, that the Code of Criminal Procedure has granted a broad margin of discretion to the Public Prosecutor's Office to settle within the criminal process, evaluating the relevance in each case, according to the orientation of criminal policy. It also indicated that the agreements are not public nor do uninterested third parties participate in the transaction, to the point that it is handled in a separate and independent file. The judgment also points out, that according to what was demonstrated, the decision-making power to order the victim's death was in the hands of D.A.S. and W.M.G., so that it is they who correspond greater reproachability for the act, and to a lesser hierarchy to G.Ch.N., notwithstanding that he was an executor of the orders given. This Court has examined the point and agrees with the thesis set forth in the judgment, that those who give orders and pay the reward for the victim's death and make others obey, have greater reproachability than the executors themselves, so that we are before one of the prerequisites that authorizes the negotiation of prosecutorial discretion criteria in organized criminality.” (see folio 1501 front and back). Regarding the above reasoning shared by both the Trial Court and the Court of Appeals, it is appropriate to make the following reflections: The principle of prosecutorial discretion (principio de oportunidad), contemplated in the procedural law as an exception to the legality principle, presupposes a series of sine qua non conditions for purposes of applicability, according to the provisions of the legislator. In this way, in all cases, the prior authorization of the hierarchical superior of the prosecutor promoting the agreement is required, according to the different factual assumptions authorized by the legislator. The first of them, contemplated in subsection a) of article 22 of the Code of Criminal Procedure provides: “It involves an insignificant act, of minimal culpability of the perpetrator or participant or with a meager contribution by the latter, unless there is violence against persons or force against property, the public interest is affected or the act has been committed by a public official in the exercise of their duties or on occasion thereof.” According to the legal basis set forth by the trial judges in the conviction judgment…, this is the applicable factual assumption for the present matter. However, none of the requirements set forth therein are met in the case sub examine. This Chamber considers that the crime of homicide is not, from any point of view, an insignificant act. The figure of the material perpetrator of the homicide contravenes the concept of “minimal culpability” or “meager contribution”. Taking a person's life is the maximum representation of violence against a human being and, therefore, directly affects the public interest. Consequently, the proven facts of the judgment fail to comply with all the legal requirements enshrined in this factual hypothesis. If we continue to the next substratum, contained in subsection b) of the article in question, it establishes: “It involves matters of organized crime, violent criminality, serious crimes or complex processing and the defendant effectively collaborates with the investigation, provides essential information to prevent the crime from continuing or others from being perpetrated, helps to clarify the investigated act or other related ones or provides useful information to prove the participation of other defendants, provided that the conduct of the collaborator is less reproachable than the punishable acts whose prosecution it facilitates or whose continuation it prevents…” Based on the foregoing, the acts charged here could be adapted to the guidelines stipulated on violent criminality, serious crimes, effective collaboration, helping to clarify the investigated act and providing useful information to prove the participation of other defendants, because there is a statement from the crown witness that for the purposes of the sentencing Court was sufficiently clear, convincing and truthful, about the participation of the other accused, as well as regarding the motive and the dynamics developed, from the planning to the execution of the crime, capable of accrediting jointly with the rest of the incriminating evidence, the attributed acts. However, the law provides that in addition to those requirements, “the conduct of the collaborator is less reproachable than the punishable acts whose prosecution it facilitates or whose continuation it prevents.” It is regarding this last requirement, that the defense directs its claim and it is precisely on which there must be a careful analysis, in order to determine the legality and applicability of the prosecutorial discretion criterion that was granted to G.A.Ch.N., in the capacity of what doctrine calls a “repentant defendant (imputado arrepentido)” or “crown witness” of the prosecuting entity. Without losing sight that it is a criminal structure, in which there are clearly delimited roles among the participating subjects, a logical and analytical examination must be carried out, aimed at determining the essentiality and relevance of the conduct of the agent who seeks to benefit from the application of this institute. Based on the effective concretion of the action attributed to them and the essentiality and transcendence in the harmful result, the licit and proportional parameters are set that would demarcate the agreement between the parties; namely, Public Prosecutor's Office, defense attorney and repentant defendant or collaborator. <u>Although the law grants the prosecuting entity a broad margin of negotiation and even the power to totally or partially dispense with criminal prosecution, it is also true that it sets a limit for the exercise of that discretion, as it warns that the beneficiary must have a conduct less reproachable than that attributed to the other co-participants of the act that is sought to be ceased or proven</u>. Likewise, it gives the Public Prosecutor's Office the possibility of grading the granting of that benefit, in order to assess the reproachability of the conduct against that of the other co-participants and the effectiveness of the collaboration provided in the investigation, as well as in obtaining the conviction. The grading of the benefit offered to the crown witness is directly related to whether criminal prosecution is partially or totally dispensed with and, therefore, with the elimination or reduction of the penalty to be imposed. Thus, an action deployed by a subject accused of actual or personal favoritism in the criminal organization will not have the same level of reproach as the one who performs the action as an accomplice to the more serious crime, nor does it resemble that executed by the perpetrator or co-perpetrators. <u>Therefore, there must be a correlation between the benefit offered and the degree of reproachability of the conduct, in such a way that a rational proportion is established to determine whether criminal prosecution is completely dispensed with or whether, on the contrary, the illicit act is sanctioned in a less rigid manner, making the proposal attractive for the repentant defendant, but at the same time, appropriate for the ends of justice, thus avoiding that the same measure (of totally dispensing with criminal prosecution) is indiscriminately applied to all types of participants in a crime, bypassing the legally established requirements for the application of this institute. It is for this reason that we consider the agreement made between the representatives of the Public Prosecutor's Office, the collaborating defendant and his legal representative illegitimate, because there is no proportionality between the benefit received and the degree of participation in the charged acts. Contrary to what the judges state in the conviction judgment and in the appeal resolution, the conduct attributed to the accused Ch.N. is highly reproachable; since, acting in association with the defendant C.Q., they cause the death of the victim here, that is, they carry out the act, without any justification whatsoever, other than the interest in receiving an undue pecuniary benefit.</u> To opt for a different criterion is to accept that the figure of contract killing is of insignificant and even null censure, as in the case at hand, in which the conduct deployed by one of the co-perpetrators is made irrelevant. The Public Prosecutor's Office for its part, has the legal power to negotiate with the crown witness, the imposition of a penalty lower than that provided for the other co-participants, thus avoiding the impunity of a conduct that holds a high degree of reproach. It is also contradictory, that while the Prosecution totally dispenses with criminal prosecution against Ch.N., for that same conduct and, therefore, with the same degree of reproach, C.Q. is sanctioned with twenty-five years in prison, as the responsible perpetrator of the crime of qualified homicide, just like the penalty imposed on the defendants who were accused of being the intellectual authors… and the mediator who hired the hitmen and made the respective charge for doing the job… In this sense, it is incompatible to point out that the conduct of one of the material perpetrators of the act is less reproachable, to justify the application of the prosecutorial discretion criterion and, on the other hand, sanction all the other defendants with the same penalty, evading all the prior reasoning on the reproachability of the conduct, according to the hierarchical structure of the criminal organization and the roles entrusted to each member.”</i> <i>This contradiction in the judges' reasoning violates the logicality and legality of the judgment, because it is not possible to admit that one conduct is less harmful than another and the sanction is applied equally to all. Nor is it acceptable, that one argument is used to legalize an agreement and with another totally opposite, such a high prison sentence is imposed, when the act judged is identical in both cases. Finally, having based the entirety of the judgment on the merits on the version rendered by the crown witness, on the occasion of a prosecutorial discretion criterion that fails to comply with the legally established requirements for its applicability, judgment number 92-2013, of eleven o'clock on February twenty-fifth, two thousand thirteen, issued by the Criminal Trial Court of the Third Judicial Circuit of San José and the trial that preceded it are annulled; as well as resolution number 2013-1448, of eleven hours three minutes of July fifth, two thousand thirteen, issued by the Court of Appeal of the Criminal Sentence of the Second Judicial Circuit of San José, in which the judgment on the merits was confirmed. It is ordered to remit this matter as soon as possible to the Court of origin, so that with a new composition, the retrial is carried out...”. </i>The previous quote is extensive, but essential to gauge the scope of jurisdictional control that, according to the cassation court, must be made of the issue of reproach and which supports this chamber's thesis. We are speaking of judgments where no objection whatsoever has been made to examining the point, where it is expressly and implicitly recognized that this analysis can be reiterated in different phases of the process and above all, where the thesis of the <i>a quo</i> is discarded, in the sense that this particular requirement contemplated in subsection b) of art. 22 C.P.P., at any stage of the procedure, is exempt from jurisdictional control. It is also important to refer to <u>what the Constitutional Chamber said regarding this extreme</u>. According to the first instance female judges, the constitutional court through binding jurisprudence prohibited the judge from controlling whether the collaborator's conduct is less reproachable than the criminal acts attributed to other defendants. Such statement is not accurate. In resolution No. 12090, of 2:40 p.m. on July 31, 2009, the Constitutional Chamber ruled on an unconstitutionality action filed by [Name 033] against articles 22 and 23 of the Code of Criminal Procedure.

The action was rejected on the merits and, in what is relevant here, it was stated: <i>“</i> <i><u>On the other hand, Article 22 in fine is clear in indicating that the request for the application of an opportunity criterion must be raised before the court, which is the one that ultimately decides, exercising due legality control. Therefore, what was indicated by the plaintiff, regarding there being no control by the judge of guarantees, is not true</u>. That control cannot be understood, in any way, in the sense that the judge can replace the prosecutors' decisions related to the criminal-political opportunity and advisability of initiating or continuing with the criminal prosecution. <u>As will be analyzed, judicial control must be limited to the legal requirements, but it cannot assess aspects that are specific to the exercise of the prosecution function. In order to achieve the objectives pursued by the opportunity principle, it must be administered by the body in charge of state criminal prosecution</u>. It should be added that the fact that the right to appeal the resolution approving the application of an opportunity criterion by those who appear as accused in the same case is not provided for does not violate due process or the right of defense, 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 not, in relation to the rest of the evidence, and furthermore, it may be extensively questioned by the parties in the debate. 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 introduction or assessment of the evidence...”. </i>Later, in that same resolution, it was also affirmed: “ <i>VII. On the principle of judicial independence. The plaintiff indicates that the questioned rules infringe the principle of judicial independence, because the Public Prosecutor's Office subordinates the judge, who truly disappears from the criminal scene and is reduced to fulfilling a merely formal task, which injures their independence, weakening the protection of the rights of the other accused, especially the right to defense, to a fair trial, and to due process with all guarantees.- In relation to this aspect, it must be recognized that the Public Prosecutor's Office must be the axis of any markedly accusatory system. <u>In the application of opportunity criteria, it is the prosecution body that must decide the advisability and necessity of its application, as it has been attributed the competence to design criminal prosecution policies, exercise criminal action, and carry out the preparatory investigation. As provided by the legislator, the judge must exercise legality control over the application of such measures, but not over the opportunity and advisability</u>. Such a division of functions, far from violating the principle of judicial independence, rather strengthens it, given that the jurisdictional function must be restricted to controlling respect for the parties' rights and guarantees, and not to deciding on the accusation. <u>On this subject, the Chamber ruled in judgment 2662-01 at 3:30 p.m. on 4-4-01, where a judicial consultation was resolved regarding the constitutionality of the deputy prosecutor's decision that obligated the judge to admit the application of an opportunity criterion due to insignificance of the act and to order the definitive dismissal. In what is relevant, it was indicated</u>: “Consequently, it is up to the Prosecutor to decide regarding the advisability of applying or not applying an opportunity criterion. The parties may request its application, within the five-day period provided for in Article 316 of the Criminal Procedure Code. However, the court of the intermediate procedure cannot accept that request without the approval of the Public Prosecutor's Office, which as stated, must have the approval of the hierarchical superior. It is a duty and attribution of the Attorney General to establish the general policy of the Public Prosecutor's Office and the criteria for the exercise of criminal action (Article 25 subsection a) of the Organic Law of the Public Prosecutor's Office). <u>Consequently, in accordance with that structure, the analysis that the court must carry out to authorize the application of an opportunity criterion must be limited to verifying compliance with the formal requirements established by the legislator. 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 in charge of the exercise of criminal action; it is to them that the responsibility is attributed, because that entails denaturalizing – within the system that has been opted for (the accusatorial one) – the judging function that corresponds to them, being obliged to wait to be duly prompted by the requesting body in order to act</u>. <u>In the case of Article 22 subsection a), corresponding to the criterion of insignificance of the act, whose application gives rise to this consultation, the judge must verify that the act was not committed by a public official in the exercise of their duties or on the occasion of them. The determination of whether it is an act that affects the public interest or not corresponds to the Prosecutor because it is an evaluative criterion that has to do with the exercise of the State's criminal policy, to be weighed in each specific case by the representation of the Public Prosecutor's Office. The foregoing, because it is a clear fact that in all crimes of public action, the affectation of a public interest is involved, hence, society at the time considered it necessary to criminalize them as such. It is the Public Prosecutor's Office – it is reiterated – that must make the judgment regarding the advisability, utility, and necessity of criminal prosecution in each specific case</u>.” …It is clear then that it is the Public Prosecutor's Office and not the judge, who is responsible for deciding on the advisability or opportunity of applying the criteria provided for in Article twenty-two of the criminal procedure code. This decision is an expression of the prosecutorial power and responds to a prosecution policy attributed exclusively to the prosecution body. <u>However, the legislator established a legality control that the judge must exercise regarding compliance with the requirements contained in the very norm being challenged. It is not a decision that lacks judicial assessment, although in some eminently accusatorial systems, such control is not required, without it having been considered that such liberality violates fundamental rights</u>.” </i>(The underlining is not from the original). For those subscribing to this resolution, the preceding precedent cannot be interpreted in the manner set forth in the majority vote. In the first place, <u>the Constitutional Chamber did not indicate that jurisdictional control should be circumscribed to part of the requirements provided for in Article 22 subsection b) of the Criminal Procedure Code.</u> Quite the opposite. It affirmed that in our country, unlike what happens in other latitudes (where a model has been adopted according to which the opportunity principle is the rule and the decisions adopted by the Public Prosecutor's Office are not subject to judicial assessment), the judge is the one called upon to determine whether the requirements contemplated in the legal system are met. This, indicates the Constitutional Chamber, does not empower the judge to assume tasks that do not correspond to them, for example, to assess the advisability or opportunity of dispensing with criminal prosecution in a specific case. And it is that indeed, the decision to prosecute or not a certain conduct is the province of the Public Prosecutor's Office; however, this does not mean that in that sphere it has maximum discretion. Its decisions are subject to the law – since it can only dispense with criminal prosecution and promise advantages in the terms indicated by it, cf. Art. 22 and 96 C.P.P.-, being the task of the jurisdictional body, also by express provision of the legislator, to guarantee respect for the legal system. It is important to add that although the Constitutional Chamber indicated that there are assessments that only the Public Prosecutor's Office can make (e.g., establishing that in a particular case the effect on the public interest was insignificant in the terms indicated by Art. 22 subsection a) of the C.P.P., cf. judgment No. 2662-01 mentioned in No. 12090-2009 reproduced above), this does not allow interpreting that in the case of subsection b) of numeral 22 – that is, of another case – the Public Prosecutor's Office can determine <i>without any jurisdictional control</i> that the collaborator's conduct is less reprehensible than other punishable acts, or affirm, as the trial court does, that this position is the one assumed by the highest constitutional court of our country, leaving aside that it has only expressly indicated <u>that the advisability of applying or not applying the mentioned legal institution is the province of the requesting body, a position that is shared without reservation, because indeed, only the Public Prosecutor's Office can decide if it is advisable to dispense with the criminal prosecution of an accused in a particular case, in exchange for their collaboration.</u> The foregoing, it is insisted, does not mean that it can negotiate with any accused in any case, or negotiate any benefit, to the extent that its request, to be accepted, depends on verification of compliance with the requirements defined by the C.P.P. Obviously, neither the criminal judge, nor the trial court, nor the bodies hearing the matter on appeal, will assess the opportunity of the Public Prosecutor's Office's decision (based on its prosecution policy), but they must corroborate, because the legal system so provides, the strict compliance with its requirements (legal and constitutional), which is something different. In the same way, it will be the Public Prosecutor's Office that must assume the consequences of deciding in that sphere incorrectly, because if it negotiates with an accused whose statement, besides being essential, is implausible, it is probable that the result of the process will not be the desired one, just as if it negotiates with an accused who deserves greater reproach, it is also plausible that at any procedural stage and before the protests of the parties, the negotiation will be considered illegal. In summary, based on the same precedents cited by the <i>a quo</i> and in which <u>the importance of legality is underlined as a guiding principle for the actions of any public body</u>, this chamber concludes that the court, regardless of the stage the procedure is in, is obliged to verify compliance with <i><u>all</u></i> the requirements contemplated in Article 22 of the Criminal Procedure Code, therefore including what is related to the lesser reproach that must correspond to the conduct of the collaborating accused whose criminal prosecution is dispensed with. For the judge to appreciate this point, the criminal prosecution policies designed by the Public Prosecutor's Office are irrelevant, policies that do acquire relevance for the purpose of establishing, for example, the cases and accused in relation to which that body requests the application of a certain criterion, a matter in which it certainly has a considerable margin of freedom. In this same line of thought, nor is it unnecessary to insist that resolution No. 2662-2001, mentioned in turn in No. 12090-2009 of the Constitutional Chamber, ruled on subsection a) of Article 22 C.P.P. and not on subsection b), which is the one that concerns us here. Added to this, there are other resolutions of the referred Chamber, e.g., No. 2002-06808, at 2:46 p.m. on July 10, 2002, where <u>in a majority vote</u>, and indeed referring to what is stated in subsection b) of numeral 22, the control carried out by the trial court over the legality of an opportunity criterion was endorsed: <i>“The appellant's disagreement lies in the fact that the protected party… signed an agreement with the Public Prosecutor's Office for the application of the regulated opportunity principle, in the case established in Article 22 subsection b) of the Criminal Procedure Code, and after offering a statement of great utility for reaching the truth of the investigated facts, the appealed court revoked the agreement, leaving the accused in total defenselessness. In this regard, the first thing this Chamber must clarify is that the same Criminal Procedure Code clearly distributed the competences regarding the application of the regulated opportunity principle, leaving in the hands of the Public Prosecutor's Office the analysis of advisability and opportunity of refraining from exercising the punitive claim in the cases provided for in Article 22; likewise, it leaves to the criminal courts the control of legality in the use of said instrument, given the seriousness that its application contrary to the law would imply. In the express case of subsections b) and f) of the already cited Article 22, the effects of the agreement signed by the Public Prosecutor's Office with the accused person are merely provisional, and become final once the Trial Court definitively determines whether it is appropriate – in accordance with the parameters provided in the Law – to dispense with the criminal action against that person. That is, it is clear that the mere signing of an agreement between the Public Prosecutor's Office and the accused in a criminal case, the latter committing to provide useful information in the investigation, does not in itself confer the right to obtain a dismissal resolution in that process, but rather the final decision in this matter always remains in the hands of the judge… In the present case, it is obvious that the protected party could not demand that the Trial Court apply, without a prior legality judgment, the agreement they signed with the Public Prosecutor's Office. Thus, the action of the appealed court, reviewing whether the agreement in question complied with the requirements of Article 22 subsection b), is not illegitimate, but rather in accordance with its competences, as was explained in the previous paragraph…”, </i>a vote that supports what was stated by this sentence appeals court and that the trial court disregards, by relying solely on the minority vote subscribed by Judge Fernando Cruz Castro, which, for further abundance, does not call our conclusions into question either. Note that Judge Cruz Castro does not deny that the trial court could or should verify compliance with the requirements contemplated in Article 22 subsection b) of the C.P.P. What he questions is that said court took measures against the freedom of a person (the collaborator), against whom an accusation outlining their criminal responsibility had not been formulated. Said dissenting vote indicates: “… <i>The intervention of the trial court against a decision adopted by the Prosecutor's Office, rejecting an agreement between the accused and the representative of the Public Prosecutor's Office, while at the same time ordering the detention of a person against whom no accusation had been formulated, constitutes an improper intervention that denaturalizes the jurisdictional function, because a requirement that ensures the impartiality of the judge is their dissociation from the requesting power. This separation ensures the effective validity of the judge's impartiality, which is one of the most important organic guarantees defining the jurisdictional function. <u>Without the accusing body having defined the issue, the trial judges outlined a possible responsibility of the plaintiff, anticipating a judgment, without the criminal action having been exercised. The Court rejects the agreement and the application of the opportunity principle, but by ordering detention and ruling on the possible responsibility of a witness against whom the criminal action had not been exercised, it improperly assumes the functions that correspond to the accusing body. The freedom of a citizen is not satisfactorily protected if the judge assumes repressive and judging powers, without the requesting body having formulated the accusation</u>. The possible criminal responsibility of the respondent in a process in which the accusing entity had not exercised the accusation constitutes an excess that violates the balance of powers and the clear differentiation of actors and powers that governs the criminal process. The possible criminal responsibility that may correspond to a witness who testifies in such capacity and against whom the criminal action has not been exercised is an irrelevant issue that does not justify an anticipated judgment like the one the trial court exercised, because no person who testifies under oath or without it can provide legitimate proof that self-incriminates them. In order to safeguard against such a probability, legally inadmissible and whose consequences must be resolved in another process, after exercise of the requesting action, the court cannot interfere in the judgment of a fact that has not been submitted for its consideration. Nor was the possible departure from the country of the witness-accused relevant, because such an extreme is a responsibility of the Public Prosecutor's Office, especially regarding a citizen against whom the competent body had not exercised its requesting power. It was not a flagrant crime either, and for this reason, they could not order the immediate detention of the plaintiff, as was done in the trial hearing. Affirming that the witness was not detained because she was placed at the disposal of the competent authorities is a fallacious argument with which an attempt is made to hide an action in which the jurisdictional power exceeds its limits, blurring the difference between accusation and judgment, thereby violating the impartiality of the jurisdiction. As established by the criminal procedure code, the court may reject the agreement but cannot base such a determination on speculation about the possible responsibility of the crown witness, but rather must do so in a judgment, in accordance with the requirements provided in Article 23 of the c.p.p. The Judge cannot anticipate the result that the accusation will have, and even less so if it is the trial court itself, because it is not possible for it to establish the possible authorship that corresponds to the crown witness, when it has not yet ruled on the accusation that excludes the collaborator and mentions other actors and possible co-perpetrators of the act. The problem in this case is not that the agreement ensures the dismissal of the plaintiff – which would not be a legally admissible claim – but rather that the court imposed a limitation on the freedom of… without having the legitimacy that such a decision requires, since the competent body had not exercised its requesting power. Although the Prosecutor's Office had not previously requested the legality judgment that corresponds to the court of the intermediate stage (see last paragraph of Article 22 of the c.p.p.), such omission does not authorize the trial court to reject the opportunity criterion based on a series of appreciations and speculations about the result of an action that the Public Prosecutor's Office has not exercised. <u>The rejection of the opportunity criterion provided for in subsection b) of Article 22 of the c.p.p. must be based on the description and evidence of the main accusation, but it is not acceptable, as occurred in the present case, for the rejection to be based on an anticipated assessment of the evidence, as well as on an interpretation of the facts that the accusation does not contain. The rejection of the agreement cannot be based on a factual and legal determination that does not emerge from the accusation and the agreement; it is for this reason that Article 23 of the c. p. p. suspends the extinction of the criminal action, authorizing it only after the trial has been held, which is the opportunity at which the court, in the full exercise of its powers, once the evidence has been received in accordance with the constitutional principles that legitimize its reception and assessment, determines if the collaboration is legally acceptable, defining two points: a) if it is a person whose action in the criminal activity is less reprehensible than that which they helped to resolve and secondly; b) if the collaboration provided by the collaborating witness has been decisive. The evaluation of these parameters cannot be done before the debate is held, as the trial court did, constructing an accusatorial hypothesis over which it had no intervention, as the Criminal Procedure Code well defines by recognizing, as is proper, that the eventual responsibility of the crown witness must be resolved until after the debate has been held</u> (see second paragraph of Article 23 of the c.p.p.). Given the non-compliance with the provisions of the Code of Criminal Procedures (last paragraph of Article 22 and 24 of the c.p.p.), <u>the court could well have rejected the agreement that the Public Prosecutor's Office surprisingly presented, but without ruling on the content of the agreement and the possible participation of the plaintiff. Nor could the court, as stated, order the detention of a person who was not a flagrant offender and against whom the Public Prosecutor's Office had not exercised criminal action</u>. The admissibility or legality of the opportunity criterion applied by the Public Prosecutor's Office does not authorize the Court to exercise the powers that correspond to the accusation. By virtue of the arguments that have been set forth, the undersigned of this vote believes that although the surprising presentation by the Public Prosecutor's Office of the agreement with the plaintiff violates the principles of loyalty and due process, such an error does not authorize the trial court to exercise powers that correspond to the accusing body, ruling on the possible criminal responsibility of a person, without an accusation having been formulated against them, and ordering, based on such determination, the illegitimate detention of the plaintiff ...”.</i> A s can be observed, this dissenting vote does not deny the possibility that the trial court controls compliance with all the requirements provided for in Article 22 subsection b) C.P.P. On the contrary, this option is admitted, on the understanding that this must be done once the evidence has been produced in the debate. For all the foregoing reasons, this chamber concludes that jurisdictional control over the appropriateness of the opportunity criterion must exist, verifying compliance with the <i>legal requirements</i> - without distinctions, because the law does not distinguish in this regard - that the procedural code requires for its application. It is not a matter of supplanting the prosecutor in the choice of cases in which, for reasons of criminal policy, criminal prosecution must be dispensed with (because certainly, no one disputes that determining the <i>opportunity</i> of the measure in a specific case is the province of the requesting body), but rather of ensuring that the former's action – understood as the application to a specific case – conforms to the legal system. Finally, the fact that the opportunity criterion must be processed in a separate file is not, as the trial court indicates, an argument that exempts it from its duty to control compliance with the requirements that gave rise to its application, since, although it is true that the statement of the collaborating accused takes place in the debate, whereby the evidence is produced at that moment and not before, it cannot be ignored that said statement has its reason for being in the aforementioned criterion. If this had not been negotiated, the collaborator would not give testimony, and therefore we cannot exclude that procedure from judicial control. As is correctly indicated in the vote subscribed by Judge Camacho Morales, the promise of impunity, the promise to dispense with criminal prosecution, whether total or partial, is what moves the collaborator's will, and that is why it is necessary to corroborate whether that promise conforms to the regulations or not. This, logically, must take place in the main process, because it is in this that the criminal prosecution of the collaborator is dispensed with and the punishable conducts are accused that, in light of Article 22 subsection b), must be more reprehensible than those that cease to be of interest to the Public Prosecutor's Office. The fact that the opportunity criterion was accepted by a criminal judge is not an obstacle for the matter to be heard by the trial court, since in our criminal process the parties may repeatedly protest defects that cause them a grievance, be they absolute or relative when they have not been validated. That said, we also have that in the appealed judgment, some additional reasons are set forth to support the refusal to rule on the criterion, which should be carefully examined. The first is that the process in which the opportunity criterion was processed is independent of this one. As already anticipated, this implies leaving aside that the statement of [Name 064] was to be given in this case; that the opportunity criterion takes place because, at least in principle, the conduct of [Name 064] is less reprehensible than that attributed to other defendants, and, finally, that it will be based on what is decided in this matter that it will be determined if the expectations for which the exercise of criminal action was suspended have been satisfied. That is, even if it is admitted that the opportunity criterion is processed in a separate excerpt of documents that is independent of the main file, and that the account of [Name 064] contained therein does not have to be made known to those who appear as accused in this matter (thus, resolutions No. 4142 at 2:51 p.m. on June 2, 1999, and No. 1119 at 11:09 a.m. on February 4, 2005, both of the Constitutional Chamber), the legality of the proceeding (compliance with the requirements contemplated by the C.P.P.) is part of the issues that the trial court can and must control (either because the parties request it, or because it understands it must do so on its own motion), just as happens with other procedural acts that take place in preceding stages and through which the door is opened for a certain piece of evidence to be produced or introduced in the debate (e.g., the resolution ordering an anticipated jurisdictional evidence proceeding). For further abundance, the trial court incurs contradictions, since if with the argument that the opportunity criterion was processed <u>in an independent process</u> it refused to review the requirements that – erroneously – it classified as <i>substantial</i> (namely, the lesser reproach to the collaborator), it would also lack competence to verify compliance with those it called <i>formal</i> (namely, express request from the prosecutor's office that has the endorsement of the hierarchical superior and jurisdictional approval), the latter being something it did do. To what has been stated, an additional inconsistency should be added, namely, despite the fact that the trial judges agreed to examine the procedural issues, they omitted to rule on the complaints raised by the defense attorneys of [Name 033] and [Name 041] regarding the lack of reasoning in the resolution issued by the criminal judge (cf. folios 13.676 front and back, 13.677 back, volume XXVIII), the foregoing despite the fact that the referred defect is clearly one of <i>form</i>. As a second argument, the professionals subscribing to the majority vote maintain that regarding the opportunity criterion, what was resolved can only be challenged through the appeal against the definitive dismissal that may eventually be issued in the process where the application of that legal institution is processed.

Such a posture evidently renders the right to defense of the accused in the main proceeding—who are harmed by the collaborator’s statement—nugatory, especially considering that they are not parties to that proceeding (in fact, the *a quo* court so acknowledges). Moreover, the definitive dismissal would supervene, pursuant to Article 23 of the Code of Criminal Procedure, once the judgment—meaning the one handed down by the trial court in this matter—has become final, at which point the position of the defendants, by then convicted, would be consolidated. That is, we face the absurdity that the procedure for applying an opportunity criterion to a collaborating defendant, even in cases where it is blatantly illegal, would be exempt from all control, because according to the *a quo* court’s thesis, the so-called substantive requirements can never be assessed by the judge and because, quite simply, those aggrieved by the decision to apply the criterion cannot challenge it *in any proceeding* (neither in the one brought against them, nor in the one where the criterion is processed, since they are not parties), which would entail a flagrant violation of Article 42 of the Political Constitution.

As a third argument, the majority vote holds that analyzing the issue would mean advancing an opinion. This is also unacceptable, since comparing the reproaches based on the information provided by the requesting body when seeking the opportunity criterion is one thing, and issuing a pronouncement on whether those acts actually occurred or not is quite another, the latter being what would compromise the trial court’s impartiality. In any case, the option always remained to defer the resolution of the issue to judgment, as expressly stated in Article 342 of the Code of Criminal Procedure and as indicated by Judge Cruz Castro in the dissenting vote invoked by the female judges. For all of the foregoing, this chamber concludes that the application of the opportunity criterion set forth in Article 22(b) of the C.P.P. is subject to jurisdictional control and that, therefore, the court—be it the criminal judge, the trial court, and even the appellate and cassation bodies, as appropriate—must verify compliance with all the requirements that the legislator demands for such purposes. It is not a matter of supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, it is deemed appropriate to waive criminal prosecution, but rather of ensuring that, in those cases selected by the requesting body, the formalities required by the legal system for such purposes are fulfilled.

**2) Examination of the opportunity criterion granted to [Name 064]. Defects present in its processing and in the resolution authorizing it.** As already explained, this court does not share the *a quo* court’s criterion that it lacked competence to assess the propriety of the opportunity criterion and, in particular, to verify whether the acts whose criminal prosecution was waived were less reproachable than those whose prosecution was facilitated. For this reason and since some parties have also claimed this defect at this procedural stage, we now proceed to conduct the aforementioned examination, **concluding that the application of said legal institute for the benefit of [Name 064] is illegal**.

The resolution accepting the application of the opportunity criterion was issued by the Criminal Court of the Second Judicial Circuit of San José, at 9:51 a.m. on June 1, 2007 (cf. folios 41 a 89 frente, of the file entitled *“Legajo de solicitud del criterio de oportunidad”*). Regarding this, the first thing to note is that *it is a resolution devoid of reasoning*. The female criminal judge who resolved the matter, in addition to transcribing the 116 points cited by the Public Prosecutor’s Office in its request, granted it by pointing out a series of points that can be summarized as follows: ***i)*** Alongside ex officio criminal prosecution, derived from the principle of legality, the law also authorizes the Public Prosecutor’s Office to waive it in certain cases regulated by the same law and by *“convenience of the criminal policy of the current system”* (f. 83 frente of the cited file); ***ii)*** defining criminal policy and waiving criminal prosecution are discretionary powers that cannot be controlled by the judge: *“In this investigation, the female Prosecutors make use of that power and request, on behalf of the defendant [Name 064], the application of the opportunity criterion under the premise of subsection b) of the cited Article 22 of the CPP, the request being considered, and emphasis is placed on the discretionary powers that cannot be controlled by the judge, such that for reasons of procedural economy, and as it is ultimately the Public Prosecutor’s Office that determines whether to bring criminal prosecution or waive its exercise in the specific case”* (sic, f. 83 cited); ***iii)*** the request has the approval of the hierarchical superior; ***iv)*** after citing articles 22(b) and 23 of the Code of Criminal Procedure, the female criminal judge affirms that the application of the criterion is proper. At this point, she transcribes what was indicated in the request made by the Public Prosecutor’s Office (f. 85 a 87 frente) and, closing the textual citation, affirms: *“According to the female prosecutors’ statement (sic), the weighty reason motivating this petition by the Public Prosecutor’s Office rests on the premise that this is a matter of complex processing, in which the accused [Name 064] made a written statement for the purposes of the opportunity criterion, committing to testify, at the trial stage or in any oral hearing, where he would provide or ratify all truthful, useful, and pertinent information for the clarification of the facts investigated against the accused [Name 041], [Name 078], [Name 046], and [Name 033]. Likewise, it notes that the conduct attributed to the (sic) accused [Name 064] is less reproachable than that of the accused [Name 033]. On the other hand, note that the Prosecutor files the request before formulating the accusation, in writing, before the Judge of the Intermediate Stage, and as indicated supra, with the authorization of the hierarchical superior, which are the formal aspects whose compliance the judge must verify, and to which the legality control that must be carried out is ultimately limited. Consequently, this being the case, the request is granted…”* (F. 87 frente, emphasis not in original). As can be observed, *there is no pronouncement whatsoever on whether the conduct attributed to [Name 064] was or was not less reproachable than that imputed to [Name 041], [Name 078], [Name 046], and [Name 033], accused individuals whose intervention in the facts, as stated in the request for the application of the opportunity criterion, was what was intended to be proven through the statement that [Name 064] would give in the trial* (cf. folio 28 frente of the file in question, as well as folio 1, point 1.- of the file entitled “Acuerdo entre la fiscalía y [Name 064] para la aplicación del criterio de oportunidad”, evidence No. 776). We are dealing with a *resolution lacking reasoning* and, therefore, ineffective, either because the female criminal judge simply did not set forth her reasoning regarding the issue of the reproach attributable to the collaborator, or because she decided not to do so under the belief that such an aspect is beyond jurisdictional control. In fact, this seems to be inferred from the resolution (cf. last transcribed lines), a position that, for the reasons stated *supra*, is erroneous. Added to this, the conclusion stated above—namely, that the resolution presents a defect of lack of reasoning—does not change even if one hypothetically assumes that the jurisdictional body, by transcribing some excerpts from the Public Prosecutor’s Office’s presentation, adopted them as its own (and the hypothetical nature of the situation is underscored). This is because the request formulated by the requesting body also presents the same defect. As can be inferred from its reading, *despite the fact that the Public Prosecutor’s Office sought the application of an opportunity criterion in favor of [Name 064] to facilitate the prosecution of [Name 041], [Name 078], [Name 046], and [Name 033], its request did not dedicate a single line to explaining why the conduct of [Name 064], whose criminal prosecution was sought to be waived, was less reproachable than that of the defendants [Name 041], [Name 078], and [Name 046]*. Consequently, neither did the resolution that authorized its application, which, as already stated, limited itself to transcribing what the requesting body stated. In the case of [Name 033], the situation is no less serious, given that on the point in question—the reproach—it only states that [Name 064]’s conduct is less reproachable than that of [Name 033] because the latter was the [...] of the country and the former a member of a board of directors of an autonomous institution; because [Name 033] appointed the majority of the members of said board and had influence over the actions of those institutions, and because [Name 064] was also an advisor to the presidential house, whereby he owed obedience to [Name 033]. From the foregoing, the Public Prosecutor’s Office indicated, *“…the enormous power that [Name 033] wielded over ‘the institutional direction and action’ is evident”*, as well as personally over [Name 064] (f. 30 frente of the file). *That is, if we stick to the request, which, it bears repeating, was not pondered by the female criminal judge but merely reproduced in her resolution* (f. 86 a 87 frente), *the only argument offered to support that the conduct imputed to [Name 033] was more reproachable than that carried out by [Name 064] relates to the position the former held, leaving aside any consideration of the conduct actually imputed to [Name 064] and [Name 033]*. As if all of the foregoing were not sufficient to understand that the resolution authorizing the opportunity criterion is ineffective, there exists a defect of greater magnitude that renders the decision illegal. And it is that, as was denounced at the trial stage and now, at the sentence appeal stage, *it is evident from the case file that the female criminal judge who applied the opportunity criterion did not have all the necessary information to resolve the matter*. In reality, the acts that can be imputed to [Name 064], and whose criminal prosecution was waived, were more than those referred to by the Public Prosecutor’s Office when requesting the opportunity criterion. From the very statements that [Name 064] had made up to that point before the Public Prosecutor’s Office, in which he narrated acts unrelated to those investigated here and which could also be considered criminal, as well as from expert report 297-DEF (evidence No. 598) and case file No. 08-000032-0615-PE, brought against Francisco Dall'anese Ruiz for the alleged crime of breach of duties (and which was admitted as evidence at this procedural stage), it is evident that, in addition to matters related to the contracting of the 400,000 lines, by the time the criterion was negotiated, there were sufficient elements to suspect that [Name 064] had received many other “prizes or royalties.” Specifically, $110,207.00 and $29,833.95 from [Name 083] and [Name 085] (per expert report No. 297-DEF-540-04/05, folio 38 of the report); an economic retribution calculated at $56,000.00 due to what was resolved regarding the La Joya electricity generation project (cf. investigative statement of [Name 064] given at 4:15 p.m. on September 30, 2004, f. 132 frente of Volume I; complaint filed by [Name 033], f. 19 frente of case file No. 08-000032-06154-PE and note published in the national news section of La Nación.com on Saturday, October 2, 2004, entitled “[Name 064] admits another ‘prize’ as ICE director,” visible at folios 256 a 258 frente of the aforementioned case file No. 08-000032-06154-PE). [Name 064] also described some advantages of economic content received on his trips to Prague and Switzerland (cf. investigative statement of September 30, 2004, and complaint by [Name 033], f. 20 frente of case file No. 08-000032-06154-PE). Finally, in the complaint filed by [Name 033], it was mentioned that [Name 064] received significant sums of money from [Name 091] related to contracts other than those for cellular telephony, as well as a trip to Brazil paid for by that company [cf., folio 19 of the cited case file No. 08-000032-06154-PE and f. 1771 of Volume V (regarding the trip to Brazil)]. Now, *in that same proceeding—the one brought against Francisco Dall'anese Ruiz—, prosecutor Maribel Bustillo Piedra clearly admitted that, with the exception of the royalties enjoyed in Prague and Switzerland, the facts that, according to [Name 033], had not been investigated (that is, matters related to the monies that [Name 046] transferred to [Name 064]; the funds from [Name 060] associated with contracts No. 424 H 39552, 424 J 44031, and 424 H 39562; the trip to Brazil; and the economic retributions related to La Joya and [Name 083]-[Name 270]) had not been the subject of criminal prosecution because they were covered by the opportunity criterion*. Specifically, Ms. Bustillo Piedra requested the dismissal of the complaint filed by the defendant [Name 033] against the then Attorney General of the Republic with the following arguments: *“DISMISSAL OF THE COMPLAINT IS REQUESTED. The undersigned, MARIBEL BUSTILLO PIEDRA, Prosecutor of the Miscellaneous Crimes Unit… request the Dismissal of these proceedings, based on the following: STATEMENT OF FACTS. A. Mr. [Name 033], in his capacity as complainant, states that on the occasion of investigation No. 04-006835-647-PE, where [Name 064] appears as a defendant (whose criminal prosecution is suspended due to the application of the Opportunity Criterion institute), he acknowledged not only having participated in acts of corruption for the benefit of the company [Name 091], related to the awarding and contracting of four hundred thousand mobile telephone lines, but also acknowledged having carried out another series of criminal acts, supported even by documentation contained in the main file, for example, the reports from the Economic and Financial Crimes Section of the Judicial Investigation Agency, acts which, in his view, were not investigated by the Public Prosecutor’s Office.* *The criminal acts referred to by the complainant, which he indicates have not been subject to investigation by the Public Prosecutor’s Office against [Name 064], refer to:* · *Monies improperly received from the company [Name 091] on the occasion of: the purchase of fixed-line exchanges of the “ICE-Switching program 2000-2001,” the purchase for expansion of telephone exchanges made by ICE on May 23, 2002, and an ICE expansion program ($325,253.32).* · *Monies improperly received from [Name 280] for the approval of the “La Joya” hydroelectric project concession ($56,000.00).* · *Monies improperly received from [Name 046] for payments made to him by the company [Name 091] for “various reasons” ($62,562.50).* · *Monies improperly received from the company [Name 270]-[Name 083] for awarded contracting ($110,207.00).* · *Cost of tickets for travel San José-Río de Janeiro, Río de Janeiro-Sao Paulo, Sao Paulo-San José in first class, paid by the company [Name 091] ($5,617.00).* *B. On the other hand, the complainant [Name 033] points out that [Name 064] also acknowledged in his investigative statement having received royalties as an ICE Director, on a trip taken to Prague and Switzerland, acts which he indicates have not been investigated by the Public Prosecutor’s Office in a premeditated manner to protect him illegally.* *II.-On the merits of the matter.* *After a detailed study of these proceedings, the undersigned considers… that the appropriate course here is the dismissal of these proceedings, because the acts denounced by Mr. [Name 033] do not constitute a crime.* *A. The complainant himself, in his writing… offers the answer as to why the mentioned acts have not, for the moment, been the subject of criminal prosecution, by indicating…:* *“…such acts have not only been proven by his confession (that of [Name 064]) but also by expert evidence, and yet, due to the evident negotiation agreement existing between [Name 064] and Prosecutor Dall'Anese Ruiz…, they have not to date been the subject of any type of investigation or criminal imputation against the confessed criminal [Name 064]…” Indeed. The Public Prosecutor’s Office has agreed with the defendant [Name 064] on the application of the institute called Opportunity Criterion and, in this regard, a formal agreement has been signed, and therefore, at least for the moment, he is not the subject of criminal prosecution. It is worth taking this moment to make some clarifying considerations… The mentioned Opportunity Criterion was not carried out between [Name 064] and the accused Dall'Anese Ruiz, but rather between [Name 064], his private attorney Edwald Acuña Blanco, and the prosecutors of the Public Prosecutor’s Office, Carlos Morales Chinchilla and Criss Gonzáles Ugalde, on January 31, 2006, and was authorized by the then Deputy Prosecutor of the Economic Crimes, Corruption, and Tax Prosecution Office, Mr. Warner Molina Ruiz. On the other hand, the mentioned acts were indeed subject to investigation, to the point that, as the complainant indicates, they are contained in several documents that form part of the main file, among them, the police reports from the Economic Crimes Section of the Judicial Investigation Agency, but as indicated previously, they form part of the agreement for the application of the institute under Article 22… Certainly, the investigation carried out by the Deputy Prosecutor's Office for Economic Crimes, Corruption, and Tax Matters of the Public Prosecutor’s Office involves extremely complex processing regarding serious corruption crimes committed in the highest spheres of those who held political power in our country in the early years of this decade… The conduct of [Name 064] is less reproachable than that of [Name 033], since in the sphere of public office, when dealing with corruption crimes, the mere condition of being the [...] implies a greater reproach than any other public official might deserve, regardless of the position they hold…* *The Deputy Prosecutor's Office for Economic Crimes, Corruption, and Tax Matters of the Public Prosecutor’s Office analyzes that, in this case, all the stated procedural prerequisites concur, and therefore, decides to apply the institute for the defendant [Name 064], not only for the monies improperly received from the company [Name 091] corresponding to the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand wireless telephone lines of GSM (sic) technology, but also for the other mentioned criminal acts. This is clearly evident from the “Agreement for the application of the opportunity criterion” carried out at the Deputy Prosecutor's Office for Economic Crimes, Corruption, and Tax Matters on January 31, 2006, which the undersigned representative of the Public Prosecutor’s Office reviewed and which may be requested from that office by the Criminal Judge for his analysis. The agreement, in what is pertinent, establishes:… “Present at the Economic Crimes, Corruption, and Tax Prosecution Office, the defendant [Name 064], of legal age… his defense attorney… the Prosecutors… for the purpose of setting the limits regarding the application of an opportunity criterion in favor of the defendant [Name 064]… it is agreed: 1. The Public Prosecutor’s Office… undertakes to request, on behalf of the defendant [Name 064], that criminal prosecution be totally waived in the case indicated above, as long as the statement he undertakes to give in this case is not disproven by other evidentiary elements that make it appear false, whether in whole or in part…” In the mentioned agreement, it can be observed that the Public Prosecutor’s Office, in the exercise of its lawfully conferred powers, undertakes to request, on behalf of [Name 064], that criminal prosecution be waived, not only for the fact related to the money improperly received from the company [Name 091] on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand mobile lines…, but of the entirety of the criminal prosecution in case No. 04-006835-647-PE, which encompasses this and the other facts that the complainant mentions, since all are part of the investigation with the indicated unique number, so much so, that the defendant was questioned regarding all of those facts, and well before the application of this agreement, on September 30, 2004…B. On the other hand, the complainant [Name 033] refers in his writing that, in addition to all the described illegal acts, [Name 064] also confessed, in his first investigative statement of September 30, 2004, in case 04-006835-647-PE, to having received royalties as an ICE Director on a trip taken to Prague and Switzerland, which is processed in independent case No. 04-004671-647-PE… this case was initiated in the Public Prosecutor’s Office before case 04-006835-647-PE was initiated, and it is for this reason that these facts are outside the agreement for the application of the opportunity criterion carried out on January 31, 2006…”* (cf., folios 27 a 36 frente of case file No. 08-000032-0615-PE, brought against Francisco Dall'anese Ruiz, for breach of duties; the highlighting is not from the original). As can be observed, in the same request for dismissal formulated by Ms. Bustillo Piedra in favor of the then Attorney General of the Republic, Mr. Francisco Dall'anese Ruiz, the cited professional categorically stated that *the opportunity criterion encompassed not only the facts related to the contracting of the 400,000 lines, but also the other facts known in case No. 04-006835-647-PE* and which, in principle, she listed in the request for dismissal, clarifying that they were part of the same investigation and that [Name 064] was questioned in relation to them.

Of the acts covered by the negotiation with the cooperating accused, Ms. Bustillo Piedra only excluded those related to the trips to Prague and Switzerland, which, according to her, were being investigated in a separate case. <u>Now, this court has also undertaken the task of examining both the request for the application of the prosecutorial discretion criterion (criterio de oportunidad) and the resolution that authorized it, determining the following</u>: <b><i>a.-</i></b> the economic compensation delivered by [Name 046] to [Name 064] as acknowledgment for the payment arrangements that the cooperating accused made before [Name 091], are indeed contemplated in the negotiation (f. 17 a to 18, 65 a to 67 front, points identified with numbers 80 a to 85, request for prosecutorial discretion criterion file); <b><i>b.-</i></b> the funds transferred to [Name 064] that are related to contracts No. 424 H 39552, 424 J 44031, and 424 H 39562 (contracts cited by the complainant [Name 033] on folios 6 a to 8 front of file No. 08-000032-0615-PE), are indeed linked to the matter of the 400,000 GSM mobile telephone lines, since, according to what was stated in the appealed judgment, those contracts were merely fronts used to receive funds that were later delivered to various public officials on the occasion of said matter. In that sense, these are sums that are included within the scope of the prosecutorial discretion criterion (see point 97.- and following, both in the request and in the resolution that authorized the application of the criterion, and in which reference is made to the delivery to [Name 064] of $2,560,253.32 <u>on the occasion of the contract for the 400,000 lines</u>, folios 20 a to 28 and 70 a to 82 front of the file). <b><i>c.-</i></b> Of the economic compensation associated with the La Joya project and the companies [Name 083]-[Name 270], as well as the trip to Brazil, there is no reference in the agreement for the application of the prosecutorial discretion criterion. <b><i>d.-</i></b> The acceptance by [Name 064] of economic compensation originating from [Name 085] is not mentioned in the complaint filed by [Name 033] (file No. 08-000032-0615-PE), nor in the request for the application of the criterion, or in the resolution that authorized it. <i><u>From all the foregoing, several conclusions are drawn</u></i>:

• 1)At the time the prosecutorial discretion criterion was negotiated, <i><u>in the present case</u></i> there were indications to attribute to [Name 064] criminal acts distinct from those related to the contract for the 400,000 GSM mobile lines and that had to do with his receipt of various economic compensation originating from different persons - natural and legal -, namely: <i>a)</i> sums apparently delivered by [Name 280] for the award of the La Joya hydroelectric project; <i>b)</i> sums delivered by the companies [Name 083]-[Name 270]; <i>c)</i> funds transferred by [Name 085]; <i>d)</i> a trip to Brazil paid for by the company [Name 091]; and finally, <i>e)</i> money delivered by [Name 046], apparently as a reward for having interceded before [Name 091] so that they would pay [Name 046] what they owed him.
• 2)While the compensation mentioned in point e) cited above were indeed contemplated in the request for the criterion and the resolution that authorized it, the economic compensation related to the La Joya hydroelectric project, those originating from the companies [Name 083]-[Name 270], and the trip to Brazil, for an unknown reason, <u>were not included,</u> this despite being part of the agreement, as acknowledged by Ms. Bustillo Piedra in file No. 08-000032-0615-PE.
• 3)Although the gift given by the company [Name 085] was not contemplated in the request for the application of the prosecutorial discretion criterion, nor was it mentioned by Ms. Bustillo Piedra when requesting the dismissal of the case against Mr. Dall'anese Ruiz (which is understandable, because [Name 033] did not include it in his complaint either), at the time of the negotiation of the prosecutorial discretion criterion, there were elements giving notice of its existence.
• 4)Regarding <i>all</i> these gifts - including the one originating from [Name 085] - the Public Prosecutor's Office (Ministerio Público) did not conduct any investigation.
• 5)There is an irreconcilable inconsistency between what was stated by Ms. Maribel Bustillo Piedra in the aforementioned file No. 08-000032-0615-PE and what was indicated both in the request for the prosecutorial discretion criterion and in the resolution that approved it. An inconsistency that can only be explained in two ways: <i>i)</i> Ms. Bustillo Piedra would have been untruthful in file No. 08-000032-0615-PE when requesting the dismissal of the complaint filed against the then Attorney General of the Republic; or <i>ii)</i> Ms. Bustillo Piedra told the truth, and therefore, it must be concluded that although some of the acts that in principle were attributable to [Name 064] (the gifts originating from Bolaños Alpízar, from the companies [Name 083]-[Name 270], and the trip to Brazil), despite having been considered when negotiating the prosecutorial discretion criterion, <u>for reasons unknown were not contemplated or included in the request for its application. That is, in relation to those acts, a "de facto" prosecutorial discretion criterion was negotiated, devoid of jurisdictional control</u>. <u>For the undersigned, of both alternatives, the second is the one deemed reasonable</u>, not only because in the request for dismissal filed by Ms. Bustillo Piedra she recommended that the jurisdictional authority examine the documents related to the criterion (which demonstrates that she acted with transparency), but also because none of the aforementioned gifts have been the subject of criminal investigation and prosecution. Using this same argument (the absence of investigation and prosecution), it is feasible to conclude that [Name 064]'s acceptance of the gift given to him by the company [Name 085] was also one of the conducts negotiated without complying with the formal legal requirements. Although this was not described in the request for dismissal made by Ms. Bustillo Piedra, nor in the request for the application of the prosecutorial discretion criterion or the resolution that approved it, it is an act that has been given the same treatment as the economic compensation described above and which, according to the prosecutor so many times mentioned, are included within the prosecutorial discretion criterion. On this point, and independently of the consequences that derive from the foregoing, for this court it is necessary to underline the errors that have been committed, not only by the requesting body (which - perhaps through neglect - failed to inform the jurisdictional body about some of the acts whose criminal prosecution it dispensed with when negotiating a prosecutorial discretion criterion with [Name 064]), but also by the criminal judge who resolved the request for dismissal filed in the cited file No. 08-000032-0615-PE, since, at a minimum, to accept this, she should have verified what was stated by Ms. Bustillo Piedra, as this same professional requested when filing the request for dismissal. A simple reading of the request for the application of the prosecutorial discretion criterion and of the resolution that authorized it would have been sufficient to conclude that some of the economic compensation received by [Name 064], unrelated to the matter of the 400,000 lines, were not contemplated (at least not formally and expressly) in the negotiation that was carried out in this matter. It is important to note that the defect of interest, that is, the one that occurred in this process, was not corrected by the requesting body either, despite having had that possibility, that is, when the accused [Name 033] criminally denounced Mr. Francisco Dall'anese Ruiz for breach of duties on July 1, 2008 (f. 1, file No. 08-000032-0615-PE), or during the trial, when the issue was questioned by the defense (see folios 13.676 a to 13.705 back, volume XXVIII). The majority opinion states that the acts submitted to the prosecutorial discretion criterion are only those related to the award of the 400 thousand mobile telephone lines, since only these are included in the factual basis of the request for its application and in the resolution that approved it, hence the defense counsel are not correct in asserting that the criminal judge was deceived in order to favor [Name 064], guaranteeing him impunity for crimes not included in the proceeding (f. 16.079 front, volume XXXIII). This criterion is not shared. As already explained, the discrepancy between what was raised in the request for dismissal filed in file No. 08-000032-0615-PE and what was contemplated in the request for the application of the prosecutorial discretion criterion in this case is evident, without it being plausible, to establish what the scope of the agreement was, to rely only on what was indicated in the second, since the Public Prosecutor's Office, besides being a single entity, was the one that through one of its representatives <i><u>admitted and categorically assured</u></i> that a series of acts that in principle were attributable to the cooperating accused had not been investigated because they were included in the negotiation. Even during the trial, [Name 064], who refused to testify regarding all the aforementioned matters, namely, the economic advantages originating from [Name 083], [Name 270], [Name 085], and those related to the project called La Joya (see folios 14.975 and 14.976 front, volume XXXI), also refused to indicate whether any of those acts were covered by the prosecutorial discretion criterion (f. 14.995, first line). For the undersigned, the thesis of the majority opinion, in the sense that what is important is what was stated in the agreement and not what may have happened outside of it, would entail admitting that the Public Prosecutor's Office can handle a double discourse in matters of negotiations, one that is recorded within the process and based on which compliance with the legal requirements for the application of the legal figure is examined, and another outside jurisdictional control, where it can simply dispense with prosecuting certain acts in exchange for cooperation. This is a position that is inadmissible in constitutional terms, since - as already explained - by reason of the principle of legality that governs our system, the Public Prosecutor's Office <i>is obligated</i> to exercise the criminal action, a duty that can only be excepted in cases exhaustively indicated by the legislator and under jurisdictional control. And this control can only be carried out when the requesting body, when seeking the application of a prosecutorial discretion criterion, objectively and transparently contemplates all the acts included in the agreement, without omitting core information. Only in this way can the jurisdictional authority determine if the conduct of the cooperating accused, whose criminal prosecution is dispensed with, is less reprehensible than that of the accused who are affected by the criterion. This is a matter that takes on greater importance in legal systems such as ours, where the criminal conduct of the collaborator whose prosecution is dispensed with is not necessarily part of the act whose continuation is prevented or whose criminal prosecution is facilitated (thus, ZÚÑIGA MORALES, Ulises. “El testigo de la corona”. In: <i>Derecho Procesal Penal Costarricense</i>. San José, Asociación de Ciencias Penales de Costa Rica, 2007, pp. 592 and 599. In the same sense, Sala Tercera, resolution No. 2001-0737). And it is that if, on the occasion of the prosecutorial discretion criterion, impunity can be guaranteed to the collaborator for acts distinct from those being investigated and resolved with his help (in this case, those related to the 400,000 lines and the gifts that [Name 046] gave him as thanks for his collection efforts before [Name 091]), the importance that the Public Prosecutor's Office, when requesting the application of the legal institute, not omit any detail about <i><u>all</u></i> the conducts that will no longer be investigated and prosecuted is notorious, not limiting itself to the description of those whose criminal prosecution is facilitated by the so-called <i>crown witness</i>, since the assessment or comparison of reproaches must be made on the set of acts. In summary, if the agreement includes, as happened in this case, conducts of the collaborator that are not part of the act under investigation, the request for the application of a prosecutorial discretion criterion must include them, since otherwise, the jurisdictional body lacks the information necessary to control whether the application of the aforementioned legal institute - which has clear utilitarian connotations - is justified to the detriment of the principle of legality and mandatory exercise of criminal action. For all the foregoing, this court understands that, when requesting the application of the prosecutorial discretion criterion, the requesting body had the duty to set out all the acts involved in the pact, whether these were related to the act under investigation or were distinct and independent. If they were included in the agreement and it was intended to dispense with their criminal prosecution, they had to be described, because jurisdictional control is exercised over the agreement and not, as some might interpret, over a part of it, that is, the part related to a particular investigation, a position that - it is reiterated - would open the door for the requesting body to arbitrarily dispose of the exercise of criminal action, making, on the one hand, within the process, negotiations favorable to its interests and in which the requirements of lesser reprehensibility or culpability of the collaborator are satisfied, and, on the other hand, outside the legal system, other agreements, exempt from any jurisdictional control. According to Ms. Criss González Ugalde and Ms. Maribel Bustillo Piedra (f. 171.400 and 171.401 front, volume XXXVIII), it cannot be asserted that the requesting body hid information from the criminal judge, since although the processing of the criterion was carried out in a separate file, the request mentioned the case in which it was required (namely, No. 04-6835-647-PE). That is, according to these professionals, it was sufficient for the judge who had to resolve the request for the application of the criterion to apprise herself of the content of the investigation to discover that [Name 064] had received other economic compensation. Such reasoning from Ms. González and Ms. Bustillo is erroneous, since according to Art. 22 of the C.P.P., it is the Public Prosecutor's Office that must decide whether to dispense with criminal prosecution totally or partially, or whether to limit it to one or several offenses. That is, the examination that the criminal judge must make should always start from the limits established by that body. So much so that, even hypothetically assuming that the court detected that additional acts to those contemplated in the request were being aired in the case, this was of no importance, since in accordance with the rules regulating the matter, it could well be understood that in relation to those, criminal prosecution remained in force, something that, as of today, is known not to have happened in this case, not only due to the statements made by Ms. Bustillo Piedra in file No. 08-000032-0615-PE, but also because, despite the passage of time, the acceptance by [Name 064] of a series of advantages of patrimonial content that were presented to him outside the acts submitted for judgment in this matter has not been investigated and prosecuted. This confirms what has been being raised, in the sense that the requesting body is obliged to act with extreme transparency, objectivity, loyalty, and rigor, reflecting in the agreement ALL the acts submitted to negotiation and not only those it deems opportune. Finally, the situation of [Name 064] himself cannot be ignored, since if he provided cooperation it was because the requesting body committed to dispensing with the criminal prosecution of a series of conducts, and it is inadmissible to endorse practices that cast doubt on the scope of the agreement, preventing the cooperating accused himself, should it be necessary, from demanding compliance with what was agreed.
• 3)<u>Hypothetical inclusion of the conducts omitted by the requesting body when requesting the prosecutorial discretion criterion and new assessment regarding the reproach that can be made regarding the conducts imputed to [Name 064], in comparison with those of other accused. Weighting of the arguments put forward by the trial court regarding the subject in particular</u>. The resolution that authorized applying the prosecutorial discretion criterion in favor of [Name 064] not only lacks substantiation, but was also adopted without having all the information necessary for such purposes, since the Public Prosecutor's Office omitted to include in the request some of the acts whose criminal prosecution it had (apparently "de facto") agreed to dispense with. This defect becomes relevant to the extent that, with the inclusion of those acts, the jurisdictional body could have concluded that the conduct of the collaborator was <u>not</u> less reprehensible than that of those accused against whom the mentioned legal institute was negotiated. Thus, to determine the essential nature of the error, it is necessary to proceed to do this hypothetical inclusion exercise, but not without first pointing out some points: <b>1)</b> As already indicated above, in the case of [Name 041], [Name 078], and [Name 046], neither the requesting body when seeking the application of the prosecutorial discretion criterion, nor the criminal judge who resolved on that request, ruled on the reproach that could be made to these compared to that which corresponded to [Name 064]. It is a topic that <u>was simply overlooked</u>, contrary to what happened with [Name 033], since when requesting the application of the prosecutorial discretion criterion, the requesting body alluded to him, explaining the reasons why it considered that a greater reproach corresponded to him than to [Name 064], reasons that, as explained <i>supra</i>, the jurisdictional body merely transcribed, without making any weighting or verification. <b>2)</b> The examination of the reproach that could be made to the accused was done <i><u>for the first time</u></i> in the appealed judgment, considering in this respect only the acts that were described in the documentation prepared on the occasion of the agreement made, leaving aside those conducts of [Name 064] in relation to which it was negotiated and agreed ("de facto" and not de jure) to dispense with criminal prosecution. <b>3)</b> The analysis that this court must now make must be carried back to the time when the prosecutorial discretion criterion was authorized, considering from an <i>ex ante</i> perspective, as Article 22 subsection b) of the procedural code indicates, the conducts whose criminal prosecution was sought to be facilitated with the contribution of the collaborator, and cannot include conducts other than these (although, from an <i>ex post</i> analysis, the <i>a quo</i> court may have considered them proven by relying on that contribution and they may have been useful to argue that the reproach that can be made to some accused is greater than that corresponding to [Name 064]. Thus, for example, the trial court stated that [Name 041]'s conduct is more reprehensible than that of the collaborator because he extended promises of gifts <u>to several public officials</u> and not only to [Name 064], a point in relation to which [Name 064] could not make any contribution, since he denied knowing if besides him and [Name 033], there were other public officials involved. <b>4)</b> The comparison, which must be carried back to the time when the agreement took place, must be made between the conduct or conducts of [Name 064] whose criminal prosecution is dispensed with, and those <i>of the accused whose criminal prosecution is facilitated by the application of the legal institute</i>, and it is not legitimate to consider, to establish the magnitude of the reproach, the conducts of <i>other accused</i> that the sentencing court considered proven by relying on the testimony of [Name 064] <u>but in relation to whom the prosecutorial discretion criterion was not negotiated</u> (this is the case, for example, of [Name 001], [Name 022], or [Name 028]). That is, the study must be limited to the reproach that can be made to the acts of [Name 064] in comparison with that which can be made to [Name 078], to [Name 033], to [Name 046], and to [Name 041], <u>since it was only in relation to these defendants that the requesting body sought to apply the prosecutorial discretion criterion. On this point, it is important to underline that this court is not questioning that the statement of [Name 064], <b><i>once incorporated into the trial</i></b>, was weighed as one more piece of evidence, even to the detriment of some accused against whom the prosecutorial discretion criterion was not negotiated</u> (in this same sense, read judgment of the Sala Tercera No. 1030-2014, of 10:00 a.m. on June 27, 2014); however, this does not mean, not by a long shot, that to examine the degree of reprehensibility, with respect to the cited Article 22 subsection b), that circumstance must be weighed, <i>since at the time the negotiation was conducted</i>, which is precisely the time to which we must carry ourselves back, the causing of such effects was not contemplated, and so it is that the negotiation occurred, it is reiterated, only to the detriment of specific accused ([Name 033], [Name 046], [Name 041], and [Name 078]). The foregoing having been clarified, we proceed to the substance of the matter, indicating that, for the reasons that will be set forth below, <u>for this court of appeal of judgment, the conducts imputed to [Name 064] are not, nor were they at the time of the negotiation, less reprehensible than those whose criminal prosecution his statement facilitated, and - to that extent - the prosecutorial discretion criterion is also illegal for this reason</u>. Upon signing the agreement, there were elements to suspect that [Name 064] was a public official prone to receiving irregular economic advantages. As stated in proven facts numbers 113 and 114 (f. 15.450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) he received on the occasion of the contract for the 400,000 lines, he transferred to [Name 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. That is, [Name 064] appropriated $1,739,690.32, thus becoming the public official who obtained the greatest economic advantages from the criminal scheme associated with the matter of the 400,000 lines, a conclusion that is not modified by the fact that, subsequently, when negotiating an expedited procedure (procedimiento abreviado) and then a prosecutorial discretion criterion with the Public Prosecutor's Office, he was willing to deliver important sums of money and some assets to the State (thus, see f. 3 and 4 of evidence No. 308 and f. 3, evidence No. 776). In addition to the foregoing, [Name 064], before the acts investigated here, had received $63,083.59 delivered to him by [Name 046]; $110,207.00 paid by the companies [Name 083]-[Name 270]; $29,833.95 originating from the company [Name 085]; and finally, an approximate $56,000 related to the La Joya project, the foregoing without mentioning the trip to Brazil that, as [Name 033] denounced, was paid for by [Name 091]. In summary, by the time the prosecutorial discretion criterion was negotiated and its application requested, there were elements to reasonably think that [Name 064] had committed several criminal acts, some related to the matter of the 400,000 lines and several others unrelated to it, all - apparently - of a similar nature: receipt of gifts in his capacity as a public official. Despite this, it was opted to guarantee his impunity so that, in exchange, he would testify against [Name 033], [Name 041], [Name 046], and [Name 078] (the latter was not subjected to this criminal process). In the case of [Name 041], the collaborator was willing to testify that he <u>made him a promise of a gift related to the contract for the 400,000 lines and that, later, he transferred the promised funds to him through [Name 058].</u> While the cooperation of [Name 064], at the time of agreeing to the prosecutorial discretion criterion <u>and with respect to [Name 041],</u> <i><u>made it possible to prove a single fact</u></i> <u>, namely, that he made him an offer of economic compensation prior to the contract for the 400,000 lines</u>, the impunity guaranteed to him was for extremely censurable conducts <i>due to their quantity</i> (we speak of repeated acceptance of gifts, which, at a minimum, demonstrates that for [Name 064] this was a habit); <i>due to the sums involved</i> ([Name 064] was the public official who received the most money on the occasion of the contract for the 400,000 lines, even subtracting the part he delivered to [Name 033], and he also received substantial earnings from other natural and legal persons); <i>and finally, due to his status as a board member of ICE</i>, a position he used to receive all the economic compensation described. We know that the legislator punishes the corruptor, at least in certain cases, with the same penalty as the corrupt public official; however, in terms of reproach, or in other words, the culpability of those involved (and which in the case of [Name 064] is established hypothetically, since no accusation has been filed or trial held against him), it is impossible to ignore how he, despite having the obligation to perform his position with probity, abused his position of power as a member of the board of directors of ICE to obtain economic benefits at the expense of various suppliers of the aforementioned autonomous institution.

In response to this, we have [Name 041], a private individual who, if we rely on what was stated by [Name 064], offered him a bribe (dádiva) in exchange for helping [Name 091] in three specific areas (migration to GSM, use of tenders, and a favorable vote in the award of the 400,000 lines), which would in turn allow him ([Name 041]) to obtain a profit. Although both paying and receiving are reprehensible behaviors, [Name 064] is not deserving of a lesser reproach than [Name 041] and, to that extent, it is not legitimate to grant procedural advantages to the former in order to secure the conviction of the latter, because as indicated, [Name 064] was a public official who was not only involved in the facts related to the 400,000 lines, but also in many others, which demonstrates that the receipt of bribes (dádivas) was a habit for him, with [Name 041] being just one of the subjects who, apparently, offered him one of those economic retributions. This Chamber does not ignore that [Name 064]'s statement was essential to demonstrate that [Name 041] made offers of bribes (dádivas) to other public officials, which undoubtedly increases the reproach; however, it is worth reiterating, this is an unexpected and unforeseen result when the opportunity criterion (criterio de oportunidad) was negotiated, to the point that [Name 064] himself stated he did not know if other officials were in his same situation (cf. e.g., statement of [Name 064], p. 14,957 front, last lines, volume XXXI). That is to say, at the time the agreement was made, it was not intended for [Name 064] to make any contribution to demonstrate the culpability of <u>other public officials</u> beyond [Name 033], and the proof of this is that the legal mechanism (instituto jurídico) was requested only to the detriment of [Name 078], [Name 046], [Name 041], and [Name 033]. Therefore, this court would err if it used this consequence, to some extent unforeseen, to try to support -retroactively, moreover- a resolution that lacks all foundation, not only because the jurisdictional body indeed conducted no analysis, but also because, had it done so considering all the information we know was omitted, it would have concluded that [Name 064] did not deserve a lesser reproach.

<u>The situation is similar regarding the accused [Name 033].</u> Regarding the opportunity criterion (criterio de oportunidad), he was accused of having instigated [Name 064] to accept the promise of a bribe (dádiva) made to him by [Name 041] and [Name 078] and, subsequently, of having received the money that the collaborating accused transferred to him, for the purpose of fulfilling what was promised. As was taken as proven (cf. facts numbers 113 and 114, p. 15,450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) that [Name 064] received, he delivered to [Name 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. Faced with this isolated conduct of [Name 033], there are the repeated conducts of [Name 064] that were noted above, namely, the acceptance of several economic retributions paid by companies and private individuals with whom he had contact due to his position at ICE (namely, $1,739,690.32 from [Name 091] on the occasion of the contract for the 400,000 lines; $63,083.59 that were handed over to him by [Name 046]; $110,207.00 paid by the companies [Name 083]-[Name 270]; $29,833.95 from [Name 085]; and finally, an approximate $56,000, related to the La Joya hydroelectric project, as well as the trip to Brazil also mentioned before). Thus, <u>the difference between the position held by [Name 033] compared to that held by [Name 064] is the sole argument invoked in the judgment on the merits to affirm that the conduct attributed to the former is more reprehensible than all the acts executed by the latter,</u> which is untenable, because while it is true that the personal conditions of the active subject that are decisive for the commission of the crime must be considered, this does not mean ignoring the gravity of the conduct actually carried out, and in the specific case of the 400,000 lines, [Name 033]'s actions were not so decisive, to the point that [Name 064] himself had no problem disregarding the distribution of the irregular profits arranged by the former (where -according to his statement- [Name 033] would get 60% and he 40%). Moreover, the fact that [Name 033] was his hierarchical superior at the Presidential House, and that -furthermore- it was the Government Council of the [Name 033] administration that appointed him as a member of the Board of Directors of ICE, for purposes of determining the degree of reprehensibility of both conducts are not of major importance, since, despite that hierarchical relationship, as explained, [Name 064] would have had no problem refusing to deliver to [Name 033] the agreed percentage of the profits, considering it unfair. In fact, during the trial debate, despite affirming that the difference in the profit distribution percentages was justified <i>"… from the participants' point of view because Mr. [Name 033] was the [...]"</i>, upon being questioned, he acknowledged having stated in previous statements that those percentages were unfair and disproportionate, since it was he who assumed all the risk, as, <i>"… the money arrived in the accounts I provided and I dealt with [Name 091]</i> <i>to protect the [...], I only dealt with high-level people from [Name 091]</i> <i>. From the money received, I had the responsibility to give Mr. [Name 033] the money that corresponded to him..."</i> (P. 14,991 front of the judgment, volume XXXI). That is to say, based (according to an <i>ex ante</i> analysis) on the facts that supported the prosecutorial request for homologation of the opportunity criterion (criterio de oportunidad), as well as on the very account provided by [Name 064], he was not a person who, sporadically and by chance, received a bribe (dádiva) promise and, confronted with it, sought the support of the then [...] to accept it. On the contrary, he was a public official experienced in these matters, who knew how to act, and who turned to [Name 033] because he understood that the future act expected of him might require someone more influential. So clear is the matter, that despite [Name 033] being the [...] and hierarchical superior of [Name 064], the latter had no problem abandoning the commitment made with him and handing over a lesser sum of money, considering the agreed distribution percentages to be unfair. That is, with the purpose of keeping most of the illicit profit, [Name 064] (as he declared) set aside [Name 033]'s position, which allows concluding that the hierarchical relationship, contrary to what was outlined by the requesting body when requesting the criterion, is not an element that, at least in light of the specific case, can be considered decisive for the purpose of estimating that [Name 033]'s conduct was more reprehensible.

This appellate court does not ignore that (as derived from [Name 064]'s statement) the then [...] of the country was required to censure his subordinate and report what happened. However, that instead of this he supported him in a way that only he could, does not allow affirming that [Name 064]'s acts were less reprehensible, to the point of justifying the cost of the impunity guaranteed to the collaborator with the sole purpose of obtaining the conviction of a person who at that time held a higher rank. This seems to have been the sole purpose that motivated the requesting body because, as has been pointed out, despite having negotiated the opportunity criterion (criterio de oportunidad) to obtain information against [Name 046], [Name 041], and [Name 078], <u>in the request formulated by the Public Ministry (Ministerio Público), it did not even attempt to explain why it was understood that these individuals deserved a greater reproach than [Name 064]</u>, something that was attempted to be justified in the case of [Name 033], though with little success, since the only argument presented is the one already outlined, namely, the consideration that [Name 033] was [...] and hierarchical superior of [Name 064], without taking into account several issues that have already been mentioned, specifically, that [Name 064] was also a public official, that he had made the receipt of bribes (dádivas) a habit; that in the face of the multiple criminal conducts that could be attributed to him, [Name 033] was only accused of having participated in a crime in which [Name 064] appeared as the perpetrator and, finally, that the economic retribution the collaborator obtained on the occasion of the 400,000 lines was the most significant of all, given that those received for other acts were also substantial. For all these reasons, it cannot be considered that the conduct of instigation attributed to [Name 033], whose criminal prosecution was facilitated by [Name 064]'s statement, was more reprehensible than the conduct attributed to the latter.

Similarly, the assertion contained in the appealed judgment, to the effect that [Name 064] deserves a lesser reproach because he has been willing to collaborate with the administration of justice is extremely questionable, since, first of all, if we start from the thesis assumed by the court of merit, in the sense that the version he gave after negotiating with the Public Ministry (Ministerio Público) is the true one, we would have to conclude that for months, by denying the bribe (dádiva) promise, he attempted to confuse the respective authorities, with the sole purpose of evading his responsibility. Likewise, just as it cannot be derived from that collaboration the conclusion that [Name 064] is repentant, because it is very clear that his help has not been gratis, from the exercise of the right of defense (derecho de defensa), which is what has characterized the other accused, including [Name 033], a lack of repentance for the acts that, according to the court, he has committed cannot be extracted.

Finally, <u>regarding [Name 046], the situation is also quite clear.</u> Although both he and [Name 064] himself were persons with extensive careers in the public sector, at the time of the facts of interest here, it was the latter who was performing a public function. Thus, several crimes that, at least in principle, were attributable to [Name 064] were left uninvestigated and unprosecuted (including the one related to the contract for the 400,000 GSM lines, which meant a tremendous profit for the collaborator), in exchange for facilitating the criminal prosecution of a person who <i>before the facts investigated here</i> would have promised him (according to [Name 064]'s statement) an economic retribution in exchange for helping him collect from [Name 091] a sum of money owed to him, a proposal that the public official accepted and translated into collection actions, later receiving, also without raising any obstacle, the sums that [Name 046] transferred to him as a token of gratitude for that help. That is to say, the requesting body was willing to guarantee impunity to a public official who repeatedly received bribes (dádivas), some of a staggering amount, in exchange for facilitating the conviction of a private individual who figured as a corrupter in only one of those acts, one prior to and unrelated to the contracting of the 400,000 lines. In summary, the conducts of the accused [Name 064], due to their repetition, the amount of the economic retributions obtained, and, of course, the use of his position to obtain those illicit profits, are no less reprehensible than the conduct of [Name 046] that was sought to be demonstrated with the statement of the former, and which is limited to a single event, where both [Name 046] and [Name 064] himself would have participated and would have obtained an illicit patrimonial benefit.

<u>Having said the above, it is important to point out that the court, in the judgment, despite insisting that it lacks jurisdiction to rule on the "substantial" requirements set forth in Art. 22 section b) of the C.P.P. (Criminal Procedure Code), dedicated a section to presenting some reasons why it understands that the requirement of lesser reprehensibility (menor reprochabilidad) was indeed met, reasons which can be schematized as follows</u>: <i>i)</i> the relevant point is that the reproach made to the collaborator is less than that of those who were subjected to prosecution, a matter that has nothing to do with the concepts of perpetration (autoría) and participation (participación); <i>ii)</i> reprehensibility (reprochabilidad) is measured from culpability (culpabilidad). The culpability in the criminal wrong (injusto penal) must be taken into account, in accordance with Article 71 of the Criminal Code (Código Penal). The judgment of reproach entails determining the typical, unlawful (antijurídica), and culpable conduct carried out by the collaborator and that carried out by the accused, the capacity for understanding and acting in accordance with the law of both, the reproach to the collaborator and to the accused. Personal conditions [Art. 71 section d) of the Criminal Code (Código Penal)], must be considered to the extent that they influenced the commission of the crime. Therefore, the criminal judge committed no error in considering those conditions to establish that [Name 064] deserved a lesser reproach. It cannot be affirmed that such an assessment is characteristic of a criminal law of the author (derecho penal de autor) (as the dissenting vote of the trial court considers), since the Constitutional Chamber (Sala Constitucional) itself has endorsed the consideration of those personal circumstances when setting the penalty, and furthermore, what is judged is a specific conduct and not what one is, and, in the case of crimes related to public function, the scope of the position held ceases to be an irrelevant condition, as it relates to the typical prohibition; <i>iii)</i> the comparison is regarding "the reproaches," not the conducts or the crimes, nor the penalties, nor the effects of the benefit agreed for the collaborator. It is not appropriate to examine the crime or crimes, when there were several, committed by the collaborator or by the accused. The norm speaks of "conduct" and "punishable act (hecho punible)", whereby the analysis, more than about crimes and penalties, must be qualitative. It is not enough to know the sanctioning parameters and establish the lowest and highest ones, but the examination must focus on the premises of Article 71 of the Criminal Code (Código Penal) regarding, on one hand, the indicated conduct and, on the other, the punishable act (hecho punible). For this reason, it is also not enough to compare in the abstract other illicit conducts and economic benefits that [Name 064] supposedly received; <i>iv)</i> the trial court (tribunal de juicio) must control the concurrence of formal and not substantive requirements, understandably, it cannot control whether the collaborator's conduct is less reprehensible. Here, what was stated before is reiterated, namely, that it is the prosecution that must make that assessment <i>ex ante</i> and that the control of said mechanism corresponds to the judge of the preparatory or intermediate stage, given that the trial court (tribunal de juicio) cannot analyze this matter before issuing the judgment, as this would be advancing its criterion. Now, in the specific case, it argues, the court resolved that the criterion complied with the formal requirements, and therefore it cannot be affirmed that there was no pronouncement. Furthermore, the body competent to control the admissibility of the mechanism (instituto) did so, therefore it cannot be argued that there was a denial of justice when each jurisdictional body fulfilled its tasks, without exceeding its own or arrogating those that do not correspond to it, even if it is not to the liking of one of the parties in the process; <i>v)</i> <u>the conduct of [Name 064] is less reprehensible than that of [Name 041], [Name 033], and [Name 046], whose prosecution it facilitates</u>. Starting from here and following the statements of the mentioned Article 71, the trial court (tribunal de juicio) sets forth the reasons why it classifies [Name 064]'s conduct as "<i>less reprehensible</i>", using a comparative exercise with each one of the accused against whom the opportunity criterion (criterio de oportunidad) was requested.

<u>Regarding [Name 041]</u>, the court points out, <i>regarding the objective and subjective aspects of the punishable act (hecho punible),</i> that this entire situation would not have occurred without the existence of a remunerative proposition made by [Name 041]. There can be a corrupting person without there being a corrupt person, but not the reverse, hence from the objective perspective, [Name 041]'s actions are more reprehensible than [Name 064]'s. <i>Regarding the importance of the injury or the danger,</i> while it is recognized that the conduct of both affects the legal interest (bien jurídico) and the social order, the trigger of the facts is the plan devised by [Name 041], aimed at signing consulting contracts as a front for financing the operation, whereby in the production of social harm and injury to the legal interest (bien jurídico), the greatest contribution was from [Name 041], who acted following a previously established scheme. He knew how to set the plan in motion, could define the adequate amount to make the promise and provoke its acceptance, actions that reveal he acted in a calculated manner, unlike [Name 064], who was unaware of all the illicit machination previously outlined, to the point of not knowing that there were other people involved, or the magnitude of [Name 041]'s corrupting proposals, whereby the greater reproach also falls on the latter. <i>Regarding the circumstances of mode, time, and place</i>, [Name 041] communicated with the other corruptors to generate a financing strategy and for that purpose set out to deceive the corporation [Name 060]. He coordinated approaches with public officials, held meetings with these officials -among them [Name 064]-, and provided information to the other corrupting persons so they could make the payments. That is to say, [Name 041] had been working on the structuring and assembly of a plan that allowed him, through the payment of bribes (dádivas) to public officials, for ICE to acquire the products offered by [Name 091]. In contrast, [Name 064]'s actions not only depend on the described plan, but occurred from the meetings in which both participated, given that the payments he received are singular links within a chain of events enveloping the criminal behavior of the former. <i>Regarding the nature of the determining motives</i>, the harm to the legal interest (bien jurídico) of probity occurred both from the acts of [Name 064] and those of [Name 041]; however, while the former sought to obtain an individual patrimonial benefit, in the case of [Name 041] the sum was greater, as it was he who, together with the other corruptors, disposed of the funds for his illicit purposes. <i>Regarding the other personal conditions of the active subject or the victim to the extent that they influenced the commission of the crime</i>, [Name 041] was the general manager of the company [Name 091], hence he knew how the corporation was organized, and had also worked at ICE and knew its dynamics. He earned the corporation's trust to the point that he was to propose the consultants to be hired and participated in the payment disbursement process for them. He also knew ICE and its relationship with [Name 091], which provided him with the mechanisms to identify the key figures, how to contact them, how to influence their decisions so they would be favorable to the company, and how to obtain the money to overcome their barriers. For his part, [Name 064] was just one of the pieces in that criminal strategy, one of the officials he had to convince with his proposal. Finally, <i>regarding the agent's conduct subsequent to the crime,</i> while [Name 041] has done nothing to repair the damage, [Name 064] has acknowledged his improper conduct and has returned a large part of the money received, whereby the latter's conduct is less reprehensible.

<u>In the case of [Name 046]</u>, the judgment affirms that the reproach [Name 064] deserves is less because: <i>Regarding the subjective and objective aspects of the punishable act (hecho punible)</i>, [Name 046] had a broad public career, greater than that of [Name 064]. <i>Regarding the importance of the injury or danger</i>, although [Name 064] was a public official and [Name 046] was not, the harm to the legal interest (bien jurídico) of probity of greater magnitude is caused by the latter, since he is the promoter of the criminal action. Regarding <i>the circumstances of mode, time, and place</i>, [Name 046] approached [Name 064] and asked him to exercise collection actions before [Name 091] so that he would be paid the money owed to the former. [Name 064] accepted and acted accordingly, for which reason [Name 046] later paid him various sums of money. The majority vote says it was [Name 046] who went to [Name 064], who sought him out at ICE knowing his condition and knowing that [Name 091] was an ICE supplier. Based on command of this background, he proposed the remunerative promise to [Name 064], which adds to his greater reprehensibility. <i>Regarding the determining motives</i>, both were moved by a monetary interest; however, it is [Name 046] who is the architect of the mechanism (the promise and delivery of a bribe (dádiva)) that motivated [Name 064]. <i>Regarding the other personal conditions of the active subject or the victim to the extent that they influence the commission of the crime</i>, it is appreciated that [Name 046] used the knowledge obtained from working in the public sector (he held a position at ICE) and his contact with people from the national political sphere, among them [Name 033], to manage to communicate with [Name 064]. Finally, regarding <i>the agent's conduct subsequent to the crime</i>, [Name 046] has taken no action to repair the damage, whereas [Name 064] has, delivering money and movable goods.

<u>In the case of [Name 033]</u>, the court indicates, <i>regarding the objective and subjective aspects of the punishable act (hecho punible)</i>, that this accused held one of the most relevant positions in the public function, a position that is significant for the commission of the attributed crime, since not just anyone can be the active subject of the crime of bribery (cohecho). Furthermore, being the [...] is not a personal condition that only relates to the typicality of the conduct, but also has to do with the legal interest (bien jurídico) -probity- because it does not generate the same social damage for a public official of the lowest rank to be convicted of this crime as it does for one who occupies the summit of the public administration. Although [Name 064] was also a public official, [Name 033] had higher rank and hierarchy and, by being the [...], a probative conduct was required of him; it was he from whom honest behavior oriented exclusively to the fulfillment of the public interest was expected, which is why the reproach he deserves is greater. <i>Regarding the importance of the injury or danger</i>, although both [Name 033] and [Name 064] contributed to causing the injury, the most significant contribution, the majority vote says, was made by [Name 033], since by typifying conducts like bribery (cohecho), the legislator intended to safeguard probity, rectitude, honesty, and impartiality in the fulfillment of the position, so that those who occupy them for remuneration do so interested in satisfying the public interest and not their own interests, even less to illicitly enrich themselves through that means. The [...], by having high popular representation, enjoys broad authority and is placed on a central plane, both for public control and for the integration of the nation and the definition of its course. It is not just who appoints the cabinet and removes it, he is the one who heads it and directs relevant tasks both nationally and internationally. And if the head falters, the body tends to collapse. It is concluded that the falterings in [Name 033] are those that mostly contribute to the damage. <i>Regarding the circumstances of mode, time, and place</i>, the trial court (tribunal de juicio) considers that while one might think that [Name 064] was the one who contacted [Name 033] to convey [Name 041]'s proposal, the development of the crime thus being the former's initiative, it must be considered that [Name 064] went to [Name 033] because of the trust existing between the two, because there was political support from one for the other, as well as a work nexus and a friendship relationship ([Name 064] was a member of the Board of Directors of ICE and his appointment corresponded to the government council presided over by [Name 033], also being a presidential advisor). Moreover, before [Name 064] conveyed the described proposal to [Name 033], the latter had already urged the former to participate in a prior criminal act, namely, when he asked him to intercede before [Name 091] so that the payment of money to [Name 046] would be honored. He even asked him to attend to this matter taking advantage of a trip [Name 064] would make outside the country. Thus, instead of [Name 033] calling [Name 064] to account and demanding probative conduct from him, what he did was urge him to accept the proposal, to ask for a higher percentage, and he even proposed the formula for distributing the money. That is to say, although [Name 064] is the one who had to fulfill the proposal, he turned to [Name 033] to make a decision, since he knew he could not decide on his own. This reveals the determining role of [Name 033], he being the one who determined [Name 064]. <i>Regarding the nature of the determining motives</i>, the legal interest (bien jurídico) of probity was injured by both defendants and to that extent, the reproach was similar. Revealing is the economic interest [Name 033] demonstrates, when upon hearing [Name 064], the first thing he does is ask how much the amount to be received will be and then decides the distribution formula, inflated in his favor, and it is what later, also a reflection of [Name 064]'s ambition, leads the latter to tell him he does not agree with such distribution. <i>Regarding the personal conditions of the active subject or the victim to the extent that they have influenced the commission of the crime</i>, the trial court (tribunal de juicio) indicates that when [Name 033] learns of the corrupting proposal he is the maximum authority of the country and one of the few officials whom the majority of the population has elected with their vote, for which great zeal was expected of him, as well as an inexhaustible effort to be correct in the exercise of his function. Despite this, he opted for the opposite, he promoted the acceptance of the corrupting proposal and benefited from the bribes (dádivas) delivered. The one who declined his duty of probity, the <i>a quo</i> notes, was not any public official, but the one of the highest hierarchy, even determining [Name 064] to accept the proposal. In the same way, [Name 064] did not go to just anyone to inform them of the proposal, but to the [...] of all Costa Ricans and head of the administration, moreover an influential figure for [Name 064], not only due to their friendship but due to their functional link. To that extent, we have on one hand [Name 064], director of an autonomous institution and presidential advisor, and on the other [Name 033], the maximum leader with decision-making power over the appointments that the former held and from whom it was required to a greater degree to behave in accordance with the law, as the reproach for not doing so is greater. <i>Regarding the agent's conduct subsequent to the crime</i>, [Name 033] has taken no action to reduce the impact of the damage caused by his actions, whereas [Name 064] accepted his responsibility, was willing to agree to an abbreviated process (abreviado) and serve a custodial sentence for which house arrest did not apply as credit. This option did not prosper because those who appeared as complainants (querellantes) in this process objected, and the prosecution opted for the opportunity criterion (criterio de oportunidad). [Name 064], moreover, appeared at the debate and accepted his behavior, and has also handed over part of the money received and two vehicles. Although the defense has questioned that he has not returned the entirety of the money and that the vehicles are old, the truth is that, if one starts from that parameter, one would have to conclude that [Name 033] has returned nothing.

The trial court concludes its exposition by pointing out that the foregoing reasoning explains why, at the time, it considered that it could not rule on the issue of greater or lesser culpability (reprochabilidad), namely, because it is the purview of another court and because impartiality could be compromised by conducting that analysis, however “abstract” it might be (folios 15.395 a 15.415 front of volume XXXI). Thus far the court's argument. <u>For the undersigned judges of this resolution, the foregoing reasoning is erroneous not only for what was stated <i>supra</i>, when examining the issue of the reproach that can be made against each defendant in relation to [Nombre 064], but also for what will be set forth below</u>. In the first place, it is evident that to determine the intensity of the reproach in the case of [Nombre 041], the <i>a quo</i> considered not only his guilt in relation to the specific fact that was sought to be proven through the statement of [Nombre 064] (namely, that the former made a promise of a bribe to the latter at the [Nombre 094] restaurant and then transferred a large sum of money to him through [Nombre 058].), but also the guilt for all the other facts it deemed proven against him <u>and which were unknown to [Nombre 064] at the time the prosecutorial discretion criterion (criterio de oportunidad) was negotiated</u>, e.g., that he was a co-perpetrator of a criminal plan involving other public officials, that there were approaches made to them and delivery of financial compensation under similar modal and temporal circumstances; or, that [Nombre 041] had at his disposal larger sums of money than [Nombre 064], to the extent that he was the one who identified the public officials to be paid and the amounts. As can be seen, we are speaking of matters that are extraneous to the facts that, at the time of the negotiation, were sought to be proven with the testimony of [Nombre 064], and thus they could not be considered when weighing the issue of reproach (at least not for the purpose of legitimizing the prosecutorial discretion criterion), nor can they be taken into account now, <u>since that examination (<i>ex ante</i>) must necessarily be retraced to the date on which the agreement was signed, bearing in mind the facts that were sought to be elucidated with the collaborator's statement, and not those that, after the trial, have been deemed accredited with his help</u>. The undersigned do not ignore that [Nombre 064]'s statement was an indication that allowed the trial court to confirm that, besides the collaborating defendant, there were other public officials involved and that [Nombre 041], by mutual agreement with [Nombre 028], used the corporation [Nombre 058] to legitimize and then distribute the funds originating from [Nombre 060]. Nor is it possible to ignore, making an <i>a posteriori</i> examination, that [Nombre 064]'s statement and, in particular, his affirmation that a promise of a bribe was made to him prior to the contract for the 400,000 lines, was the most important indication to which the trial court resorted to deem it proven that a similar promise was made to the other charged public officials. <u>However, these consequences derived from [Nombre 064]'s statement, which were not contemplated when negotiating the prosecutorial discretion criterion, cannot be considered for the purposes of establishing the greater or lesser reproach that can be made against [Nombre 041] compared to the collaborating defendant, since the latter's statement was negotiated solely to be used against [Nombre 041], [Nombre 033] and [Nombre 046], and not to facilitate the criminal prosecution of other defendants</u>, e.g., [Nombre 028], or of the public officials who also received financial compensation and whose link to the facts was unknown even to [Nombre 064] himself. That is to say, in the case of [Nombre 041], at the time of negotiating the prosecutorial discretion criterion, what could be proven with the collaborator's statement was that the former had made him a promise of a bribe and that, after the contract award, he gave him a sum exceeding two and a half million dollars through [Nombre 058], which he shared with [Nombre 033]. Thus, to facilitate the criminal prosecution of a particular conduct, the requesting body chose to guarantee impunity for someone who, besides accepting that promise and receiving the mentioned sum, received other not insignificant financial compensation, all in his capacity as a public official, breaching the duties entrusted to him. It is important to insist that for examining the reproach, the significance that [Nombre 064]'s statement had in proving other facts cannot be considered, since this was not foreseeable at the time the criterion was negotiated, and so much so that the application of the legal mechanism was requested only to the detriment of [Nombre 033], [Nombre 041], [Nombre 078] and [Nombre 046]. Finally, it is important to note that the trial court's thesis, in the sense that the conduct of the one who pays or corrupts is more reprehensible than that of the public official who receives the bribe or allows himself to be corrupted, lacks any foundation, for several reasons. The first, because, according to the crime of penalty for the corruptor, the sanction applicable to the latter is the same as that provided by legislation for the public official. The second, because unlike what happens with the corruptor, it is the corrupted party who disregards his duties and compromises the public's trust in its institutions, by using his position to enrich himself. That being the case, to argue, without more, that [Nombre 041]'s conduct is more reprehensible than that of [Nombre 064] because the former made the promise and the latter merely accepted it, is -at the very least- an assertion that finds no support whatsoever. Regarding [Nombre 033], the same situation obtains. From the arguments cited by the court, it is extracted with crystal clarity that the greater reproach against him rests on the hierarchy of the public functions he performed. Any analysis of the gravity of the conduct actually carried out by the then [...] was set aside, thus avoiding comparing it with the conduct that was left unprosecuted. It was not considered that [Nombre 064], at the time of the negotiation, appears as an individual involved in multiple criminal acts of a similar nature, which shows he was prone to receiving bribes; that it was he and not [Nombre 033] who, according to the majority opinion itself, assumed authorship of the criminal act and who also, of the two, obtained the greater financial benefit, since despite [Nombre 033] requesting 60% of the criminal profits, [Nombre 064] had no qualms about changing that distribution, deeming it “unfair.” There is no reason to doubt that [Nombre 033] had a hierarchical relationship with [Nombre 064] at the time of the facts. It is not unknown that he had appointed him minister, then presidential advisor, and then, through the Government Council he presided over, appointed him as a board member of ICE. This, which certainly from an ethical perspective makes [Nombre 033]'s conduct more censurable (since if things happened as [Nombre 064] narrated, he should have reported it immediately instead of supporting his intentions), from a legal standpoint does not allow establishing that the reproach applicable to the latter is of lesser entity if everything else is considered. Even so, it is important to note that in the case of [Nombre 064], the condition of public official also played a central role, not only regarding the contract for the 400,000 lines, but for all the other receipts of bribes in which he figured as a suspect. Finally, note how the lower court, insofar as it considered the conduct of [Nombre 041] and [Nombre 046] more reprehensible with the argument that they were the ones who promoted the execution of the crime, the ones who took the initiative to seek out [Nombre 064], disregards this reasoning in the case of [Nombre 033], concluding that although it was [Nombre 064] who decided to convey the proposal to [Nombre 033], this does not make his conduct more reprehensible since he acted thus because of the trust and support given to him by the then president. That being the case, while it is true that [Nombre 033] was, at the time of the events, the highest-ranking public official, this circumstance alone does not justify the decision to guarantee impunity to [Nombre 064], since the facts in relation to which criminal prosecution is waived (and which include that with respect to which it is affirmed that [Nombre 033] is the instigator and [Nombre 064] the instigated author), contrary to what the <i>a quo</i> points out, deserve a greater reproach than the conduct sought to be prosecuted. Not accepting this also leads to the understanding that reproach, instead of depending on the gravity of the act and the personality of the participant, responds <i>exclusively</i> to the personal characteristics of the active subject and, in the case of public officials, to the position held, such that regardless of the conduct actually performed, the higher the hierarchy, the greater the reproach will always be. In summary, for all the foregoing, it is concluded that the prosecutorial discretion criterion granted to [Nombre 064] is illegal. As a consequence of the foregoing, the statement he gave at trial as a collaborating defendant is illicit evidence and is hereby declared as such. For greater abundance, this court will proceed to resolve some questions raised by [Nombre 033] regarding the credibility that can be granted to [Nombre 064]'s account, on the occasion of which this appellate court concludes it is implausible.

**4) <u>Regarding the assessment of the testimony given by [Nombre 064] at trial</u>**. One issue beyond all discussion is the trial court's obligation to analyze the statement given by collaborator [Nombre 064] in accordance with the rules of sound criticism (sana crítica). The court weighed it, concluding—erroneously, as this chamber deems—that it was credible. For these purposes, it took into account several circumstances, some general and others particular, described in relation to each defendant. <u>From folio 16.073 front onwards of volume XXXIII, the appealed judgment explains</u>: **<i>i)</i>** [Nombre 064]'s statement, contrary to what was said by the defendants' lawyers, was plausible and disinterested, since it was conceived, not under the protection of a prosecutorial discretion criterion, but months before it was agreed upon, under more onerous conditions for the collaborator, namely, on the occasion of an abbreviated procedure (procedimiento abreviado). In this, he accepted his responsibility and was willing to have a sentence of 4 years of imprisonment imposed, a procedure that did not prosper due to the opposition of those who requested to intervene as private prosecutors (querellantes), among them persons close to [Nombre 033]; **<i>ii)</i>** faced with the expectation of submitting to an abbreviated procedure, [Nombre 064] handed over the sum of $1,401,000 and two vehicles, by way of financial compensation; **<i>iii)</i>** to think, as Mr. Gairaud does, that [Nombre 064] accepted such a custodial sentence because he knew that due to the home detention suffered, he would be granted the benefit of Article 55 of the Penal Code, is to ignore that from May 9, 2005, the process having begun at the end of 2004, [Nombre 064] was willing to accept the facts and be sanctioned; that by May 2005, two years had not yet elapsed and, therefore, half the sentence could not be deemed served, and furthermore, the granting of that benefit is the purview of the National Institute of Criminology (Instituto Nacional de Criminología) and not the Public Prosecutor's Office (Ministerio Público); **<i>iv)</i>** from the very beginning, [Nombre 064] was agreeable to having his bank accounts, cards, and phone calls investigated and offered what was within his reach for the investigation; likewise his wife and his mother. His first statement took place on September 30, 2004, and by October 5, he was already authorizing the opening of his accounts and the obtaining of bank information; **<i>v)</i>** on October 12, 2004, he showed interest in compensating the damage caused when he proceeded to deliver to the criminal court a certificate for the sum of $1,401,241.36; **<i>vi)</i>** as already indicated, on May 9, 2005, 8 months after the case was initiated, he agreed to the application of an abbreviated procedure under the terms stated, namely, serving a sentence of four years imprisonment without any benefit, obligating himself to give testimony at trial and paying the mentioned sums to the Attorney General's Office of the Republic (Procuraduría General de la República) and to ICE, as well as handing over two cars. The court points out that by then, [Nombre 064] could not become eligible for the benefit contemplated in Article 55 of the Penal Code; that such an option was not negotiated with the Public Prosecutor's Office nor was it within the competencies of this body. It adds that if the proceeding in question did not materialize, it was due to the refusal of the private prosecutors Fernando Apuy Sirias and Freddy Coto Varela, where at least the former had ties to [Nombre 033]. This is what, in the end, led the prosecution to agree on a prosecutorial discretion criterion. It is not true, therefore, that out of the blue [Nombre 064] was benefited with the prosecutorial discretion criterion so that, in exchange for his impunity, he would “sink” the other defendants; rather, it was the actions carried out by [Nombre 033]'s associates that prevented the application of the abbreviated procedure, given that already from this, [Nombre 064] had committed to testify at trial; **<i>vii)</i>** abbreviated procedures were negotiated with other defendants in this case, with sentences of three years imprisonment and the benefit of conditional execution (v.g., [Nombre 068], [Nombre 105]). Thus, it cannot be said that there was preferential treatment for [Nombre 064] when a sentence of four years imprisonment was agreed upon with him; **<i>viii)</i>** according to the dissenting opinion (voto de minoría), [Nombre 064] was allowed to keep about one million dollars in bribes in exchange for testifying, but there is no proof whatsoever of this. What is on record is that with or without an abbreviated procedure, with or without a prosecutorial discretion criterion, [Nombre 064] handed over a sum of $1,401,241.36 dollars since October 2004. For the majority opinion, if [Nombre 064] had wanted to keep some money in exchange for his impunity, he would not have handed over that sum, much less would he have negotiated such a possibility. Furthermore, according to the dynamic insinuated by the defense, if the Public Prosecutor's Office wanted to compensate [Nombre 064] for his statement, one would have to think that it also wanted to compensate him when, for that same sum, it agreed to apply the abbreviated procedure and impose 4 years of imprisonment, or that it wanted to compensate [Nombre 105] when he only returned $100,000 after having received more than $1,000,000, but that it did not want to do so with [Nombre 068] when it negotiated an abbreviated procedure with him and the return of more than $1,000,000. This reflects that the negotiation with the defendants was not contingent on the exact return of the amount from which they benefited; **<i>ix)</i>** although [Nombre 064] did not answer some questions from the lawyers of [Nombre 033], [Nombre 041] and [Nombre 018], this was because he was questioned regarding facts in which his account would self-incriminate him, hence he was entitled to the right of abstention, or because they were facts extraneous to the accused. In any case, it was the court that admonished him (the collaborator) in that sense, so this situation in no way undermines his credibility. <u>Starting from folio 16.085 front of the same volume, the <i>a quo</i> undertook the task of setting forth the reasons why it considers that [Nombre 064]'s account can be verified with other direct or indirect evidentiary elements. It clarifies, however, that this verification is in relation to the general aspects of his version and not with respect to each of the facts related by him, as this would render the prosecutorial discretion criterion moot</u>: **<i>a)</i>** [Nombre 033] was [...] from May 8, 1998 to May 8, 2002. **<i>b)</i>** [Nombre 064] had an extensive career in public service. He was minister counselor in charge of business at the Embassy of Chile from 1978 a 1983; deputy in the periods from 1986 a 1990 and from 1990 a 1994; minister in the administration of [Nombre 033] from May 1998 a July 1999. Subsequently, in this same administration, from August 1, 1999 to May 9, 2002, he was appointed presidential advisor and general director of the presidential house. He was also appointed by the Government Council as a director of ICE, starting August 3, 1999, both positions (as minister counselor or general director of the Presidency of the Republic (Presidencia de la República) and as a member of the board of directors of ICE), held simultaneously (of the foregoing, there is abundant evidence, e.g., items 15, 303, 304, 305, 638.1 and 638.2, all cited at folio 16.091 front and following). From all this, it is inferred that [Nombre 064] was a person close to [Nombre 033], that he depended hierarchically on him. It was also ruled out that [Nombre 064] harbored feelings of animosity against [Nombre 033]; **<i>c)</i>** despite ICE being an autonomous institution, it maintained a link with the central government. This is not solely the result of institutional practice but of the legal system that provides for it, by leaving the appointment of the directors of the autonomous institutions in the hands of the Government Council and attributing to the [...] the power of direction and coordination of tasks; **<i>d)</i>** there is abundant evidence that shows that, before the events investigated here, the policy of giving attentions to public officials of ICE was common. [Nombre 041] spontaneously accepted having paid bribes to public officials. [Nombre 105] and [Nombre 078] submitted to a conformity procedure (procedimiento de conformidad), with the consequent acceptance of charges. There are also three ICE officials who have admitted their responsibility ([Nombre 068] in an abbreviated procedure, [Nombre 001] spontaneously admitted to a media outlet having received money from [Nombre 091], and [Nombre 064] admitted it before the court), thereby corroborating the collaborator's statement to the effect that [Nombre 041] and [Nombre 078] made him a promise of a bribe and that he accepted it after submitting it to [Nombre 033]'s knowledge; **<i>e)</i>** lunches and other activities between the employees of [Nombre 091] and public officials were frequent. There were meetings between the corruptors and [Nombre 064], [Nombre 001], [Nombre 018], [Nombre 063] and [Nombre 022]. There was also another series of attentions for the public officials, e.g., the payment of a travel ticket to Paris for “[Nombre 064]” and his wife (evidence No. 55, folio 91), or hotel reservations for [Nombre 022]. **<i>f)</i>** Some public officials frequented the facilities of [Nombre 091], for example, [Nombre 022] and [Nombre 001]. Likewise, [Nombre 041] sent some public officials ([Nombre 022], [Nombre 001] and [Nombre 018]), envelopes containing the legend “confidential and personal” to their homes and offices. He also sent them to the corruptor [Nombre 028]. **<i>g)</i>** [Nombre 046] had a relationship with [Nombre 033]. According to [Nombre 064], he carried out collection efforts from mid-2000 before [Nombre 041] at the request of [Nombre 046] and through the intercession of [Nombre 033]. [Nombre 046] wrote an opinion piece (evidence No. 592.7), where he affirms that he, at the request of [Nombre 078], carried out a transaction for [Nombre 110] (a company linked to [Nombre 033]) and that he never charged any commission for favors done for two [...], one who appointed him ambassador and another bank director (the latter being [Nombre 033]). With this, the court says, the relationship between [Nombre 046] and [Nombre 033] is corroborated, and although the former exonerates the latter of responsibility in that article, the true explanation behind those payments is already known. **<i>h)</i>** Two of the directors appointed in the [Nombre 033] administration are linked to these acts of corruption ([Nombre 064] and [Nombre 068]). A third, [Nombre 022], although appointed in the Figures Olsen administration, had ties to [Nombre 033]. **<i>i)</i>** Before making the proposal to [Nombre 064], [Nombre 041] had already initiated a similar approach with respect to [Nombre 001], meeting with him on Friday, December 1, 2000, also attended by [Nombre 078], [Nombre 111] and [Nombre 112]. Evidence No. 81 proves that this lunch existed, <i>“… which allows one to appreciate how the corruptors were resorting to a similar strategy for the remunerative proposals, and not only with respect to [Nombre 064] …”</i> (f. 16.129 front); **<i>j)</i>** At the time the meeting took place at the [Nombre 094] restaurant between [Nombre 064], [Nombre 041] and [Nombre 078], and then, the following day, between [Nombre 064] and [Nombre 033] at the latter's house, all those involved were in the country. The call from [Nombre 078] to [Nombre 064] occurred, the court says, on December 1, 2000, a date on which he also met with [Nombre 041] and [Nombre 001]. The meeting at [Nombre 094] was on Saturday, December 2, 2000, and the meeting between [Nombre 033] and [Nombre 064] took place on Sunday, December 3, 2000. According to the court, if [Nombre 064] were lying, a coincidence could not have been achieved between the data obtained from the migratory movements of those involved ([Nombre 064], [Nombre 078], [Nombre 041] and [Nombre 033]), [Nombre 041]'s expense reports (which account for a meeting on December 1, 2000 between [Nombre 078], [Nombre 041], [Nombre 111], [Nombre 112] and [Nombre 001]) and the flight itineraries. **<i>k)</i>** The existence of these meetings is also proven by considering that [Nombre 064] voted in favor of awarding the 400,000 lines and that months after that vote, he received the bribe which he shared with [Nombre 033]. The distribution of the monies reflects a strategy aimed at concealing their origin. Furthermore, [Nombre 064] received a sum similar to other defendants but doubled, which reveals that the corruptors had been informed they were paying two officials and not one. In addition, there is coincidence in the modal and temporal circumstances for the delivery and receipt of the bribes paid to the three directors of ICE, namely [Nombre 022], [Nombre 068] and [Nombre 064], as well as to [Nombre 001] and [Nombre 018]; **<i>l)</i>** there is evidence that although the quantity of 400,000 cell lines was formally mentioned until December 5, 2000, this data was previously known by the corruptors, just as [Nombre 064] affirmed. There is a note dated November 10, 2000, where [Nombre 098] points out to [Nombre 041] that although the announcement made by [Nombre 095] about the future tender for 600,000 GSM cell lines was favorable, they had to maintain pressure to prevent them from continuing to favor Lucent and Ericsson, since it seemed that ICE planned a purchase of 200,000 to expand the current ones (TDMA). This reveals that the corruptors were informed of what was happening and how, despite the migration announcement, they thought [Nombre 091] should not stand idly by, but should accelerate that process (as also suggested by the note of November 22, also sent by [Nombre 098] to [Nombre 041] regarding the appointment of [Nombre 001], evidence No. 396), aside from noticing that if a direct purchase of 200,000 TDMA lines were made, 400,000 lines in GSM technology would remain. According to the judges, that is the data that [Nombre 041] and [Nombre 078] were handling as of November 22, 2000, and, therefore, it is ruled out that [Nombre 064] erroneously constructed his statement, anticipating information that would not be known until December 5, 2000. **<i>m)</i>** [Nombre 091] sought to be treated with equity and felt the need to defend its rights. In the session of December 5, 2000, in which the comprehensive telecommunications plan project was approved, a proposal was presented to acquire 600,000 lines, specifically, 200,000 a to the companies Lucent and Ericsson in TDMA technology and 400,0000 to be awarded to [Nombre 091], Siemens, Nortel, Ericsson and Lucent with GSM technology. In a second stage, 200,000 mobile lines would be approved for the third-generation (3G) tender. It is observed how, although the opening to GSM is proposed through the award of 400,000 lines and the inclusion of [Nombre 091] as a bidder, a “right of first refusal” is also respected for the companies Lucent and Ericsson, which denotes an ambivalent behavior on the part of ICE, continuing to promote the purchase of TDMA lines. The evidence also shows that [Nombre 091] had been denied participation in cell line contracting, which changed as of February 27, 2001, after the remunerative promises were made, when it was considered by ICE's board of directors as a possible bidder in the acquisition of the 160,000 cell lines by direct contracting, given that the contracting for the 400,000 lines was already underway at that time. Likewise, the evidence accredits that on August 28, 2001, the contract for the 400,000 cell lines was awarded to [Nombre 091], a session in which [Nombre 064], [Nombre 068], [Nombre 022], as well as other ICE public officials were present. **<i>n)</i>** It was ruled out that [Nombre 064] was paid only for the award of the 160,000 lines, since this defendant was not present at Session No. 5271, where the matter was decided. **<i>o)</i>** It was demonstrated through abundant evidentiary elements—expert, documentary, and testimonial—that [Nombre 064] received money from [Nombre 060] and transferred part of it to [Nombre 033]. Thus far the trial court's reasons for granting credibility, according to its criterion, to the statement given by [Nombre 064] at trial. <u>Having analyzed the foregoing indications, the undersigned appellate judges consider that the <i>a quo</i>'s conclusion, to the effect that [Nombre 064]'s statement is credible regarding the promise of a bribe that was made to him in relation to the contract for the 400,000 GSM lines, is contrary to the rules of sound criticism</u>.

It is undeniable that [Nombre 064] gave a statement from the beginning of this process, however, <u>it was many months and several investigative statements later</u> that he claimed to have received a promise of a gift from [Nombre 078] and [Nombre 041] related to the contract for the 400,000 GSM telephone lines. Now, it is not that [Nombre 064] initially kept silent about the reason for the economic compensation received, only to later decide to speak about it, <u>but rather that he expressly and repeatedly had indicated to the Public Prosecutor's Office that the money received was offered and given to him after the award, as a "reward"</u>. That is, [Nombre 064] ruled out that a promise of a gift had been made to him before the award of the aforementioned contract. According to what is extracted from the review of the audio and video recordings of the trial, specifically regarding the testimony given by [Nombre 064] before the trial court, as well as from the appealed judgment itself, we have that on several occasions and based on Article 343 of the Code of Criminal Procedure, the statements that the collaborating accused made before the requesting body were introduced where they contradicted what he was stating in the trial, <u>establishing with crystal clarity that since September 30, 2004, and <i>repeatedly</i></u> (see, e.g., the expanded statement given on October 15, 2004, second paragraph of folio 9,003, introduced by reading into the trial as recorded at f. 14,996 front of the judgment, volume XXXI), [Nombre 064]<u> stated that it was after the award, and even when the contract execution was underway, that he was contacted to inform him that there was a "reward" from [Nombre 091]</u>. As is easily concluded, the collaborating accused was categorical in ruling out that a prior promise had been made to him, it being some time later, on May 9, 2005, <i><u>when for the first time he indicated something completely different</u></i>, specifically, that [Nombre 041] and [Nombre 078], in late 2000 or early 2001, at the [Nombre 094] restaurant, made him a promise of a gift in exchange for him helping [Nombre 091] with the migration to GSM technology, with the implementation of public tenders instead of direct contracts, and with his favorable vote for the company in the contract for the 400,000 lines (see f. 2,992 to 3,010 front, volume VIII). At the request of a party, the court introduced the second paragraph of folio 2,999, which, as relevant, states: <i>"So then Mr. [Nombre 078] arrived accompanied by Mr. [Nombre 041]</i> <i>, there was an exchange of introductory phrases and Mr. [Nombre 078] tells me that they are worried, that they are increasingly certain that the tender will be bypassed to harm [Nombre 091]. He also told me that Mr. [Nombre 046] had pointed out to them that he had the power to bring down said tender, even with help from Zapote, for those reasons they ask me for help so that the process is not aborted and that if everything goes well the company would give me a royalty. I asked him what it was that I should do, then they told me that they simply needed the tender to happen, I asked them if there was someone to talk to and they said no, that the only thing they needed was for the tender not to be aborted. Afterwards I asked them what the reward consisted of and they indicated that it was between one point five percent (1.5%) and two percent (2%) of the tender, excluding expenses..."</i> (Transcription made at f. 15,001 of the judgment, volume XXXI). <u>That is, it was approximately eight months after giving his first statement that [Nombre 064] stated that there was a promise of a gift before the contracting of the 400,000 lines, the same one he shared with [Nombre 033]</u> <u>.</u> The statement in which [Nombre 064] changed his version of the facts <u>began to be given on the same day he signed an agreement with the Public Prosecutor's Office for an abbreviated procedure to be applied</u>, in which the requesting body conditioned its consent on [Nombre 064]'s expanded investigation meeting certain terms, namely, <i>“… clearly set forth the existence of negotiations and a promise of money delivery prior to the approval of the contract for the 400 K between the Instituto Costarricense de Electricidad and the company [Nombre 091]. Likewise, the accused [Nombre 064] will reveal the name of a hearsay witness, who has knowledge because the accused [Nombre 064] so informed them, of the promise of money delivery prior to the approval of the ICE-[Nombre 091] contract. On the other hand, he will give an even broader statement regarding the delivery of money to the co-accused [Nombre 033], clarifying each of the transactions carried out concerning the money corresponding to the gifts or payments from [Nombre 091]. He will also refer to the knowledge that the co-defendant [Nombre 033] had of the promise of gifts or payments made by [Nombre 091], as well as his approval for [Nombre 064] to receive said money… The agreed penalty will be four years of imprisonment without any type of reduction.” </i>(F. 2, evidence No. 308, prior agreement document for the application of an abbreviated procedure). It is true, as the trial court points out, that the abbreviated procedure was not applied for reasons beyond [Nombre 064]'s control and that the agreed penalty did not allow for the application of benefits such as the conditional suspension of the sentence. This circumstance, however, also does not allow the conclusion that [Nombre 064]'s first version was false and that the second was true, especially considering that the latter was given precisely under the protection of a negotiation with the Public Prosecutor's Office, which from then on, conditioned the abbreviated procedure on [Nombre 064] including in his account certain information (specifically, about the promise of a gift made to him before the award, the identification of a hearsay witness, and greater details about the conduct of [Nombre 033], the knowledge he had of the promise, and the consent he gave for [Nombre 064] to receive the money). That is, upon negotiating with the requesting body, [Nombre 064]'s account changed drastically regarding a core aspect, concretely, regarding the existence of a promise of a gift prior to the award. It is an inconsistency that acquires enormous importance when assessing the credibility of the statement, not only because the configuration of the crime—aggravated corruption by improper bribery—depends on the demonstration of the prior promise made by [Nombre 041] and [Nombre 078], but because contrary to what was indicated by the <i>a quo</i>, <u>regarding its existence, we only have the word of the collaborating accused himself</u>. According to the appealed judgment, what was stated by [Nombre 064] is true because all those involved were in the country on Saturday, December 2, 2000. This, by all accounts, is untenable, since from that sole piece of evidence (the presence of [Nombre 041], [Nombre 078], and [Nombre 064] in national territory) one could not reasonably and naturally extract the conclusion that the meeting existed, much less that the promise was made. It is important to note that while there is proof that [Nombre 078] and [Nombre 041] met on December 1, 2000, with [Nombre 001] and other people (see voucher on folio 6 bis and invoice on folio 7, settlement on folio 1, evidence No. 81 that this Chamber has had in view) and that [Nombre 041] also met with [Nombre 001] on November 29, 2000 (see also evidence No. 81), this is absolutely inconsequential for what is relevant here, since, as the same court acknowledged, these meetings were frequent, and it cannot be asserted that they were aimed at making illicit proposals to those public servants (f. 16,112 front, volume XXXIII). Therefore, it is a mere supposition by the judges who sign the majority opinion to conclude that the meeting that took place one day before the one described by [Nombre 064] allows demonstrating that <i>“… the corrupters were resorting to a similar strategy for remuneration proposals, now with respect not only to [Nombre 064], but also to another co-accused and ICE official...”</i> (F. 16,129 front, volume XXXIII). The same can be said regarding the meeting between [Nombre 064] and [Nombre 033]. The fact that both were in national territory, a piece of evidence verified through documents accounting for their migratory movements, does not even allow establishing <i>with a degree of probability</i> that the aforementioned meeting existed. It is important to remember that [Nombre 064] is not a witness in this process, but a collaborating accused who, as such, is not obligated to tell the truth or testify under oath. His contribution, moreover, is not gratuitous. It is articulated with the knowledge that, if he satisfies the expectations for which the exercise of criminal action against him was suspended (Art. 23 C.P.P.), he will obtain, as a benefit or reward, the extinction of that action. While that circumstance alone would not permit denying credibility to his word, the truth is that it must be weighed with extreme caution, to the point that additional evidentiary elements that ratify his words are indispensable. In the same vein, Zúñiga Morales states: <i>“For some, when an accused informs on others, claiming that they committed the act with him or that they intend to commit more crimes, the authorities are obliged to act with the utmost prudence and caution, without despising that information, but granting it only the value that corresponds to a notitia criminis. If an accused decides to reveal data that another would jealously guard, 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 through 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 low credibility they may deserve, nor the prior contradictory statements they may have given. Although sometimes the collaborating accused 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 informed on. In certain cases, this can lead to a lack of depth in police investigations and, in close relation to it, to a stagnation of investigative techniques.”</i> (ZÚÑIGA MORALES, <i>op. cit.</i>, p. 595). This is a concern not exclusive to our environment. In other countries where the figure of the “repentant” has been incorporated in the context of the fight against organized crime, questions are also raised regarding the procedural assessment that can be made of their statements and the need, for the purpose of deeming the account credible, for corroboration through other means of proof: <i>“The simple denunciation of other individuals made by the self-declared guilty accused, who offers his testimony incriminating other participants in the criminal organization seeking better punitive treatment, raises serious evidentiary problems. The denouncing statement of a co-accused can hardly be identified with that of a procedural witness, insofar as the very interrogation of the accused is constructed as a means of defense that allows him not to respond to the questions raised and, even, to lie about the facts, while the procedural witness is obliged to tell the truth about the facts under the threat of being charged with the crime of perjury. The introduction into legal systems of the 'hybrid figure of the accused-witness' opens the door to the danger of the 'degeneration of the evidentiary system.'” </i>(BENÍTEZ ORTÚZAR, <i>op. cit.</i>, p. 29.). In this particular case, what is being assessed is whether the testimony given by an accused regarding the existence of a fact (the promise of economic compensation prior to the award) is credible, when he himself throughout the process had expressly denied the point, stating emphatically that the sums received <u>were offered to him after the award of the contract for the 400,000 cellular telephone lines</u>. This Chamber has no doubts about the discomfort experienced by the leaders of [Nombre 091] during the years 1999 and 2000, since due to the use of captive technologies—TDMA—in Costa Rica, [Nombre 091] was practically left out of the mobile telephone market. Nor does it have doubts about the strategy that, at least formally, the cited company designed to solve that problem (route of action of [Nombre 124]) and that contemplated approaches to key figures in different areas of national life; about the links between [Nombre 064] and [Nombre 033], as well as between the former and other public officials with the company [Nombre 091] and its representatives. It was also demonstrated that [Nombre 041], through two anonymous companies ([Nombre 058] and [Nombre 114]), transferred funds to a series of officials linked to the telecommunications field after [Nombre 091] obtained the award of the 400,000 lines, officials among whom was [Nombre 064], who, it was also demonstrated, transferred part of those funds to [Nombre 033] or to persons, natural or legal, close to him. <u>However, what cannot be established <i>with a degree of certainty</i> is that [Nombre 041] and [Nombre 078] made a promise of economic compensation to [Nombre 064] at the [Nombre 094] restaurant, located in Alajuela, before the contract for the 400,000 lines was finalized and, much less, that this promise was made in exchange for that public official acting in three areas, concretely, favoring the migration to GSM, promoting the use of public tenders instead of direct contracts, and voting favorably for [Nombre 091] in the aforementioned contract. Likewise, except for what was stated by [Nombre 064], it cannot be taken as proven <i>with certainty</i> that he communicated the cited promise to [Nombre 033] the next day, in the terms explained by the requesting body</u>. One cannot lose sight of the fact that regarding the cited fact (the promise of a gift made in December 2000), the only thing the <i>a quo</i> had was the statement of the collaborating accused, which by all accounts cannot be considered reliable because it has varied over time; because the changes occurred precisely upon negotiating with the Public Prosecutor's Office, to the point that the abbreviated procedure was conditioned on what [Nombre 064] would state regarding the promise of a gift; because the changes do not pertain to tangential matters, but quite the opposite, to a core fact that had not gone unnoticed by the collaborating accused himself, since for months he had ruled out any offer prior to the mentioned contract; and, finally, because [Nombre 064] was a public official prone to receiving irregular economic compensation ("rewards" as he said), originating from natural and legal persons with whom he had ties due to his position, so it cannot be ruled out that things happened in other ways not contemplated in the accusation, e.g., in the terms he narrated for months (in which case the crime of acceptance of a gift for an act already performed would be configured), or in other ways also censured in our legal system (e.g., that he was the one who demanded the payment of the economic compensation, an alternative that also cannot be ruled out considering that [Nombre 064] himself in the trial acknowledged that before the events investigated here and at the insistence of [Nombre 046] and [Nombre 033], he "suggested" to [Nombre 041] and to [Nombre 078] himself "the convenience of paying" [Nombre 046] what they had promised him in the past; see f. 14,940 and 14,941 front, volume XXXI). It is important to emphasize that [Nombre 064] had criminal responsibility for the events investigated and, to that extent, his contributions as a collaborator are conditioned by his interest in satisfying the expectations of the requesting body. His testimony (a term used in an improper sense, since he did not testify under oath) cannot be considered sufficient proof to deem the existence of a prior promise of a gift as proven (an element that is decisive to speak of a crime of aggravated corruption by improper bribery), especially since, contrary to what the appealed judgment indicates, there are no other pieces of evidence to confirm that extreme. It is important to note that for this Chamber, by reason of the principle of freedom of proof contemplated in Article 182 of the Code of Criminal Procedure, there is no impediment to deeming a fact of interest for the resolution of the case proven based solely on the information provided by the collaborating accused when it is sufficient on its own; however, this is not the case here, since, as has been explained, <u>there are weighty questions about the account provided and about its veracity that, despite the efforts made by the requesting body, have not been able to be eliminated</u>. There are a series of pieces of evidence (set forth above) that can certainly be deemed proven without relying on [Nombre 064]'s statement, namely, that between 1999 and 2000, the representatives of [Nombre 091] in the country considered that the company was the object of irregular treatment by ICE; that a strategy was developed to solve that problem, which contemplated approaching persons of importance in different areas; that although the need for ICE to migrate to GSM technology was foreseen and the institution had taken some steps in that direction, by the year 2000 it was not a consolidated decision; that several public officials related to the telecommunications field and with links to [Nombre 091] received, under similar circumstances and through the same channels ([Nombre 058] and [Nombre 114]), sums originating from [Nombre 060]; and, of course, that [Nombre 091] was awarded the contract for the 400,000 lines. Now, from all these pieces of evidence, one can reasonably derive that the public officials received money from the cited company, and one could even suspect that those funds had some relation to the award of the cited contract; however, what is not plausible is to affirm with certainty that those funds, <i><u>all transferred to public officials after the award, were to fulfill a promise that was made to them previously and separately to each one of them, in exchange for supporting the cited company</u></i>, especially considering that, as was demonstrated, [Nombre 091]<u> was favored with the contract not by chance or by irregular acts of the accused, but for meeting all the requirements of the tender specifications, which the competition did not</u> (proven fact No. 41). That is, <u>regarding the existence of a prior promise made to [Nombre 064]</u> (and which the <i>a quo</i> uses to establish that a similar proposal was also made to the other accused who had the status of public officials), <u>the only proof available is the word of that collaborating accused, a person who for months expressly denied such an extreme</u>. It is important to note that in the trial, [Nombre 064] was asked about this and other inconsistencies detected in his version. He, despite acknowledging having said that the offer <u>was made after the award</u>, denied having lied on September 30, 2004, arguing that at that time he had only tried to "cover or self-protect," and that later he was "clarifying" (f. 14,962 and 14,986 front, volume XXXI). He even stated that <i>“… it was obvious that that statement was not going to hold up on its own; that's why <st1:PersonName ProductID="la Fiscalía" w:st="on">the Prosecutor's Office</st1:PersonName> told me it couldn't be like that, to justify it, and that's when I clarified things, I said that the offer wasn't after the award but before.”</i> (F. 14,962 front of the same volume). And so, despite [Nombre 064] insistently denying having falsified the facts, it is indubitable, evident, that one of the two versions he offered does not correspond to reality. Either he lied when stating that there was no prior offer, or he lied when affirming that there was one, it being impossible to establish, based on such a questionable and self-interested testimony, whether a promise of economic compensation was effectively made to him before the contract for the 400,000 lines was finalized, or if such a statement only responds to his interest in satisfying the Public Prosecutor's Office to obtain the procedural benefit promised to him. For the trial court, the verification of [Nombre 064]'s word should be regarding the general facts and not with respect to each of the facts related, since seeking the latter would make the opportunity criterion unproductive. Such a conclusion, in this particular case, is unacceptable, since the statement of the collaborating accused has been inconsistent about a fact that, while specific, is the most important one in his entire version, namely, the existence of a promise of a gift prior to the abbreviated competitive procedure No. 1-2001. Thus, it is not possible to ignore the foregoing and deem the account credible solely because, regarding some general facts, it coincides with other evidentiary elements (e.g., regarding the panorama faced by [Nombre 091] in a market that worked with captive technologies). It must be insisted that while Article 182 C.P.P. contemplates the possibility of proving any circumstance of interest for the case by any permissible means of proof, which would include the statement of the collaborating accused, according to the rules of sound criticism, it is not the same to base a judgment of certainty on an account that has been coherent and consistent as on one that is openly contradictory regarding the core fact charged (the promise of a gift), a contradiction that, moreover, arose upon reaching an agreement with the requesting body, first to apply an abbreviated procedure and then an opportunity criterion. In addition to this, [Nombre 064]'s statement presents other inconsistencies that are impossible to ignore. For example, on September 30, 2004, [Nombre 064] stated that, after the first remittance of money from [Nombre 091], he gave [Nombre 033] in the latter's office and <i><u>in cash</u>,</i> the amount of $370,000. However, it turned out that the amount [Nombre 091] had given him on that occasion was only $225,000. Questioned about this, [Nombre 064] stated that <i>the confusion was involuntary “…due to the tribulations of the events”</i> (f. 14,987 front) and that of those $225,000, what he transferred to [Nombre 033] in his office was the sum of $130,000 in the following manner: <i>“…a certificate for $100,000 and 6 for $5,000…” </i>(f. 14,987 front). The court, in its majority opinion, accepted [Nombre 064]'s excuses, after considering that the documentary proof allowed corroborating that the collaborating accused gave [Nombre 033] the certificates set forth above. However, it is one thing to deem it proven that this transfer of certificates occurred <i>and quite another to deem proven the concept for which this transfer occurred, an extreme that can only be accredited through [Nombre 064]'s word</i> <i>and in that respect, it is essential that his account be credible</i>. We reiterate, regarding the prior promise of a gift and the intervention of [Nombre 033] in accepting that promise, the only proof that exists is [Nombre 064]'s word (who is not a witness, but an accused whose legal situation depends on what is decided in this process), hence any inconsistency noted in it must be assessed with extreme care. In this context, it is striking that this deponent has incurred in “confusions” of no insignificant magnitude, such as the one already noted, since $370,000 dollars <i>in cash</i> proceeds from a criminal act, to […]. Continuing along this line of reasoning, it is striking how [Nombre 064], when questioned by the defendants' defense attorneys on this and other important topics, stated that he did not remember. It is impossible to ignore that he says he does not remember, for example, whether in his statements before the requesting body he had <i>insisted</i> that the “reward” was after the award, or if he had told [Nombre 115] about his agreement with [Nombre 033] or with [Nombre 091] (f. 14,990 front), matters that are elementary and core to his testimony. In addition to this, note that—according to [Nombre 064]—the promise of a gift had to do not only with the migration to GSM technology, or the use of public tenders instead of direct contracts, but with the award of the contract for the 400,000 lines (f. 14,963 front); however, the abbreviated public tender procedure for the lease with option to purchase 400,000 GSM cellular lines was born because it was so ordered by <st1:PersonName ProductID="la Contraloría General" w:st="on">the Office of the Comptroller General</st1:PersonName> of <st1:PersonName ProductID="la República" w:st="on">the Republic</st1:PersonName> <u>some time after, according to [Nombre 064], the promise of economic compensation had been made</u>. Although, as the court indicates, by early December 2000 some proposal had already been developed, which is precisely the one discussed on the 5th (Session No. 5249), the majority opinion chooses to ignore that it mentioned 600,000 lines, 200,000 to expand the current ones—with TDMA technology—<u>and 400,000 in GSM technology to be obtained not by public tender but by direct purchase from 5 suppliers</u> ([Nombre 091], Siemens, Nortel, Ericsson, and Lucent), <u>it being <st1:PersonName ProductID="la Contraloría" w:st="on">the Office of the Comptroller</st1:PersonName> that, after that date (and, consequently, after the promise of a gift was allegedly made to [Nombre 064]), refused to authorize more direct purchases, opening the door to an abbreviated competitive process</u>. To that extent, it is difficult to believe that the promise of compensation that [Nombre 064] placed in early December 2000 contemplated, as he said, a favorable vote in relation to a public tender procedure that at that time did not exist and was not foreseen (again, what had been designed in relation to the 400,000 GSM lines <i>was the direct purchase from several suppliers</i>). In summary, although there are evidentiary elements that allow confirming some extremes of the account given by [Nombre 064] (e.g., that after the award, [Nombre 091] gave him a significant sum of money), on the core matter (that is, having received on December 2, 2000, a promise of economic compensation that he communicated to [Nombre 033] on the 3rd of that same month and year; see proven facts identified with numbers 85 a 92), his account not only lacks support in other evidence, but has also been contradictory, <u>to the point that it is impossible to rule out that things may have happened in another way as well, namely, that it was he —[Name 064]— and other public officials who demanded the delivery of economic retributions from the heads of [Name 091]; that these were given after the contract for the 400,000 lines was awarded without there being a prior promise (a thesis which, it is reiterated, he maintained for several months), or that the promise, if it existed, had a different content than the one [Name 064] mentions</u>. For the undersigned, the statement of [Name 064] is simply implausible and, therefore, it is not sufficient to consider demonstrated the reason why public officials received payments originating from [Name 060]. It is important to emphasize that granting [Name 064] a prosecutorial discretion criterion in no way relates to the credibility that can be given to his testimony. This being the case, it is not understood why the Public Prosecutor's Office, knowing that this defendant, who was prone to receiving economic retributions, provided two different versions regarding a matter as central as the promise of economic reward, chose to apply a prosecutorial discretion criterion in relation to him, setting aside the referred circumstances which, ultimately, as is now the case, make it impossible to deem his words credible. Furthermore, this chamber has also undertaken the task of listening to the audio and video recording of this collaborating defendant's statement at trial, determining that the answers he gave to a significant number of questions posed by the defense attorneys of the other defendants were not spontaneous. Note that in multiple instances, before answering, [Name 064] spoke with his defense attorney, Lic. Edwald Acuña Blanco, a professional who was sitting next to him. This situation was even subject to challenge not only because it was repeated, but because it took place regarding questions whose answers could not generate liability for [Name 064] in relation to criminal acts other than those negotiated under the prosecutorial discretion criterion. However, the trial court refused to correct the situation, arguing that it could not be assured that Lic. Acuña Blanco was advising [Name 064] on what to answer (cf., e.g., the recording corresponding to September 16, 2010, file c0002100916102255.vgz, from 10:42:10 onward). This is a conclusion that this court does not share. [Name 064], as a collaborating defendant, had the right to speak privately with his attorney before testifying, so that he could advise him. He also had the right to testify in his presence (Art. 82 subsection e), 93, and 95 of the Criminal Procedure Code) and, of course, for Lic. Acuña Blanco, if he considered it necessary, to recommend that he remain silent in response to questions whose answers might eventually imply some liability for acts other than those negotiated with the requesting body. What constitutes an abuse of those rights is for any defendant (and more so [Name 064], who would obtain a significant procedural advantage in exchange for his testimony) to limit himself to communicating his advisor's answers, it being naive to believe, as the majority vote does, that the conversations held between the defendant and his attorney after each question and before answering did not have the purpose of guiding his responses, dialogues that also had no reason to occur for questions related to the acts contemplated, at least formally, in the prosecutorial discretion criterion, since it was regarding these that [Name 064] agreed to cooperate. <u>But even hypothetically assuming that a defendant who has decided to testify can do so under such conditions,</u> what cannot be denied is that this conduct contributes to the doubts that arise regarding the truthfulness of his version, since he was not even capable of responding spontaneously to many of the questions that were asked of him. Finally, note that in addition to the statement of [Name 064], the only evidence that in any way relates to the issue of the prior promise is judgment No. 586-07, issued on October 16, 2007, against [Name 068], in which he is convicted of having accepted a promise of a bribe from [Name 105] (evidence No. 747); however, it is a judgment issued years after [Name 064] rectified his statement (and after, based on it, the requesting body adopted a specific theory of the case) within the framework of an abbreviated procedure, where [Name 068]'s acceptance of the charges <i>was of a formal nature</i>, and thus it does not have sufficient weight to make an account as questionable as the one already presented seem plausible. Indeed, if the intent of the requesting body was to support [Name 064]'s testimony with that of [Name 068], or with that of any other defendant who had made an agreement with the requesting body (e.g., [Name 105]), it should have offered their statements to be received at the time of trial and not attempt to assign to a judgment—which even on the point in question (the acceptance of the promise of a bribe) is quite brief—an evidentiary significance that it does not have, since it is not a document containing a statement made with all the formalities required by the legal system to be incorporated by reading at trial and examined in this proceeding, as if it were an advance evidentiary proceeding. Coupled with this, one cannot lose sight of the fact that while [Name 064] speaks of a promise of a bribe that was extended to him starting in December 2000 with three specific objectives (migration to GSM, public bidding instead of direct procurement, and the award of the 400,000 lines), regarding [Name 068] the judgment only alludes to a promise that was articulated <i>when the bidding process was already underway</i>, hence they are not identical situations, where the demonstration of one can lead to the existence of the other. Regarding the statements of [Name 041], acknowledging having made payments to public officials, and that of [Name 001], accepting having received them, it is important to note that neither one nor the other indicated the reason for which the payments were made or received. That is, doubt remains as to whether the sums were to fulfill a promise of a bribe extended before the award (which leads us to doubt whether that promise of a bribe that [Name 064] and the requesting body described in relation to the public officials involved, actually existed), or whether the payments responded to other equally plausible dynamics, which, besides not being included in the accusation, would fit different criminal offenses (e.g., active bribery, accepting bribes for a completed act, or extortion by a public official). It is important to add that the Public Prosecutor's Office, during the oral hearing held before this chamber, submitted a document called <i>“Written record of the oral presentation of the Public Prosecutor's Office/Vista ICE-[Name 091]”</i>, in which it asserts that the trial court, in its majority vote, analyzed a large amount of both documentary and testimonial evidence that allows for the verification of the truthfulness of [Name 064]'s statement in a series of points, which the requesting body set out in 24 points, namely: <i>1)</i> [Name 091] used numerous instruments for shaping public opinion to explain its interest in migrating to new trends. This was the beginning of a public discussion that joined the unmet demand. Additionally, [Name 091] always maintained that it was subject to discriminatory treatment by ICE and questioned the purchases made from other companies; <i>2)</i> by May 2000, the decision to migrate to GSM technology had not been made; <i>3)</i> there is evidence that [Name 041] knew what was going to happen regarding the direct procurement of 160,000 lines from [Name 091], which confirms what [Name 064] stated, in that the former called him and asked him to attend the board of directors session where an agreement on the matter that had been adopted in the previous session was being challenged, which [Name 064] did not attend; <i>4)</i> between [Name 064] and [Name 033] there was a close relationship; <i>5)</i> [Name 064] and [Name 041] were in contact; <i>6)</i> [Name 041] acknowledged to [Name 116] that [Name 058] was a kind of trust. The payer was [Name 058]., not [Name 091] directly, which confirms what [Name 064] stated regarding the query he made to [Name 041] about that corporation; <i>7)</i> regarding the content of the remunerative promise, [Name 064] mentioned that it was in exchange for migrating technology, promoting the bidding process, and voting affirmatively on [Name 091]'s offer. For his part, [Name 128] described how the company contacted [Name 018] to talk about eliminating the direct procurement, also noting that [Name 018] asked him to speak with his superiors. There is also evidence that [Name 018] was sent, through the same channel and at the same time as [Name 064], a sum of money, and there is documentary evidence showing the displeasure of one of the managers of the corrupt plan, which is associated with the three objectives already mentioned; <i>8)</i> regarding the promise [Name 064] describes, there is evidence that money was transferred to this defendant through [Name 058].; <i>9)</i> by the time [Name 064] said the proposal was made to him to favor the migration, it had not yet occurred; <i>10)</i> regarding the seduction process described by [Name 064], there is abundant evidence showing the encounters, invitations, and attentions from [Name 091] toward various public officials; <i>11)</i> [Name 064] placed the offer at the end of the year 2000, and that year proved decisive for [Name 091], as can be deduced from the complaints it filed and other documentary evidence (e.g., sponsored content); <i>12)</i> regarding the meeting between [Name 064] and [Name 033], there is documentary evidence showing how they split the money from [Name 091]; <i>13)</i> according to [Name 064], it was because of the promise made that the money was paid to him. This is confirmed by the fact that both he and other public officials were paid through similar means—through [Name 058].—; <i>14)</i> [Name 064] said that part of the money was for [Name 033]. In this regard, the evidence shows that [Name 064] received an amount similar to the other public officials but doubled, which reveals that payment for two officials and not one was made through him. The transfer of money from [Name 064] to [Name 033] was demonstrated, and it was ruled out that it was a loan, as the latter claimed; <i>15) and 16) </i>there is evidence confirming the relationship of [Name 046] with [Name 091], the transfer of funds from that company to [Name 046], and the transfer of funds from him to [Name 064]. This confirms the collaborator's statement that [Name 046] rewarded him for collecting from [Name 091] what they owed him; <i>17)</i> regarding the deliveries of money from [Name 064] to [Name 033] that the former describes, there is documentary evidence; <i>18)</i> [Name 064] initially said he had transferred funds to the account of [Name 110], then later clarified that this was not the case. This is plausible because [Name 064] provided a document showing the number of said account, and furthermore, the link of that company with [Name 033] was not even known by people close to [Name 033]; <i>19)</i> it was demonstrated that [Name 064] made a first payment to [Name 033] with some BICSA certificates belonging to his mother, since his account was being questioned, just as he pointed out; <i>20)</i> it was established that part of the second payment made by [Name 064] to [Name 033] was used for the benefit of the latter; <i>21), 22 and 23)</i> regarding other payments made by [Name 064] to the then [...], there is documentary and testimonial evidence showing the path followed by the money and how it ended up in the hands of people linked to [Name 033], and furthermore, part of those payments were accepted by [Name 033]; <i>24)</i> [Name 064] said that regarding the last payments [Name 091] made to him, he did not transfer money to [Name 033] as it was difficult because the latter was in Washington and because he thought the split was unfair, which—the prosecutors say—the court used to explain why the transfer of funds was cut short (f. 176.960 a 176.965 vuelto, tomo XLIV). For this chamber, the aforementioned indicia in no way confirm that the promise of a bribe took place in the terms [Name 064] described at trial, and even less do they allow for categorically ruling out other equally plausible alternatives that were not charged. Indeed, no one has cast doubt on the fact that the representatives of [Name 091] were dissatisfied with the treatment they received from ICE (it must be remembered that captive technologies were used in the country and that, therefore, [Name 091] could not compete); that they reported the situation and designed a strategy to correct it, which involved approaching certain public figures, contact that indeed took place and that was demonstrated, nor was it unusual. Likewise, it was proven that some public officials, unfortunately, had the habit of receiving and even requesting favors from companies that had business with ICE, and that this happened prior to the events investigated here. Nor has it been cast into doubt that [Name 064] transferred funds to [Name 033], or to natural or legal persons close to him (in fact, there is abundant documentary evidence showing the above); however, from this it cannot be derived with certainty that these funds were to fulfill a prior promise, accepted before the award, as the Public Prosecutor's Office asserted. This cannot be extracted from the fact that several defendants were given, <i><u>some time after the award</u></i>, similar sums, under similar modal conditions, because, given the same situation, other scenarios are equally plausible. For example, that the monies were accepted by those public officials for acts already performed and not for having committed to performing future acts (which would constitute the offense of accepting bribes for a completed act and rule out bribery); that it was those officials who, abusing their position or functions, forced or induced the promise or the payment of the pecuniary advantage (extortion by a public official), which, it should be added, would not be surprising, since, as we will see further on, there were public officials who requested economic advantages from supplier companies, including [Name 064] himself, who acknowledged having made “collection efforts” before [Name 091] so that it would pay [Name 046]. Nor can it be ruled out that even if a promise existed prior to the abbreviated bidding procedure 1-2001, its content was different. The same can be said regarding the actions of [Name 064] and other directors in relation to the matter, as certainly, no irregularity was demonstrated in the processing of the contract for the 400,000 lines (which, it is reiterated, began some time after the moment when [Name 064] placed the promise of a bribe, and which, moreover, originated because the Comptroller General of the Republic ordered it so, and not ICE). It is insisted, the only deponent who gave an account of the promise of a bribe was [Name 064], and his testimony, for the reasons noted above, besides being illicit, is unreliable. In summary, given that the collaborating defendant's statement is illicit evidence and also implausible, it is appropriate to establish the consequences of its hypothetical exclusion, keeping in mind—of course—that, due to the extended effect contemplated in Article 443 of the Criminal Procedure Code, this exercise must be carried out for all defendants in relation to whom such evidence has been considered, and not only for those who challenged its use by the trial court. For all the foregoing, the second ground of the appeal against the judgment filed by Lic. Federico Morales Herrera and Lic. Erick Ramos Fallas, defense counsel for [Name 041], is granted, as well as the second section point D), and the third section point A), of the appeal against the judgment filed by the defendant [Name 033], personally.

VI.- Consequences of the foregoing ruling. Although the defects described above (the illegality of the prosecutorial discretion criterion granted to [Name 064] and, therefore, of the statement he gave at trial, as well as the violation of the rules of sound criticism in the assessment of that account) are of a formal or procedural nature, this court considers it unnecessary to order a remand, because, an exhaustive investigation having been carried out, no possibility is foreseen that in a potential new trial other elements of evidence additional to the existing ones could be legitimately incorporated, and, therefore, there is also no impediment for the undersigned to proceed to directly resolve what is appropriate in accordance with the provisions of Article 465 of the Criminal Procedure Code, determining, through the analysis of the evidence remaining after hypothetically excluding the referred statement, which facts that the trial court considered proven remain intact. This is a solution that, although it may be atypical for procedural errors, can be adopted in view of the principle of prompt and complete justice, since it makes no sense to prolong the proceedings when there are sufficient reasons to believe that the state of things will not change (in this sense, see resolutions of the Third Chamber numbers 827-F-96, of 12:35 p.m. on December 23, 1996, and 1173-1997 of 9:30 a.m. on October 31, 1997). This being the case, we will proceed below to conduct this study for each of the defendants.

• 1)[Name 001]: The court considered it proven, in fact No. 131, that [Name 001] received from the corruptors a promise of a bribe in exchange for taking the necessary actions within the scope of his functions as advisor to the executive presidency of I.C.E. and person in charge of executing the project for the 400,000 lines, in order to make said procurement effective while favoring [Name 091]. Based on this, it considered him the responsible perpetrator of an aggravated corruption offense for improper bribery. Regarding the offense of improper bribery, it is important to make some remarks. The criminal offense contemplates two actions, namely: i) receiving a bribe or any other undue advantage to perform, in the future, an act proper to one's functions, and ii) accepting the promise of a reward of that nature for the same purpose. As Carlos Creus points out, referring to Argentine legislation which, on this topic, presents some similarities to ours, receives refers to “the person who enters into material possession of the object delivered to them” and accepts refers to “the person who agrees to receive in the future what is promised to them,” it being the case that in both scenarios the same purpose is pursued, specifically, that the public official performs a future act concerning their functions, hence it can be argued that the payment delivered to reward functional conduct already adopted by the official does not fall within the limits of bribery (thus, CREUS, Carlos. Derecho Penal. Parte Especial. Buenos Aires, Editorial Astrea, Tomo II, 1st reprint of the 6th edition, 1998, pp. 272 and 273). In the case of [Name 001], between both typical conducts, the second one has been considered configured, because as indicated above, he accepted a promise of economic reward in exchange for executing—future act—the necessary actions so that [Name 091] would be favored in the project for the 400,000 GSM lines. Clarifying the foregoing is fundamental, since as has been considered proven, [Name 001] received the funds coming from [Name 060] after the award of the contract. If the award had already occurred, it is not plausible to argue that [Name 001] received a bribe in exchange for favoring [Name 091]—future action—in that award and, therefore, the other scenario contemplated in the criminal offense is completely excluded (namely, receiving the reward in exchange for committing to perform a future act, proper to one's functions). Having thus ruled out the hypothesis of receiving the bribe, we focus on the one that was charged and considered proven, namely, that this defendant accepted a promise of a bribe prior to that award to favor [Name 091] therein. In this case, the conviction requires the verification of a series of elements of the criminal offense that are central, namely, the promise of a bribe, its content—the act proper to the functions in exchange for which the promise is made—and its acceptance. As explained in the judgment, from folios 15.894 a 15.980 frente del tomo XXXIII, as well as in its general sections, referring to the general framework surrounding the procurement of the 400,000 GSM cellular lines (f. 15.512 frente and following), what was presented regarding the alleged corruptors, their identification, the criminal planning, the signing of the consultancy contracts by [Name 058]. and [Name 114]. and the channeling of money for the payment of bribes and their distribution (f. 15.572 frente and following), in order to consider the promise made to [Name 001] (and accepted by him) to be proven, the following was considered: i) [Name 001] began working at ICE at the end of the year 2000—which even the defense accepted in closing arguments, f. 15.895, tomo XXXIII—, with the employment relationship being formalized in January 2001. [Name 001] was in charge of abbreviated procedure 1-2001, corresponding to the 400,000 cellular lines. He was the project coordinator and the one who had a relationship with the supplying company; ii) [Name 001] admitted before the media having received money from [Name 091]; iii) In the evidence, three notes prepared on paper with [Name 058].'s letterhead appear. In the first, dated November 22, 2000, sent by [Name 098] to [Name 041]—which the trial court understands are [Name 041] and [Name 098]—, it is asserted that efforts are being made so that [Name 001], recently appointed by [Name 095], becomes [Name 091]'s interlocutor in the negotiations regarding the new expansions, since he is a person with whom progress can be made because he is more political and due to his recent appointment, he is not contaminated by the influences affecting the traditional administration. In the second, dated November 23, 2000, and which is a continuation of the previous one, it is asserted that they managed to get [Name 001] to lead the negotiation from now on and that, consequently, a more flexible position can be expected from the ICE negotiating group. Finally, in the note of November 29, 2000, reference is made to the eventual refusal of the Comptroller's Office to accept [Name 095]'s proposal to contract with all suppliers, which according to the note, was [Name 095]'s idea to avoid objections, but which in any case, also allowed for keeping at bay the intention to expand the then-current system and accelerate the publication of the new bidding process for GSM and thus keep [Name 091]'s competitive capacity alive (all these notes, as this sentence appeals court verified, are visible in evidence No. 686, called “Main case file for Case Number 04-7810-0647-PE,” folios 295, 298 and 299 frente); iv) [Name 041] invited [Name 001] to lunch on November 29, 2000; v) in internal note PE-0102-P of February 22, 2002, sent by the executive presidency of ICE to the different strategic business units, it is informed that for the abbreviated procurement process for the 400,000 lines, a commission coordinated by [Name 001] was appointed, which would be in charge of the study and award of the project (study of offers, answering clarifications, evaluation in all aspects, award recommendation, consultation and resolution of possible appeals, etcetera, work that would conclude when the contract was endorsed), a commission that would report to a high-level body composed of [Name 095], [Name 122], and [Name 068]. These are communications that, despite being for internal ICE use, were sent to [Name 041], who kept abreast of what was happening at ICE with the 400,000-line project, especially the functions assigned to [Name 001], with which he was highly pleased. According to the court, the appointment of [Name 001] was also part of the plan devised by [Name 041] (f. 15.902 frente); vi) even though, indeed, [Name 001] did not have the final say on the project, as did the members of the board of directors (e.g., [Name 022], [Name 064] and [Name 068]; the second having accepted having received bribes from [Name 091] and the last having been convicted for acts of a similar nature), for this company it was essential to count on the project coordinator, thus ensuring that he acted in their favor. We are talking about the person who had access to any information and whose opinion also carried great weight before officials such as [Name 095], [Name 122], and [Name 068], who ultimately made the decision and brought it before the board of directors. It is important to remember, the ruling indicates, that [Name 068], like [Name 105], was convicted for committing crimes related to the offering and receiving of bribes originating from [Name 091]; vii) for the court, even before his appointment as an assistant in the executive presidency of ICE and later as coordinator of the 400,000-line project, [Name 041] and [Name 028] knew [Name 001] as a more political person, with whom progress could be made, hence he was the right person for the proposed plan.

Therefore, once he assumed the role of coordinator, in accordance with his duties, [Name 041] and [Name 078] promised him the payment of a bribe in exchange for him taking the necessary actions within the scope of his duties to make the contract effective, favoring the interests of [Name 091]; <b><i>viii)</i></b> the court weighed that the appointment of [Name 001] took place in November 2000, when the concern about migrating to GSM technology was already within the board of directors, which, coupled with the conflicts that arose between [Name 091] and ICE that were extensively explained in the judgment, made it necessary to have supporters of [Name 091]'s cause, a purpose achieved by promising bribes to [Name 022], [Name 064], [Name 068], and [Name 001] himself. The <i>a quo</i> court also revisited the topic of [Name 124]'s so-called "action proposal," in the sense that approaches between the company and people from different spheres and factions—business, religious, and political—were advisable, a suggestion that [Name 041], as [Name 091]'s representative in Costa Rica, took to carry out a plan that included an approach to [Name 001] and other defendants in this proceeding; <b><i>ix)</i></b> finally, the existence of abundant evidence was weighed that allows it to be demonstrated with certainty that [Name 001] received and disposed of the bribes originating from [Name 060]. In addition to the above, when examining [Name 022]'s situation, the trial court cited other circumstantial evidence that, in its understanding, also implicates [Name 001], namely: <b><i>x)</i></b> an official communication from [Name 126], dated February 17, 2005, which records that [Name 091] began relations with this company in January 2000 and that, according to its records, [Name 105], [Name 064], [Name 001], and [Name 022] used its services, which allows the conclusion that three of the people favored with the trips were ICE officials, trips that occur after the endorsement of the contract for the 400,000 lines and are therefore not unrelated to this matter (f. 15,845 and 15,846 front, volume XXXII); <b><i>xi)</i></b> the promise of a bribe is also proven through the statements of [Name 064]. This, the trial court says, is credible, because despite some differences with his previous accounts, on the relevant points he has remained the same. According to [Name 064], [Name 041] and [Name 078] offered him a reward if he helped in three areas, namely, migration to GSM, use of a bid or public tender, and a favorable vote for [Name 091]. The court says that if this was a constant practice, it is not strange that they approached other officials such as [Name 022] or [Name 001] (f. 15,862 to 15,864 front, volume XXXII). <b><u>Exercise of hypothetical mental suppression of [Name 064]'s statement</u></b> <b><u>and examination of the remaining circumstantial evidence in accordance with the rules of sound criticism</u>:</b> As Attorney Greysa Barrientos Núñez pointed out in the oral hearing held on this matter, there is no doubt that [Name 091]'s representatives believed that the company was being excluded from the mobile telephone market and that they designed a plan to achieve a position in that field. As is correctly explained in the judgment, ICE took its first steps with TDMA technology, which is a captive technology, since network expansions could only be made with equipment produced by the same companies that offered that technology and which, in the case of our country, were Lucent Tecnologías de Costa Rica S.A. and Ericsson, companies that were contracted by ICE under the modality of direct purchases, which prevented other companies from having access to that market, e.g., [Name 091], a company that supplied ICE with fixed telephone equipment, it being the case that [Name 091] also offered GSM technology equipment (cf. folios 15,540 and 15,541 front, volume XXXII). Based on the testimony of several deponents (e.g., [Name 095], [Name 128], [Name 132], among others), the appealed decision concluded that by the years 1999 and 2000, GSM technology was positioning itself in the world; that in 1999 there was a "tense" relationship between [Name 091] and ICE; and that during the year 2000, [Name 091] fought to be another competitor in the mobile telephone market. This company, in addition to explaining to ICE's board of directors the benefits of migrating to GSM technology (apparently with little success, because even though those benefits were admitted, direct contracting continued, some of which [Name 091] also questioned, e.g., the direct contracting of 100,000 lines in the year 2000, f. 15,563, volume XXXII), designed an entire strategy that involved making the issue a matter of public domain and national interest, which is why it contacted people from different spheres, e.g., legislators, opinion leaders, politicians, media outlets, and public oversight bodies (e.g., the Contraloría General de la República), among others, in order to denounce what they considered practices devoid of transparency, and as a result of these actions, the majority vote indicates, [Name 095], on October 6, 2000, publicly announced the migration to GSM technology, which in any case occurred a few months later (cf. 15,540 to 15,572 front, volume XXXII). In the same manner, there is no doubt that several public officials received sums of money from the cited company, under similar circumstances of manner and time. This, however, is not enough to consider it demonstrated, as the appealed majority vote did, <i><u>with a degree of certainty and not probability</u></i>, that the payments made some time after the award <u>were the product of a promise of compensation formulated previously and accepted by [Name 001], in exchange for him executing acts proper to his office to favor [Name 091] with the contract for the 400,000 lines</u>. According to the appealed judgment, the appointment of [Name 001] was part of the corrupting plan. However, upon examining the matter, it is easily established that this conclusion is not derived from the evidence and therefore violates the rules of sound criticism. [Name 001]'s appointment was made by [Name 095], a person who was never involved in the criminal scheme. Furthermore, as [Name 095] explained, what he intended with that appointment was to have a person more willing to dialogue, who would allow peace to be restored after the events that occurred with the so-called "combo eléctrico." Thus, [Name 095] stated: <i>"I directly appointed [Name 001] myself; he arrived at the institution as a specialist in conflict resolution and helped greatly in the process of recovering labor peace following the events that occurred with the 'combo eléctrico.' [Name 001] arrived very close to my arrival at ICE; part of the problem the institution had at that time was satisfying the electrical and telecommunications service. I met [Name 001] at the Universidad Nacional, in the School of Planning; he introduced himself to me, described his characteristics and skills, and I believed he could help us recover social peace in the institution. I did not ask for references for him; the interview was enough for me. It seemed to me that he had great capacity in conflict resolution and listening to positions and solving conflicts, and he demonstrated it. I was looking to rescue labor peace in the institution, and that is why [Name 001] seemed good to me. I did not know if he had knowledge of telecommunications; he was an advisor to the Executive Presidency, he coordinated meetings with the different union groups, and perceived the concerns of those groups."</i> (F. 14,712 front, volume XXX). The same court recognized that it was [Name 095] who brought [Name 001] to work at the institution starting in the last months of 2000, with his appointment as Executive Assistant in the Executive Presidency being formalized in January 2001 (f. 15,894 to 15,896, volume XXXIII). For all the foregoing, the majority vote errs in pointing out that even before his appointment and later as coordinator of the project for the 400,000 lines, [Name 041] and [Name 028] knew [Name 001] as a more political person and therefore, <i>suitable for the proposed plan</i>, to the point of even asserting that this public official's appointment was part of the strategy followed by the corruptors. Furthermore, although—indeed—[Name 001] was the person in charge of expedited proceeding 1-2001 corresponding to the 400,000 cellular lines, it is important to point out that this originated in 2001, not because of ICE's interest or that of its leaders, but because the Contraloría General de la República proposed it that way, and furthermore, that circumstance does not demonstrate that a promise of financial compensation was made to him at the end of 2000 or the beginning of 2001, as the trial court assured. This is also not inferred from the lunch that [Name 041] had with [Name 001] on November 29, 2000, or from the contacts that existed between the cited public official and the employees of [Name 091], since, as the same court accepted and was demonstrated with abundant evidence—which even documents the abuses by public officials who requested perks from supplier companies for some time (e.g., the case of [Name 022])—these types of meetings were frequent (f. 16,112 front, volume XXXIII). Still along these lines, it is also clear that [Name 001] admitted on a national television channel to having received money from [Name 091]; however, he never explained for what reason. Thus, the only thing that can be derived from the cited evidence is the acceptance of the money, which, it is not omitted to state, was also proven through abundant documentary evidence; however, it is not circumstantial evidence from which it can be derived, as a certain fact, that a promise of compensation prior to the award was made to [Name 001]. The same can be pointed out regarding the notes examined in the judgment and mentioned above. From the first of them, dated November 22, 2000, what can be inferred is that the appointment of [Name 001] was the responsibility of [Name 095], with which, it is reiterated, it could not be affirmed that the cited appointment was also part of the criminal plan. Moreover, what that note states is that the appointment sought to accelerate things in ICE's expansion plans, both in fixed and cellular telephony, and that negotiations were underway for [Name 001] to be [Name 091]'s interlocutor in the negotiations on new expansions, since being a "more political" person and due to his recent appointment, he would not be tainted by "the influences that affect the traditional administration," hence it would be possible to make more progress. As can be observed, this is a note that only alludes to [Name 001]'s characteristics as a negotiator, even favorable to the defendant's interests insofar as he is considered free of influences, and from which it furthermore cannot be inferred, not even remotely, that there was a promise of financial compensation, or that he is at least a public official who was willing to provide collaboration to the company with the contract mentioned so many times, especially considering that the analyzed evidence mentions both fixed and cellular telephony. As if the foregoing were not enough, it must be taken into account that as of November 22, 2000, the contract for the 400,000 lines had not come into legal existence and that, therefore, [Name 001] had not been appointed as the person in charge of executing the project. The same applies regarding the note dated November 23, 2000, in which it is simply stated that [Name 001] will be the one to lead the negotiation with [Name 091] and there is talk of direct contracting with that company, aspects that do not contribute to demonstrating the prior promise in relation to the contract for the 400,000 lines, or to demonstrating the content of that promise. Finally, regarding the note of November 29, 2000, we are talking about a missive in which "[Name 098]" (we understand, [Name 098]), communicates to "[Name 041]" ([Name 041]) the following: 1.- that the idea of including all suppliers has been successfully introduced and that "[Name 095]" (this Chamber understands, [Name 095]) believes he can convince the Contraloría to approve a scheme that allows contracting with everyone, thus avoiding objections; 2.- that although he ([Name 098]) thinks this will not be possible, he recognizes that this manages to keep the claim to expand the current system at bay, accelerate the publication of the new tender for GSM technology, and maintain [Name 091]'s fighting capacity; 3.- that [Name 001] commented to him that the Swedes (understood to be Ericsson) are very hurt at having lost control of things and are not willing to cede supremacy in the metropolitan area to [Name 091]; 4.- that [Name 091] must not cede anything of what has been achieved, that Siemens and Nortel are entering the scheme thanks to [Name 091]'s effort, and that ICE knows that without this company's consent, it will not be able to advance. This is a note that also does not allow one to glimpse the formulation of a promise to [Name 001] in exchange for taking the necessary actions within the scope of his duties to make the contracting of the 400,000 lines effective, favoring [Name 091]. At most, it confirms that [Name 001] had spoken with [Name 098] by November 2000, a date on which—it is reiterated—neither had the contract for the 400,000 lines come into legal existence, nor had the defendant been designated as the person in charge of its execution. The <i>a quo</i> court says in its majority vote that another piece of circumstantial evidence against [Name 001] is that the same promise was made to other public officials and that they accepted money from [Name 091]. Regarding this, note that although—indeed—there is evidence that categorically allows establishing that [Name 001], like other defendants, received money originating from that company, there is none to consider it accredited, at least not with a degree of certainty, that there was a promise of a bribe prior to the award, to the point that it is not plausible to rule out other hypotheses, for example, that without a prior promise existing, [Name 001] accepted the financial compensation for a completed act, or that it was he who induced [Name 091]'s representatives to give or promise him financial compensation. <u>For the undersigned, only by considering [Name 064]'s statement, who was explicit on the matter, was it possible to maintain that other public officials received promises of bribes and, to that extent, make the <i>a quo</i>'s conclusion reasonable, in the sense that [Name 001] also received it</u>. Suppressing this statement, what remains regarding the point is a judgment handed down against [Name 068]; however, a judgment of certainty that [Name 001] received the cited promise cannot be derived from this either, since the referred resolution was handed down in the context of an expedited proceeding, where the defendant—[Name 068]—limited himself to accepting the attributed facts and the agreed penalty (cf. evidence No. 747, file called Certified Copy of Judgment No. 586-07 File 06-000045-621-PE Crime of aggravated corruption, against [Name 068]). Although indeed, in that judgment it is considered proven that [Name 105], with the collaboration of [Name 046], offered [Name 068] a promise of a bribe in exchange for voting in favor of the company [Name 091] in the tender for the 400,000 lines, a promise that [Name 068] accepted, this does not allow it to be considered proven that the same promise was made to [Name 001], since the acceptance that [Name 068] made of those facts is personal in nature and, moreover, formal, as it is a requirement for the expedited proceeding to be applicable, whereby its evidentiary significance, at least for what this proceeding is concerned, is quite limited, arguments that are precisely the same ones that must be made regarding condemnatory judgment No. 260-09, handed down against [Name 105] for the crime of penalty of the corruptor, judgments that the same appealed decision recognizes have only been considered <i>“…in relation to those who submitted to such proceedings and solely with the type of crime for which they were convicted, the penalty, parties, and eventual reparations or other merely referential data, <u>without in any case evaluating the proven facts and other content</u>.”</i> (F. 15,767 and 15,768 front, volume XXXII). Furthermore, as is stated in the cited resolution, [Name 068] received an offer from [Name 105] and from [Name 046] himself, while in the case of the other defendants, among whom is [Name 001], the formulation of the promises is attributed to other individuals, specifically, to [Name 078] or to [Name 041], thus it also cannot be affirmed that they are identical situations, for the purpose of assigning that judgment a value it does not have. Regarding the so-called route of action prepared by [Name 124], the first thing to indicate is that <i>this document does not contemplate the commission of criminal acts</i>, but only the need for [Name 091] to gather support in different spheres of national life (business sector, Catholic Church, political parties, etc.). Moreover, it cannot reasonably be derived from it that [Name 041] and [Name 078] made a promise of a bribe to [Name 001]. As has been indicated, there is no doubt that [Name 001] illegitimately increased his assets and that he made a series of transactions aimed at distancing the received funds both from their origin and from his person (which is one more element to confirm that he knew the irregular nature of those funds); however, to declare him the responsible perpetrator of the crime of improper bribery in its modality of aggravated corruption, it is not enough to consider the above proven; it is not even enough to consider it proven that the money he received from [Name 091] had some relationship with the matter of the 400,000 lines, but rather <u>it was essential to prove that [Name 001], prior to the award, accepted a promise of financial compensation in exchange for him taking the necessary actions within the scope of his duties to make the contract for the 400,000 lines effective, favoring [Name 091]</u> <u>, which logically also implies reliably ruling out other equally admissible hypotheses</u>, for example, that without the cited promise mediating, he accepted the sums that were transferred to him for acts completed in his capacity as a public official, or that it was he who induced [Name 041] to give or promise him the cited financial compensation, which, besides not having been ruled out, was also not charged. Continuing this analysis, the court indicates that evidence No. 75, folios 324 and 325, note PE-0102-P of February 22, 2002, is important because despite being for ICE's internal use, it was sent to [Name 041] and to the company [Name 091] in France, which corroborates that the former was aware of what was happening regarding the project for the 400,000 GSM technology lines and of the functions that had been assigned to [Name 001] as project coordinator. It is even affirmed, based on that evidence, that the appointment of [Name 001] to that position was part of the plan devised by [Name 041]. The errors in this reasoning are obvious. As already indicated, the appointment of [Name 001] was not the responsibility of [Name 078], [Name 041], or [Name 028]. Furthermore, it is unknown who sent that internal note to [Name 041] and [Name 137]. Finally, but no less importantly, it must be stressed that the evidence in question also adds nothing to the issue of the prior promise, since in it <u>only the members of the commission that would be in charge of the project for the 400,000 lines and those of the high-level commission on which that working group would directly depend, are mentioned—the high-level one comprised of [Name 095], [Name 122], and [Name 068]</u>. That is, as is established without any effort and as the same <i>a quo</i> court recognizes in the contested judgment, [Name 001] did not have the final say on the project, since there was another working group controlling the matter—the so-called high-level commission—and, of course, the institution's own board of directors, making it speculation by the trial court to conclude that, despite this, the corruptors practically "appointed" [Name 001] as part of the criminal plan and that he was essential since, in addition to access to information, he had "weight" before officials such as [Name 095], [Name 122], and [Name 068]. Similarly, what the <i>a quo</i> court points out in proven fact No. 132 is completely unfounded, namely, that [Name 001] fulfilled the agreed actions <i>and that once "he achieved," together with other ICE officials, the opening of the tender for the purchase of cellular telephony and the award of the contract for the 400,000 GSM lines in favor of [Name 091], he received the promised bribe</i>, the foregoing because [Name 001] was a middle manager, who lacked the power to decide on the aforementioned matter; because the contract for the 400,000 lines (expedited tender proceeding 1-2001) arose within the Contraloría General de la República and not within ICE, which until then had opted for direct contracting, and, finally, because [Name 091] was favored with the contract legitimately, after meeting all the requirements and having been recommended in the respective studies, and not because of the particular actions of [Name 001] (who, it is reiterated, did not have the power to open the tender or award the contract), or any other defendant. In fact, the same judgment states that: <i>"In the minutes of the session of ICE's Board of Directors No. 5326 of August 28, 2001, from folios 4191 to 4215 (evidence No. 2), it is recorded that the date to receive offers in relation to Expedited Proceeding 01-2001 for the acquisition of 400,000 wireless telephone solutions in the 1800 Mhz band with GSM technology, was set for July 20, 2001, and that only two bidders submitted: Consorcio Ericsson II and a joint offer between [Name 060] and Banco Centroamericano de Integración Económica (BCIE). <u>It is equally evident from the cited minutes that the offer made by Consorcio Ericsson II presented technical defects, which is why it was disqualified, while the offer jointly submitted by [Name 060] and BCIE met all the requirements of the tender specifications, which is why it was unanimously agreed to award Expedited Tender Proceeding 01-2001 for the lease with option to purchase of the necessary equipment for ICE to provide 400,000 comprehensive wireless telephone solutions with GSM technology in the 1800 Mhz band, plus the associated services and components, to the joint offer made by [Name 060] and BCIE</u>. Regarding the point of the referenced award, witnesses [Name 095]</i> <i>, Executive President of ICE, [Name 287]</i> <i>and [Name 195], President and Directors of ICE at that same time, testified coincidentally that <u>the awardee of the tender for the 400,000 lines was the company [Name 091]</u></i> <i><u>, which was decided unanimously, relying on the result of a study analysis by several interdisciplinary sectors of the institution, all of which recommended the award to the cited company</u>. Upon showing witness [Name 095] the minutes of ICE's Board of Directors Session No. 5326, folios 3533 to 3557 of Volume IX (evidence No. 3), he said he recognized that document and that the Board's decision was unanimous to grant that tender to [Name 091]</i> <i>. Finally, he declared that with the award of those 400,000 lines, the demand for mobile lines was largely resolved, that he does not know if they generated a surplus for ICE but that the negotiation was positive and justified the need to migrate to GSM technology in the need to provide new and better services to the user with new technologies, a point on which former directors [Name 287] and [Name 195] also agreed. <u>The company Ericsson, not satisfied with the award of the tender for the 400,000 lines and the disqualification it had been subjected to, proceeded to file an appeal</u> against the decision of ICE's Board of Directors, which it filed before the Contraloría General de la República on September 14, 2001, according to the receipt stamp of the appeal, which is recorded in field 5C of evidence No. 640, folios 2357 to 2297. <u>The cited appeal was declared without merit by the Contraloría General de la República</u> on December 17, 1991, according to resolution R.C.N. 796-2001, visible at folios 3303 to 3219 of field 7C of documentary evidence No. 640. Evidence No. 640 contains a certified copy of the complete administrative file of Expedited Tender Proceeding No. 01-2001…” </i>(The transcription is literal, f. 15,570 and 15,571 front, volume XXXII, the underlining is not from the original). In summary, the licit evidence analyzed in its entirety is insufficient to consider the crime of aggravated corruption in its modality of improper bribery as established. Without [Name 064]'s statement as a guiding thread, <i>all that remains is a series of amphibological pieces of circumstantial evidence regarding the promise of financial compensation that, according to the accusation, [Name 041] made</i> <i>to [Name 001] in relation to the project for the 400,000 lines</i>. This conclusion does not change if the condemnatory judgments handed down against [Name 068] and [Name 105] are considered, as already explained, since in these the only thing observed is a personal and formal acceptance of charges, which in no way is sufficient to ground the cited judgment of certainty.

Even though, from the position that [Name 001] held at ICE, we can extract *with a high degree of probability* that the economic compensation he received had some relation to the matter of the 400,000 lines, without the testimony of the cooperating accused, it is not possible to ensure *with certainty* that there was a prior promise and, even less so, that the delivery of the gift was conditional upon the effective award of the offer that [Name 091] would present to ICE, as the *a quo* asserts in demonstrated fact number 131 (f. 15,455 front). Without that statement, it is worth insisting, other factual hypotheses that were not the subject of the accusation cannot be ruled out either, e.g., that the economic compensation admitted by [Name 001] was granted to him without a prior promise, for an act performed in his capacity as a public official (as [Name 064] had originally stated), or even that it was [Name 001] who compelled or induced the representatives of [Name 091] to give or promise him a specific pecuniary benefit, or that, if a prior promise existed, it had a different content. Continuing along this line of thought, it is important to note that, although [Name 041] admitted before [Name 116] to having paid public officials, among them [Name 001], he never admitted to having made a prior promise in exchange for [Name 091] obtaining the contract for the 400,000 lines. Quite the contrary, what [Name 116] describes is that, according to a draft statement sent by [Name 041], he indicated that it was [Name 064] and other public officials who requested the rewards for having helped in the opening of public tenders instead of direct contracts (f. 15,157 front, volume XXXI). Although it is true that, according to the same witness, in the meeting held, [Name 041] did not refer to this circumstance (cf. same folio), what is indicated in the aforementioned draft (which is introduced into the debate through the testimony of [Name 116]) contributes to the doubts that the undersigned have as to whether the promise of a gift prior to the award actually took place. Regarding the communication from [Name 126], in which it is indicated that that agency billed, on behalf of [Name 091], on April 24, 2002, and in the name of [Name 001], the amount corresponding to "Visa to Cuba and cancellation of reservation" (cf. f. 1771, volume V, which we have examined), note that, contrary to what the court indicates, it does not follow from it that the promise of a gift existed. As occurs with the monies that [Name 001] received, the economic advantage provided through Sertur was admitted after the award of the 400,000 lines and, although it can be presumed that it relates to that matter, it cannot be ruled out that it was received as compensation for an act performed without a prior promise, or that it was requested by the public official himself. Finally, it is important to add that although, when examining the particular case of [Name 001], the trial court did not make a lengthy mention of [Name 064]'s statement, from a comprehensive reading of the judgment and what was said regarding [Name 022], it can be extracted that *that statement played a core role in both cases*, to the extreme that, despite [Name 064] stating that he did not know whether other public officials had received similar promises, the *a quo* used that evidence to conclude that this is what happened, a conclusion that this chamber cannot endorse at this procedural stage, since, as has been indicated, the cooperating accused's account, besides being illegal, is implausible. *Thus, with the situation being as described and having ruled out, because it is impossible to prove, that a promise of a gift was extended to [Name 001], what must be analyzed is whether it is possible to consider another crime as established, specifically, that of illicit enrichment*. In the first place, what must be pointed out is that it is a residual crime compared to other more complex ones, hence there is no impediment so that, if these cannot be proven (e.g., improper or proper bribery, the acceptance of gifts for an act performed, extortion, etc.), the basic offense is applied, provided that its elements were included in the accusation formulated by the requesting body and were considered proven in the judgment. The answer to said question is negative. The criminal offense of illicit enrichment established in section 346, subsection 3) of the Penal Code in force at the date of the facts, stated: *“Shall be punished with imprisonment from six months to two years, the public official who, without incurring a more severely punished crime: (…) 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of the position; (…).”* As can be extracted from the foregoing, the action described in subsection 3) contains two alternative conducts, namely, the *acceptance* of a gift *offered* and the *acceptance* of a gift *presented*. In the first scenario, *the admission, which alludes to the material receipt of the economic advantage*, occurs, like the presentation, while the active subject remains in the exercise of the position. In the second, the admission or acceptance refers to the offer, where those actions—the offering of the gift and its acceptance—are what must occur during the exercise of the position. Since the crime is consummated upon the admission of the offer, the material receipt of the gift, if it occurs, will constitute a subsequent unpunishable act, it therefore being irrelevant whether it takes place while the public official exercises the position that motivated the economic compensation, or if, by then, he had left it. Having clarified the foregoing, note that from the list of demonstrated facts that remains *after hypothetically suppressing the offer of an economic compensation prior to the award of the contract for the 400,000 lines*, the only thing left is that [Name 001] *admitted* the gifts that were *delivered to him in consideration of his office*. We speak of a behavior that, at most, conforms to the first scenario of illicit enrichment described above, that is, the *admission* of the gift *presented*. However, neither in the accusation formulated by the requesting body, nor in the judgment, was it clarified whether that admission took place *while the accused held the position*, an element that also forms part of the offense description and that in this particular case is of utmost importance, since he would have admitted some economic compensations when he had left public service (namely, the one received on May 7, 2004, for twenty-four thousand dollars—proven fact No. 167—and the one received on July 29, 2004, for twenty-five thousand dollars—proven fact No. 170—). It is important to add that although, when examining this accused's situation, the trial court indicated that he left the position on March 10, 2004 (f. 15,895 front, volume XXXIII), since this is not a point contained in the accusation formulated by the Public Ministry, it could not be incorporated into the demonstrated facts without violating the principle of correlation between accusation and judgment. But even if it is hypothetically assumed that said information was indeed available, specifying which amounts he received while he was executive assistant to the executive presidency of ICE and which he did not (and the hypothetical nature of the situation is underscored), *the criminal action, in the case of the crime of illicit enrichment, would be barred by the statute of limitations.* The crime in question is punishable by a prison sentence of 6 months to 2 years, meaning its statute of limitations period, according to Article 31, subsection a) of the Code of Criminal Procedure, is 3 years and was reduced to 18 months with the first formal accusation (Article 33, subsection a) of the same normative body), a procedural act that occurred on October 8, 2004 (f. 316 a to 324 front, volume I). That is, the 18-month period expired on April 8, 2006, given that by then *no procedural act that had, by legal provision, the virtue of interrupting or suspending its count had occurred*. Furthermore, the resolution that declared this case to be of complex processing became final on June 26, 2006, *a date by which the criminal action was already barred by the statute of limitations*. It is important to add that although **the Third Chamber**, in resolution No. 1847-2014, indicated that in accordance with Article 376 of the Code of Criminal Procedure, *the finality of the resolution declaring the matter to be of complex processing modifies* the reducing condition of the prescriptive time limits, to the extreme of eliminating the reduction by half of the statute of limitations period that is underway, it also added that *“…* *the only exception to that reasoning would have arisen in the scenario where the fatal prescriptive time limit had expired before that ruling*, *since in that scenario, the extinction of the criminal action due to the statute of limitations would have occurred, as that circumstance turns into a consolidated legal situation, to which the effects of Article 376 cited above could not have been applied…”* (Cf. Considerando IV.-, resolution No. 1847-2014, the underlining is not from the original). This is precisely what happens here, since we would have that on the date the resolution declaring the process to be of complex processing became final (namely, June 23, 2006), the action to criminally pursue the crime of illicit enrichment *would have already been barred by the statute of limitations* and, to that extent, there was a consolidated legal situation not modifiable by the application of the aforementioned section 376. Finally, this conclusion does not vary one iota if Article 62 of Law No. 8422, Law against corruption and illicit enrichment in public service, published in La Gaceta No. 212 of October 29, 2004, is considered. The cited article establishes: *“* *Statute of limitations for criminal liability*. *The criminal action regarding crimes against the duties of public service and those established in this Law shall prescribe in the manner established by applicable legislation; however, the following rules shall govern:* *a) Once the statute of limitations has been interrupted, the time limits established 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 established 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 that are related to the corresponding crime, whether the ruling occurs in judicial or administrative channels.”* (The emphasis is not from the original). From this norm, especially from subsection a), it can be extracted that, in the case of crimes against the duties of public service and those established in Law No. 8422, upon the occurrence of any of the acts indicated by the Code of Criminal Procedure as interrupters of the computation of the statute of limitations period, the count begins to run anew in full (that is, without a reducing effect), which constitutes an exception to Article 33 of the aforementioned Code. *It is an article that is applicable* *to the procedural acts carried out as of its entry into force*, thus ruling out its retroactive application to prior acts. And precisely, said norm would be given retroactive application if, for example, it were sustained that Article 62, subsection a) [which—it is reiterated—entered into force on October 29, 2004] suppressed the reduction of the statute of limitations period by half that operated with the interrupting act carried out days before, namely, on October 8, 2004, when [Name 001] appeared to render his investigatory statement. It is important to clarify that the cited position is endorsed by the Third Chamber itself in resolution No. 1847-2014 cited above, insofar as it concluded that, since it is not in accordance with the Political Constitution to give retroactive effects to procedural norms, only with respect to the accused who were investigated after the entry into force of Law No. 8422 was Article 62 of said law applicable to them, according to which the statute of limitations period, after an interrupting act, had to be computed in full and not reduced by half (f. 176,429 to 176,431, volume XLIII). This situation only arises in the cases of [Name 018] and [Name 006], so that only with respect to them was one more reason pointed out, in addition to those already given by that court, to sustain that the criminal action was not barred. In the same sense as already set forth, the Criminal Cassation Court of San José has ruled, for example, in judgment No. 132-2006, of 10:30 hours on February 23, 2006, which, in what is relevant, indicates: *“Already the jurisprudence of this Court (thus votes No. 391-1999, No. 372-2001, and No. 1058-2001), as well as that of the Constitutional Chamber (see votes No. 5821-1998 or No. 4397-1999) and the Third Chamber of the Court (cf. votes No. 891-1999, No. 368-2000, No. 383-2002, No. 1017-2002, No. 1019-2002, and No. 35-2003), has indicated that the rules of the statute of limitations, as norms of an instrumental nature, are valid only towards the future and never towards the past. It is therefore not possible to apply procedural law retroactively, given that such a possibility is provided only for substantive norms and always provided they are more beneficial to the accused. Under such consideration, the rules on the statute of limitations shall be effective as of their validity for the facts or procedural acts that it provides for, but never for those already produced, since its effects cannot be retroacted to them. Thus, *although Article 62 of the “Law against corruption and illicit enrichment in public service” (Law No. 8422) establishes that, henceforth, the reduction established in Article 33 of the Code of Criminal Procedure shall not be applied once the statute of limitations period has been interrupted when any of the grounds that so allow it occur, starting again the entirety of the period of Article 31 of that same legal body, such norm may not be applied to the cases or instances in which, prior to its entry into force, which occurred on October 29, 2004, the statute of limitations period had already been reduced by half precisely as a consequence of any of the interrupting grounds established, as was established by procedural law at that time. Such norm is effective only as of its entry into force for cases in which any of the interrupting acts that procedural law establishes occur and provided that the period had not already been previously reduced as was established, since 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 period 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 ground with a reducing effect occurred*. *This means that when the “* ***law of illicit enrichment*** *” is promulgated (October 29, 2004), in this process the statute of limitations period had already been interrupted and reduced by half, this in accordance with the norm that so regulated it, that is, according to what was established in section 33 of the Procedural Code. In this way, the rights of the parties and the essential principle of legal certainty are better safeguarded, since it is ruled out that subsequent procedural legislation comes to resolve in a different manner what occurred in a prior process or proceeding. The latter occurs even independently of the time when the extinction of the criminal action is declared (whether during the validity period of the reform or before it), because the resolution that so establishes has only a declaratory, and not a constitutive, nature regarding the statute of limitations already consummated. Therefore, if in the case under analysis, and according to what was established by the law in force when it arose, the statute of limitations period was reduced by half once the corresponding interrupting acts occurred, the period that must be computed is that of one year and six months and not that of three years as is affirmed in the appeal…”* (The underlining is not from the original). Now, in addition to the lack of description of the elements of the offense of illicit enrichment, both in the accusation and in the demonstrated facts, as well as the term of the statute of limitations for the criminal action having expired, regarding the gifts that [Name 001] materially received after March 10, 2004, one more reason can be added that would prevent considering the aforementioned crime as established, namely, its atypicality. As already mentioned *supra*, [Name 001] served as a public official at ICE from January 1, 2001, to March 10, 2004 (f. 15,895, volume XXXIII), a period during which he received most of the irregular funds. After leaving that position, on May 7, 2004, he received $24,000, and on July 29, 2004, he received $25,000 (proven facts numbers 167 and 170, folios 15,466 and 15,467 front, volume XXXII). As explained above, the criminal offense of illicit enrichment, in the scenario that is of interest here—*admission of gifts presented*—contemplates only the admission of gifts that were presented to the public official in consideration of his office *while he remains in the exercise of the position*, which does not occur with the amounts referred to above. Thus, [Name 001]'s conduct, at least in the two instances already indicated, would also be atypical. For all the foregoing, the appealed judgment is annulled insofar as it declared [Name 001] the responsible perpetrator of a crime of aggravated corruption in its modality of improper bribery. In its place, for procedural economy and in application of the principle *in dubio pro reo*, he is acquitted of all penalty and responsibility for the aforementioned crime. As unnecessary, a ruling on the appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted. Regarding the appeal that [Name 001] filed in a personal capacity, together with other accused persons, this chamber will refer to it later.

**2) [Name 022]** . As extracted from folios 15,837 to 15,893 front of volume XXXII and from folios 15,972 to 15,980 front of volume XXXIII (where a joint assessment of the situation of [Name 001] and [Name 022] is made), as well as from the general sections of the judgment, also mentioned by this chamber when examining the case of [Name 001], namely, those related to the general framework concerning the contracting of the 400,000 GSM cellular lines (f. 15,512 front and following) and with the supposed corruptors and the criminal plot (f. 15,572 front and following), to determine [Name 022]'s responsibility, the *a quo* considered a series of circumstances. Those set forth from folios 15,837 to 15,893 front of volume XXXII can be synthesized as follows: **i)** There is abundant documentary evidence that establishes that [Name 022] was a member of the board of directors of ICE from June 1, 1994, to May 31, 2002; **ii)** as a member of said board, the accused had voice and vote in the decisions adopted and, in what is of interest here, regarding the matter of the 400 thousand cellular lines (the court here cites the minutes of some of the board of directors' sessions); **iii)** between [Name 041], [Name 078], and [Name 022] there existed a relationship of trust and friendship, a relationship that continued after the year 2002 when his appointment to the board of directors ceased. There is abundant documentary evidence, all examined in depth in the judgment, that accounts for the attentions that [Name 041] and [Name 078] provided to [Name 022]. For example, they made hotel reservations in Madrid and Paris for [Name 022] (year 1996); they paid for trips, among them one to Spain (1999), and managed what was necessary so that [Name 139] would provide him attentions on a trip he made to that country (1996). The court analyzed one of the documents that [Name 022] sent to [Name 078], requesting him to make reservations in Madrid and Paris. In that missive, in addition to indicating that he would write to him later, [Name 022] bids farewell with the words *“a hug [Name 290]”*. [Name 078] responded to this missive with a copy to [Name 041], confirming the reservations. The *a quo* also highlights that [Name 105], who availed himself of an abbreviated procedure, intervened in some of these facts; for example, in 1997, on the occasion of a trip by [Name 022] to Spain, it is [Name 105] who asks [Name 078], with a copy to [Name 041], for help with [Name 022]'s hotel expenses, help that was indeed provided; **iv)** the court weighed documentary evidence from which it derives that [Name 091] initiated relations with the travel agency SERTUR in January 2000 and that, according to the accounting records of that company, [Name 105], [Name 064], [Name 001], and [Name 022] used its services, the latter accused in May 2002. According to the court, this is not a coincidence. Three of those favored with the trips were ICE officials and another was related to the company [Name 114], in turn linked to [Name 060]. Although they are trips that take place after the contract for the 400,000 lines was approved, the appealed judgment says, they are not unrelated to those facts, just as the money transfers that [Name 022] received starting in March 2002 (the date of the approval) are not; **v)** the offers and deliveries of the gifts to the accused are coincident, both temporally and as to the amounts received, as well as as to the corporation that issued the investment certificates, the corporation that ordered the transfers of the monies, and the person who managed the bank account; **vi)** it makes no sense to think that the gifts were delivered to [Name 022] and to [Name 001] because [Name 041] "really liked them." They were because they had been promised in exchange for them promoting the migration to GSM technology; **vii)** report 011-SDI-206, evidence 630, file named Refrend 114363, is an email message sent on September 5, 2001, by [Name 022] to [Name 078]. It relates to a study that that accused requested from an ICE official for his personal use and, when he had it in his possession, he sent it to [Name 078] with the purpose of informing him of the "negative atmosphere of the Comptroller's Office" regarding, among other things, direct contracts 108212 and 108213 approved on December 5, 2000, by the ICE Board of Directors, aimed at expanding the [Name 091] and Siemens brand centers that existed in the country and which, at the date of that report, had not been approved. This is information that, although sent to [Name 078] on September 5, 2001, that is, after the abbreviated process for the 400 thousand lines had been awarded to [Name 091] (on August 28, 2001), remained of interest to him, since this award had not been approved by the Office of the Comptroller General of the Republic, thus making it urgent that he know the criteria and requirements of the Comptroller's Office regarding direct contracting and the possibility that opened up for [Name 091] to expand the contract for the 400 thousand lines by 50%; **viii)** the relationship between [Name 041] and [Name 022] extended beyond May 31, 2002, when the latter ceased to be an ICE director. This is demonstrated with documentary evidence examined in the judgment (f. 15,850 front); **ix)** from the testimonial evidence, this close relationship is also extracted, as there are several witnesses who account for [Name 022]'s presence in [Name 091]'s offices, a link between [Name 041] and [Name 022], and the sending of sealed envelopes—whose content could not be determined—by [Name 041] to [Name 022], specifically to the latter's domicile and not to the ICE offices, as was the case with what was sent to [Name 095] (e.g., the testimonies of [Name 142], [Name 144], [Name 148], and [Name 150], examined from folios 15,851 to 15,855 front); **x)** although there is no direct evidence of the promise of a gift (which is understandable in the case of an illegal act), *its existence can be demonstrated through several elements*: **1)** The monies received do not arise from legal and transparent negotiations and, [Name 022] is so aware of this situation, that he used mechanisms to try to distance the goods received from his person, despite which, through exhaustive studies, it was determined that the funds originated from [Name 060]. **2)** [Name 041], as representative of [Name 060], and [Name 078], considered it necessary to have help from ICE officials and from other agencies so that a public tender could be opened in which the company could participate and be the awardee of the 400 thousand mobile lines. To arrive at this conclusion, the court considered the unfavorable background that said company had in contracting with ICE. Based on the testimony of [Name 128] and on abundant documentary evidence specified in the judgment (f. 15,857 to 15,861 front), [Name 091]'s disagreement with ICE policies is explained, particularly those assumed to contract 83,000 lines in 1999 and 100,000 lines in 2000, which placed the company at a clear disadvantage compared to other competitors, e.g., Ericsson, a situation that was denounced by [Name 091] in different spheres, namely, ICE itself, the Office of the Comptroller General of the Republic, the Legislative Assembly, and the press itself (f. 15,857 to 15,861 front). This situation is what first shows the need and urgency that [Name 041] and [Name 078] had, on the eve of a contract like that of the 400 thousand cellular lines, to have people within ICE who were sympathetic to them, a project of which they were aware, since, as the defense acknowledges, the topic of technology migration had been discussed for a long time. Even, since 1998, [Name 091] offered to donate a GSM-PCS system for 2000 terminals.

<b><i>3)</i></b> An additional evidentiary element is the testimony of [Name 064], to the effect that [Name 041] and [Name 078] offered him a reward in exchange for helping to materialize the migration to open or GSM technologies; to move toward a public tender or bidding process and to vote in their favor. [Name 064] was clear that both corruptors spoke to him of courtesies or rewards for those who helped them. He also described the environment prior to the contracting of the 400 thousand lines, the deficit in fixed-line technology and especially in mobile, noting that at that time, in fixed-line, the main provider was [Name 091] while in mobile, due to the use of captive technologies —TDMA—, other companies could not compete. Even then, it was clear that the future was cellular technology and an interest in migrating to GSM was detected, since there was no captivity regarding the technology. He indicated that [Name 091] used public opinion instruments to explain the importance of migrating to other technologies and noted that said company always maintained that it was being subjected to discriminatory treatment. This assessment by [Name 064] confirms that, before the contract for the 400 thousand lines, [Name 091], through [Name 041], was showing its disagreement with the policies followed regarding direct contracts in which it could not participate. <b><i>4)</i></b> Another element that allows the promise of a gift to be considered proven is the so-called “proposed action plan” (propuesta de ruta de acción), designed by [Name 124] (f. 15,863 ff.). According to the judgment, although [Name 124] abstained at trial, the document in question describes actions to confront the problems of [Name 091] with the ICE. In it, [Name 124] (who —according to [Name 132]— was a political strategist who knew the environment quite well), speaks of the need to gather support in the business sector, the Catholic Church, minority parties, and the political sector. Specifically, he mentions the need to obtain the support of three deputies, a pre-candidate for [...], members of the board of the National Liberation Party, and the private advice of a former president. Again, an element that reveals the urgency and need that [Name 091], in the person of [Name 041], had to exhaust all avenues so that its offer regarding GSM technology would be accepted by the ICE. <b><i>5) </i></b>Another indication that accounts for the promise is the abbreviated procedure to which [Name 068] was subjected, for acts of the same nature as those already known (Evidence No. 747). <b><i>6)</i></b> Although in the minutes of the board of directors’ sessions where [Name 022] participated, he never openly manifested himself in favor of [Name 091], the foregoing is not surprising, since at that time the discussion was favorable to that company (f. 15,866 recto). On the other hand, the circumstances indicated by the <i>a quo</i> on folios 15,972 a to 15,980 recto of volume XXXIII (and which are largely a reiteration of those already referred to), are the following: <b><i>xi)</i></b> The relationship between [Name 091] and the ICE before the contract for the 400,000 lines was tense. By way of example, in the direct contracting of 83,000 lines in 1999, the participation of [Name 091] was not permitted, for which reason this company denounced the ICE before the Comptroller General of the Republic and conducted a public campaign to explain that denunciation. The same can be argued with the project from the year 2000, to expand by direct contract by 100,000 lines. In this case, problems arose again between both parties and, once more, [Name 091] campaigned against what it considers to be a problem of transparency in the ICE. All these campaigns sought to position [Name 091] with the ICE and to break the chain of direct contracts to specific suppliers; <b><i>xii)</i></b> the action plan prepared by [Name 124]; <b><i>xiii)</i></b> the declaration of [Name 064] in the terms set forth above; <b><i>xiv)</i></b> the declaration of [Name 116], who, in relevant part, spoke of the statements made by [Name 041] before her and other members of the commission that [Name 060] sent to the country to investigate the facts that were being published in the press. According to the deponent, [Name 041] acknowledged having paid [Name 022], [Name 001], [Name 064], and [Name 018], and added that those payments were his initiative; <b><i>xv)</i></b><i> [Name 001]</i> accepted having received money from [Name 091]; <b><i>xvi)</i></b> there are notes —also mentioned earlier— where it is discussed how [Name 001] was a better interlocutor for [Name 091]; <b><i>xvii)</i></b> [Name 041] invited [Name 001] to lunch; <b><i>xviii)</i></b> between [Name 022], [Name 041], and [Name 078] there existed a relationship of friendship, trust, and collaboration, which was maintained after the first ceased to be a member of the ICE’s board of directors. This is evidenced by a series of documents, namely: <i>1.-</i> a missive dated May 22, 1996, where [Name 041] requests [Name 139] that, on account of a trip by [Name 022] to that nation, he be provided any attention as he is a member of the ICE and this institution is the principal client of [Name 091] in the country; <i>2.-</i> a fax, which can be situated between March 28 and 29, 1996, where [Name 022] thanks [Name 078] for an invitation and requests him to make reservations in hotels in Madrid and Paris, with a copy of that fax being sent to [Name 041]. <i>3.- </i>There is also a fax sent on July 18, 1997, by [Name 105] to [Name 078] with a copy to [Name 041], indicating that [Name 022] is going to Spain and requesting they help him with the hotel expenses in Madrid; <i>4.- </i>the documents evidencing that on October 8, 1999, a trip to Spain was paid for him; <i>5.-</i> Evidence No. 630, a namely, an email dated September 5, 2001, where [Name 022] informs [Name 078] about the negative atmosphere in the Comptroller General of the Republic in relation to the direct contracts aimed at country and that, as of the date of the report, had not been approved. In the same vein, he informs him about the contract for the 160,000 lines awarded to [Name 091] and about which, unofficially, it was heard that the Comptroller’s Office would in no way approve it because there were interests at stake and that if one wanted to buy additional cellular lines, it was viable to do so through a 50% expansion process of the 400,000 lines (folios 15,973 a to 15,978 recto). <b><u>Analysis of the aforementioned evidence after the hypothetical exclusion of [Name 064]'s declaration</u></b> : The fundamental evidence to establish that [Name 022] received a promise of a gift from the corruptors, just as happened with [Name 001], was the account of [Name 064]. Although there is a series of indications that allow that fact to be considered proven <i>with a degree of probability</i>, without the declaration of the collaborating accused it is impossible to do so with absolute certainty. As explained in the previous case, there is no doubt that the executives of the company [Name 091] were upset with the ICE's policies regarding mobile telephony, since due to the use of captive technologies, [Name 091] could not compete in that market. Likewise, it was demonstrated that they had no qualms about denouncing the situation in different spheres, understanding that despite the need to migrate to open technologies, the institution insisted on contracts that perpetuated TDMA technology. It was also demonstrated that [Name 091] resorted to a professional —[Name 124]— to develop a strategy to confront that problem; that [Name 022] had a close relationship with [Name 078] and [Name 041] that originated years before the facts investigated here; that also for years, [Name 022] received from this company various advantages of economic content, some of which were requested by him, and finally, that after the award of the contract for the 400,000 lines, he received, like other public officials, funds originating from [Name 060]. However, <i>from all of this it cannot be inferred that a promise of a gift was conveyed to [Name 022] at the end of 2000 and the beginning of 2001 so that, in exchange, he would carry out the necessary actions within the scope of his functions as a director of the ICE to promote the migration from TDMA technology to GSM technology, to promote purchases through public tenders and prevent them from being aborted, as well as to vote in favor of [Name 091] in the contracting process for the 400,000 lines</i> (cfr. proven fact No. 117). Next, this chamber will conduct a thorough examination of the evidence mentioned <i>supra</i>. Regarding the relationship of trust between [Name 041], [Name 078], and the co-defendant [Name 022], there is abundant evidence that accounts for it. Thus, for example, Evidence 59, called folder CRG 005 ICE, record 370760. In it, there is an unnumbered document, located before folio 345. It is a fax dated May 22, 1996, sent by [Name 105] to [Name 041] in which he tells him about a trip by [Name 022] to Chile, requesting that he be given special treatment. In that same Evidence No. 59, a at folio 354, there appears a fax sent by [Name 022] to [Name 078] between March 28 and 29, 1996, where he thanks him for an invitation and at the same time requests him to make reservations in Madrid and Paris for the 1st, 2nd, 5th, and 7th of April. In this document, he bids farewell with the phrase <i>"an embrace [Name 290]</i> <i>"</i>. There is also, at folio 352 of the mentioned evidence, the response that [Name 078] gave to this message, confirming the reservations. They are documents <u>from the year 1996</u>, which although revealing familiarity (extremely reprehensible, since we are talking about a director of the ICE who repeatedly receives favors from a supplier company of the institution), do not provide elements to assure that there was a promise of a gift <u>years later</u>. The same happens with Evidence No. 65, from folder CRG.002-01/02 A ICE, which consists of a document dated July 18, 1997, addressed to [Name 078] by [Name 105] and where he informs him of a trip that [Name 022] would make to Spain, with the request that "they help him" with the hotel expenses in Madrid, a place he would arrive at on Thursday the 24th in the morning and from which he would return to San José on Monday the 28th, a request that was indeed attended to according to the document at folio 144. The court also weighed Evidence No. 80, folio 238, which accounts —as stated at folio 15,845 of volume XXXII— that on October 8, 1999, a trip to Spain was paid for [Name 022]. As can be observed, we are speaking of documents that demonstrate that [Name 022] had, years before the facts investigated here, a close relationship (very reprehensible, indeed) with the representatives of [Name 091], clearly improper, but which in no way allows it to be demonstrated that years later and on the occasion of the contract for the 400,000 lines, a remunerative promise with specific content and purpose was conveyed to [Name 022]. Likewise, there is evidence from which it can be inferred that this close relationship was maintained after [Name 022] ceased to be a director of the ICE (cfr. Evidence No. 633, Annex 3, folios 9 a to 11), but from which a judgment of certainty regarding the point so often mentioned cannot be derived. Added to this, it is sufficient to review Evidence No. 80, specifically documents numbers 238 and 259, to conclude that it cannot be derived from it that [Name 091] paid for a trip to Madrid for [Name 022], as the trial court incorrectly affirmed. What is established with that evidence is that he was invited to eat at a restaurant in that city called Botillería del Café de Oriente. A similar point must be made regarding the official communication from [Name 126], visible in volume V of the principal file, folio 1,771 recto. According to the court, the trips referred to therein, like the monies received after the award, are part of the economic advantages promised before it was given. Such an affirmation, the undersigned understand, lacks foundation. In that document, Sertur indicates that in its accounting records there appear two invoices from the month of May 2002 that account for two trips made by [Name 022] to Guatemala and Tegucigalpa at the expense of [Name 091]. Although it is additional evidence that accounts for the dynamic (extremely reprehensible, it bears repeating) that existed between some public officials of the ICE and the institution's supplier companies, where the latter showered the former with advantages of economic content, it cannot be inferred from it that on the occasion of the contract for the 400,000 lines a promise of economic retribution was formulated that Mr. [Name 022] accepted. As happened with the money received after the award, the receipt of advantages of patrimonial content does not allow that fact to be demonstrated, much less to assert, as the <i>a quo</i> does, that they are part of what was promised, especially considering that [Name 022] was prone to requesting and receiving gifts from that company years before the facts submitted for examination here occurred. On the other hand, regarding the already mentioned Evidence No. 630, consisting of report 011-SDI-206, file Refrend 114363, which is an email sent by [Name 022] to [Name 078] on September 5, 2001, note that in it, the first warns the second about the negative atmosphere in the Comptroller General of the Republic in relation to the direct contracts aimed at expanding the [Name 091] and Siemens brand switches that existed in the country and that, as of the date of the report, had not been approved. He also speaks to him about the direct contract for the 160,000 lines awarded to [Name 091] and that, unofficially, it was heard that the Comptroller's Office would in no way approve it, because there were interests at stake and that if one wanted to buy additional cellular lines, the purchase through a 50% expansion process of the 400,000 lines was viable. As can be appreciated, it is a communication post-dating the award and from which, due to its content (which relates to direct contracts and not to the abbreviated competitive process for the 400,000 lines), it also cannot be inferred that months earlier, prior to the award of the cited contract, the promise of the gift took place under the terms in which it was accused by the requesting body. The trial court itself understands that the intention of [Name 022] with the cited communication was for [Name 078] to be aware of the Comptroller's criteria regarding direct contracting and the possibility that was opening up for [Name 091] to suspect <i>with some degree of probability</i> that the economic retributions were associated with that contract, it does not allow one to assure <i>with a degree of certainty</i> that before its award, [Name 022] had received a promise of economic retribution. So much so that based on all the evidence described above, <i>it is also possible to consider other possibilities</i>, namely, that from before the mentioned contract and without needing a specific promise of economic retribution to be conveyed to him, [Name 022] was committed to the cause of [Name 091] and acted in its favor (as seen, there is evidence demonstrating that since 1996 this public official received advantages of economic content from the cited company) and that therefore, the monies received after the award were merely retribution for an act fulfilled. Likewise, and considering that [Name 022] had no qualms about requesting economic retributions, it is also plausible that he was the one who induced the payment, or that if there was a prior promise, its content was different. Regarding the proposal by [Name 124], it is worth reiterating what has already been stated. The approach suggested by this professional in no way implies the commission of criminal conduct, much less the formulation of promises of gifts to public officials. A similar point must be made regarding the sealed envelopes that were delivered to [Name 022] at his home. The court valued the testimony of [Name 144], who, in relevant part, stated that he, as a messenger for [Name 091], delivered them on the order of [Name 041]. For the <i>a quo</i>, the fact that these documents were not delivered at the ICE with a copy of receipt, as usually happened with other documentation, <i>demonstrates that their content was not discussable in the sessions of the board of directors and that it attended to the illicit purposes proposed with respect to the matter of abbreviated procedure 1-2001</i> (f. 15,854 recto, volume XXXII).<i></i> This is a conclusion lacking any foundation, since, regarding the content of such envelopes, there is no information whatsoever that would allow even a suspicion that it was documentation related to the cited tender, money, or negotiable instruments (e.g., investment certificates), and moreover, even hypothetically assuming this, as has been explained, from the receipt of gifts by [Name 022] one cannot infer that the promise prior to the contract for the 400,000 lines took place. Furthermore, note that the trial court, despite acknowledging that the witness [Name 148], the person in charge of preparing the envelopes, stated that their content was not related to the payment of gifts, concluded that such statements <i>"… do not exclude that the envelopes given to [Name 144] by [Name 041] were different from those mentioned by the witness [Name 148] because the characteristics of some envelopes and others were different: some were yellow in color and others were not" </i>(f. 16,115 recto, volume XXXIII), an assessment that is also unfounded, since, at least from what is recorded by the <i>a quo</i> in the descriptive reasoning of the judgment, [Name 144] did not make categorical distinctions regarding the colors of the envelopes he was to deliver, indicating only that they were "normal" manila envelopes (f. 14,774 and 14,775 recto, volume XXX). In addition, the witness [Name 148] stated that the envelopes could be sent with or without a confidential seal, and that <i>some</i> of these went to the ICE (f. 14,785, 14,786, and 14,787, volume XXX), from which it is reasonably inferred that she also prepared envelopes with other destinations, and it was in relation to all or generally those that she prepared and sent that the deponent denied their content was related to the payment of gifts. For all the foregoing, this chamber understands that it is speculation by the <i>a quo</i> to assert that the envelopes delivered to [Name 022] at his home contained documents linked to the criminal act. Continuing along this line of thought, the court also weighed the testimonies that account for the presence of [Name 022] at [Name 091] (e.g., those of [Name 148] and [Name 150]). This is evidence that, while it allows the close relationship that existed between this accused and the executives of [Name 091] to be demonstrated, and which originated years before the contracting of the 400,000 lines, does not allow one to arrive at the conclusion that the offering of a gift (under the terms and circumstances described by the Public Prosecutor's Office) took place. It bears repeating, this chamber does not cast doubt on the fact that [Name 022] received funds from [Name 060], nor that he was a public official prone to requesting and receiving advantages of economic content from that company; however, this does not permit one to sustain with the degree of certainty required by our Political Constitution that, on the occasion of the contract for the 400,000 lines, a promise of a gift was conveyed to him in exchange for favoring the migration to GSM, the use of public tenders or competitive processes, and for voting favorably towards [Name 091]. Having said that, we shall proceed <u>to examine the three core aspects upon which the trial court based its conclusion that the promise of economic retribution was indeed conveyed, namely</u><i>: <u>i) the antecedents, not at all favorable for [Name 091], before the contract for the 400,000 lines</u></i>. The judgment on the merits analyzed a series of direct contracts in the area of mobile telephony that took place from 1999 onwards and in which [Name 091] could not participate, as well as the company's response to that situation, which ranged from exhausting all internal avenues within the ICE to denouncing the issue before the Comptroller General of the Republic and public opinion. In particular, a direct contract for 83,000 lines in 1999 and another for 100,000 lines in 2000 were examined, both opposed by [Name 091] (f. 15,857 a to 15,861, volume XXXII), all to demonstrate that the cited company was dissatisfied with the ICE's policies regarding the contracting procedure that had been used, since only the suppliers of that time, including Ericsson, had the option to participate. For the <i>a quo</i>, this constitutes a first element for understanding the need that [Name 041] and [Name 078] had, on the eve of a contract like that for the 400,000 cellular lines, to have people within the ICE who would be sympathetic to their interests, a project they were aware of because the transition to GSM technology had been under discussion for some time. By way of example, the court recalls that by 1998, [Name 091] maintained ties with the ICE and made an offer to donate a GSM-PCS equipment for 2000 terminals, an offer that was accepted (folio 15,861). It is for this reason that the representatives of [Name 060] chose to promise and later deliver a gift to [Name 022]. <i><u>ii) A second evidentiary element that the trial court considered regarding the promise was the declaration of [Name 064]</u></i>. According to the <i>a quo</i>, this "witness" did not only speak of the promise of a gift that was conveyed to him by [Name 041] and [Name 078] in exchange for helping to materialize the migration to GSM technology, for the purchase of material or equipment to be made through a public tender or bidding process, and for voting in favor of [Name 091]. He also said that the corruptors mentioned to him that they had courtesies for the people who helped them. With that declaration, moreover, the situation that [Name 091] faced before the contract for the 400,000 lines and that was described <i>supra</i> was confirmed. <i><u>iii) The action plan prepared by [Name 124] is a third element for considering the promise of economic retribution to be proven</u></i>. It speaks of a plan aimed at confronting the problems of [Name 091] with the ICE, which entailed approaches to the business sector, the Catholic Church, and the political sector. In that document, the need to garner the support of at least three deputies, a candidate for president, two members of the National Liberation Party board, and a former president is mentioned (Evidence No. 686). According to the appealed judgment, <i>"</i> <i>This document, without a doubt, evidences the urgency and need that [Name 091] had</i> <i>in the person of the co-defendant [Name 041] to exhaust all social and, above all, political avenues so that its offer regarding GSM technology would be the one accepted by the ICE. Let us recall the dissatisfaction of said company with the administrative policies on contracting matters that the ICE had."</i> (F. 15,864, volume XXXII). As can be drawn from the foregoing, after hypothetically suppressing the declaration of the collaborating accused, we are left with only two evidentiary indications (namely, the action plan proposed by [Name 124] and the discomfort experienced by the officials of the company [Name 091] at being excluded from the mobile telephony market), which are clearly insufficient to confirm the judgment insofar as it considered the promise of economic retribution to [Name 022] to be proven. This conclusion does not vary if these two indications are analyzed together with those that have been mentioned earlier (e.g., the long-standing relationship of trust between this accused and the representatives of [Name 091]; the sending of envelopes whose content is unknown; and, of course, the receipt of funds after the award), since, although from this entire panorama, it is plausible to infer <i>with a high degree of probability</i> that there was a promise of economic retribution, or at least, that the funds received had some link to the contract for the 400,000 lines, <i>this cannot be assured with absolute certainty,</i> to the point that other possibilities that have been repeatedly mentioned and that, furthermore, were not accused by the requesting body, at least not subsidiarily, can be admitted. As happened with [Name 001], this chamber does not doubt that [Name 022] increased his wealth irregularly thanks to the gifts from the cited company, and that there was no legitimate reason to justify his proceeding in this manner; however, this does not allow the promise of economic retribution attributed by the Public Prosecutor's Office to be considered proven, since the evidentiary indications that remain after the exclusion of [Name 064]'s testimony, although plural and independent, do not lead to the conclusion that the promise took place. For, in the case of circumstantial evidence, the consequent fact or presumed fact (in this case, the promise and its acceptance by the accused) must be drawn from the evidence in an immediate, reasonable, natural manner, as it were, which does not happen here, because those elements do not converge into a single conclusion that simultaneously excludes other options that were not contemplated, for example, that the content of the promise was different; that it was a case of acceptance of gifts for an act fulfilled, without a prior promise, or even that it was the public officials who induced the payment of the gifts, which in the case of [Name 022] would also not be strange, since, as was demonstrated, he was prone to requesting all kinds of advantages of economic content from the officials of [Name 091]. Finally, it is important to add that from the judgment handed down against [Name 068] (Evidence No. 747), a judgment of certainty that a promise of economic retribution related to the contract for the 400,000 lines was conveyed to [Name 022] cannot be derived either, since the mentioned resolution was issued in the context of an abbreviated procedure, where the acceptance of the facts by [Name 068] had a personal and formal character, and to that extent, little evidentiary significance can be given to it as regards this case.

This is an argument that also applies to the conviction handed down against [Name 105], with identical results. Added to this, as indicated when examining the situation of [Name 001], the offer that [Name 068] received was extended by [Name 105] and the same [Name 046], and in the case of [Name 022], it was attributed to other persons, namely, [Name 078] and [Name 041], such that we also cannot assert that the factual platforms are identical, to the point of logically deriving from one what is affirmed in relation to the other. Finally, as the appealed judgment rightly acknowledges, from the board of directors minutes analyzed, no particularly striking action by [Name 022] in favor of [Name 091] can be inferred either; hence, it is not a piece of evidence whose consideration modifies what has been affirmed by this sentence appeals court. In sum, for the undersigned, without the testimony of [Name 064], what can be established is that [Name 022] received gifts (dádivas) from [Name 091] before the events investigated here—which was not charged—and that he also accepted them after the award of the 400,000 lines, notwithstanding which it cannot be assured, <i>at least not with certainty</i>, that those funds were destined to fulfill a promise made to him months earlier and which he accepted, aimed at acting for the benefit of [Name 091] on very specific points: technology migration, promotion of tenders or public competitions, and a favorable vote concerning the contract for the 400,000 lines. Finally, it must be reiterated that although [Name 041] admitted before [Name 116] to having paid public officials, he never mentioned having made <i>a promise in that sense</i> to [Name 022]. At the risk of unnecessary repetition, note that—according to [Name 116]—in a draft statement sent by [Name 041], he indicated that it was [Name 064] and other public officials who requested the rewards for having helped in the opening of public tenders instead of direct contracts (f. 15,157 recto, volume XXXI). Although the witness also stated that in the meeting they held with [Name 041], he did not say the above (cf. same folio), what was captured in the cited draft allows the existing doubts to increase as to whether, before the award, a promise of a gift (dádiva) with a specific content and purpose was made, and whether it was accepted by [Name 022]. In summary, after excluding the illegally obtained evidence and examining the remainder, this court concludes that from this evidence, it cannot reasonably be inferred that there was a prior promise of a gift (dádiva), and thus the circumstances that would allow the crime of aggravated corruption in its modality of improper bribery (cohecho impropio) to be considered established, could not be deemed proven. Therefore, what is appropriate is to assess whether the facts that remain unaltered can be considered constitutive of another crime, which is ruled out in advance. As has been pointed out, other possibilities were not considered in the charges brought by the prosecuting authority, namely, that the gifts (dádivas) were received without a prior promise, for an act already performed; that they were required or requested by the public officials; or that, having been previously promised, they had a different content. After ruling out the prior promise concerning the 400,000-line contract, the only thing that can be deemed proven is that [Name 022] <i>admitted</i>—understood as <u>received</u>—the economic advantages that were given to him, conduct that cannot even be subsumed under the criminal type of illicit enrichment (enriquecimiento ilícito). As explained earlier, in the case of the <u>admission of gifts (dádivas) presented</u> in consideration of the public official's office, it is essential that the conduct occur <u>while the active subject remains in the exercise of the position</u>. Now, as extracted from the proven facts (specifically numbers 115 and 118 to 126), [Name 022] was a director of ICE until May 31, 2002, <u>and the gifts (dádivas) were presented to him from October 2002 to May 2004</u>. Therefore, the conduct of [Name 022], in light of the crime of illicit enrichment (enriquecimiento ilícito), would be atypical. It is important to emphasize that in this case, the scenario of the <u>admission of a gift (dádiva) offered</u> that the criminal type of illicit enrichment (enriquecimiento ilícito) also contemplates cannot be applied, since it has not been possible to deem it proven that [Name 022], <i><u>while he remained in his position and by reason of it</u></i>, was <i>offered</i> a gift (dádiva) that he accepted, which would have been sufficient to establish the crime and, consequently, would have made irrelevant the moment when the economic advantage was materially received. Furthermore, it is held that the criminal action to prosecute the crime of illicit enrichment (enriquecimiento ilícito) would be time-barred. This crime is punishable by a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years and was reduced to 18 months with the first formal charge (articles 31 to 33, subsection a) C.P.P.), a procedural act that occurred on October 1, 2004 (f. 146 to 161 recto, volume I). That is, the 18-month period expired on April 1, 2006, and by that point <i>no procedural act had occurred that, by legal provision, had the virtue of interrupting or suspending its counting</i>. Moreover, as explained when examining the situation of [Name 001], <u>a section to which the parties must refer to avoid unnecessary repetition</u>, this conclusion is not modified if considering what is set forth in article 376 C.P.P., especially the interpretation that the Third Chamber made of this norm, since as of the date the resolution declaring this case to be of complex processing became final (namely, June 26, 2006), the criminal action was already time-barred. Similarly, article 62 of Law No. 8422, Law against corruption and illicit enrichment in public service, is also not applicable in the particular case of [Name 022], since this provision came into force on October 29, 2004, that is, after the accused gave his investigative statement and the interrupting and reducing effects on the calculation of the statute of limitations period simultaneously operated. For the foregoing reasons, the appealed judgment is annulled insofar as it declared [Name 022] the responsible perpetrator of a crime of aggravated corruption in the modality of improper bribery (cohecho impropio). Likewise, for procedural economy and in application of the principle <i>in dubio pro reo</i>, he is acquitted of all penalty and responsibility for this crime. Because it is unnecessary, a ruling on the cassation appeals filed by his public defender, licensed attorney Yamura Valenciano Jiménez, is omitted. <o:p></o:p></span></p> <p class=MsoNormal style='line-height:150%'><b><u><span style='font-family: Arial'>3)</span></u></b><u><span style='font-family:Arial'> [Name 006]</span></u><span style='font-family:Arial'>: In relation to this accused, the court deemed it proven that he accepted a gift (dádiva) while remaining in the exercise of his position, specifically, that of Deputy Chief of the ICE Switching Department; a gift (dádiva) that was, moreover, delivered in three installments. By virtue of these facts, [Name 006] was convicted of a crime of illicit enrichment (enriquecimiento ilícito). As the basis for this decision, from folios 16,256 to 16,282 recto of the judgment, volume XXXIV, the <i>a quo</i> considered the following: <b><i>i)</i></b> [Name 006] had a relationship with the company [Name 091], since the specialized switching area was responsible for performing equipment installations and administering contracts. Additionally, [Name 006] had active participation in several contracts awarded to that company and which were recommended by him, namely, (i) No. 103830 for the acquisition of 38 remote subscriber units, awarded in session No. 5109 of September 7, 1999; (ii) contract No. 104333 for the acquisition of 509 primary ISDN digital TED accesses in exchanges, awarded on April 13, 2000, in which [Name 006] was co-administrator of the contract; (iii) contract No. 105543 for intelligent network expansion, awarded in session No. 5210 of August 22, 2000. In this, [Name 006] was in charge of acceptance tests; (iv) contract No. 108213 for the expansion of [Name 091] 1000 - E10 exchanges, awarded in session No. 5294 of May 9, 2001. [Name 006] was co-administrator of the contract; (v) contract No. 112346, execution of the purchase option for the intelligent network, awarded in session No. 5375 of February 12, 2002; (vi) contract No. 112765, expansion of the [Name 091] exchanges, awarded in session No. 5404 of May 14, 2002. [Name 006] was the administrator of this contract. The proof of the above is documentary in nature and is mentioned at folios 16,257 and 16,258 recto of the judgment. <b><i>ii)</i></b> By reason of administering the contracts, [Name 006] had a close relationship with the representatives of [Name 091], a matter also attested to by witnesses such as [Name 153] and [Name 156]. <b><i>iii)</i></b> Based on those same testimonies and documentary evidence No. 344, it was established that [Name 006], as head of the ICE switching department, had, among other functions, to determine needs regarding expansions or improvements in different areas of the country. As coordinator, he had under his command a team of technicians who determined equipment needs; based on these needs, a document was prepared and, in the words of witness [Name 156], “became a requirement,” and it fell to the accused [Name 006] to sign the certification of the provider's need. Subsequently, he took the award recommendation to the heart of ICE's board of directors so that this body could decide whether to convene the competition. In addition to the aforementioned competencies, he was also in charge of installing equipment, executing contracts, and evaluating performance, for which he was a key official within the award procedure, not only internally at ICE, but also for those companies aiming to participate (f. 16,276 recto); <b><i>iv)</i></b> [Name 006] had nothing to do with abbreviated procedure 1-2001 concerning the contract for the 400,000 lines, but he did with fixed-line telephone contracts; <b><i>v)</i></b> there is documentary and expert evidence, also examined in the judgment, that allows it to be proven that [Name 006] received funds from [Name 060] and that they were transferred using the same mechanisms employed to deliver economic advantages to other public officials (namely, through the account held by [Name 058].); <b><i>vi)</i></b> this accused received the sum of $110,336.20 dollars, a patrimonial increase that has no justification whatsoever, especially considering that his monthly salary was approximately 400,000 colones, according to the testimonial evidence presented. <b><u>Consequences of the hypothetical exclusion of [Name 064]'s testimony</u></b>. As this chamber understands, [Name 064]'s statement was not decisive in establishing the responsibility of [Name 006], to the point that, if hypothetically suppressed, the decision suffers no modification whatsoever. Therefore, the claims that his defenders have made against the lower court's judgment will be addressed further below. <o:p></o:p></span></p> <p class=MsoNormal style='line-height:150%'><b><u><span style='font-family: Arial'>4) [Name 018]</span></u></b><span style='font-family:Arial'>: The <i>a quo</i> convicted him of the crime of illicit enrichment (enriquecimiento ilícito), understanding that, in order not to violate the principle of correlation between accusation and sentence, it was not possible to deem the promise of a gift (dádiva) proven and convict for the crime of aggravated corruption in its modality of improper bribery (cohecho impropio), in the terms requested by the Public Prosecutor's Office. To determine the responsibility of [Name 018] regarding the mentioned illicit enrichment (enriquecimiento ilícito), the court weighed a series of circumstances that can be schematized as follows: <b><i>i)</i></b> [Name 018] was a deputy in the Legislative Assembly from May 1, 1998, to April 30, 2002. Subsequently, from May 8, 2002, to April 21, 2004, he was Executive President of the Costa Rican Social Security Fund (this is attested to by the documentary evidence cited at folio 15,998 recto and the testimony of [Name 158], also cited on that same folio); <b><i>ii)</i></b> as a deputy, he was part of the special joint commission that was formed after the protests over the so-called ICE combo. The aim was that no bill regarding ICE would be processed without the opinion of that commission (thus, evidence No. 59, folio 93). This is of interest, says the court, because in the management offices of [Name 091], a document titled “New Telecommunications Law (ICE Combo), impact on [Name 091] and actions to follow” was seized, which reveals the importance for the company of any action that could modify or affect business expectations or contracts with the referred institution (f. 15,999 recto); <b><i>iii)</i></b> [Name 063] worked at ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Name 091] and [Name 018]. The representatives of [Name 091] approached the latter thanks to the mediation of [Name 063], to present their concerns about the direct contracts that ICE was making and which, according to [Name 091], left it out of the market. This is attested to by report No. 428-DEF-443-05/05, evidence No. 630, PC06, file “White Book,” and the statement of [Name 128]; <b><i>iv)</i></b> it was ruled out based on the testimonial evidence presented that [Name 018] had been a consultant for the company [Name 091], or that he had any business or employment relationship with [Name 058] that would justify the receipt of the monies given to him. In fact, [Name 158] testified that this accused told him he had earned money with [Name 091] easily, since he had done nothing, and according to witness [Name 116], [Name 041] spontaneously told her that he had paid bribes to public officials, including [Name 018]. The same holds true for the testimony of [Name 142], who indicated that [Name 041] acknowledged having paid gifts (dádivas) to public officials, in the media. Finally, the company [Name 091] had within its hiring policies a prohibition against hiring public officials as advisors. <b><i>v)</i></b> Based on the statement of [Name 128], it was established that [Name 018] was informed about the mobile telephony issue and [Name 091]'s interest in eliminating direct contracting without a tender. [Name 091] had conducted two public and denunciation campaigns, one to oppose the contracting of fixed lines to Ericsson in 1999 and another in the year 2000, concerning GSM technology, and contact with [Name 018] had existed since 1999. There were several meetings with the then-deputy, and on one occasion, [Name 018] asked [Name 128] to speak with his superiors, a meeting that, according to the witness, did take place. <b><i>vi)</i></b> For the court, from what [Name 128] said, it can be inferred that [Name 018] was contacted to discuss the elimination of direct contracts and the opening of the tender, which leads to the topic of the 400,000 cellular lines. This confirms [Name 064]'s version, in the sense that the offer of the gift (dádiva) had to do with the issue of mobile exchanges and GSM technology and, to that extent, there are indications that allow it to be glimpsed that [Name 018] was also made a remunerative promise under modal and temporal circumstances similar to the one extended to [Name 064], only that while the latter was called by [Name 078], it was [Name 018] who asked to speak with [Name 128]'s superiors. Additionally, the payments were also made to him through the same channels as to other accused. <b><i>vii)</i></b> There is documentation showing that on August 17, 2000, at [...] café, [Name 041] met with [Name 018] and [Name 063]; <b><i>viii)</i></b> [Name 144], a messenger for the company [Name 091], said he had taken envelopes, sent by [Name 041], to the accused [Name 022], [Name 001], [Name 018], and [Name 028], at their homes and offices. [Name 041]'s secretary said that envelopes were sent to ICE and to the accused, and that she knew their content; however, <i>“…this does not exclude that [Name 144]</i> <i>took envelopes that were not the ones she knew of; envelopes that also had different characteristics from those described as known by her person.”</i> (F. 16,011 recto). <b><i>ix)</i></b> Just as in the year 2000, [Name 091]'s public campaign in favor of public bidding and migration to GSM technology began, between July 2000 and December of that year, representatives of [Name 091] also met with deputies and other figures from the political sphere. It was then that the meetings with [Name 018], [Name 001], and [Name 064] took place, all of whom ultimately received funds from [Name 060]. <b><i>x)</i></b> Finally, the <i>a quo</i> weighed abundant documentary evidence, described from folio 16,014 recto to 16,054 recto, to demonstrate that the funds received by [Name 018] came from [Name 060]. <b><i>xi)</i></b> Despite the above, the court understands that the prosecution's request to convict [Name 018] for the crime of improper bribery (cohecho impropio) is not admissible, on the basis that this accused attended to the representatives of [Name 091] in compliance with the obligation every deputy has to receive the public. The foregoing is because fact number 220 of the accusation refers to the offer of the gift (dádiva) and fact number 221 to the acceptance of it, without the elements of improper bribery (cohecho impropio) having been described. Therefore, indicates the court, regardless of whether what was stated by the Public Prosecutor's Office in conclusions was proven or not (namely, that [Name 018] was made a remunerative promise for attending the public), since the accusation does not contain such information, the only crime that can be deemed established is that of illicit enrichment (enriquecimiento ilícito), insofar as he admitted the gift (dádiva) that was presented or offered to him by reason of the position he held (f. 16,054 to 16,056 recto). In the case of the accused [Name 018], <b><u>the hypothetical exclusion of [Name 064]'s statement</u> <u>has particular significance</u></b>, because although without that evidence, as will be explained later, it is impossible to confirm the appealed judgment insofar as it deemed it proven that this defendant admitted a gift (dádiva) <i><u>that was offered to him</u></i> in the terms provided by the criminal type of illicit enrichment (enriquecimiento ilícito), the application of the other scenario contemplated in art. 346 subsection 3) of the Criminal Code, namely, <i>admission of a gift (dádiva) presented</i>, is not ruled out. This being the case, and since it is evident that resolving the legal situation of this accused (including the issue of the statute of limitations) requires a more measured examination of the facts and evidence, this chamber will proceed to hear the appeals filed by [Name 018] personally and by his defender, licensed attorney José Miguel Villalobos Umaña. <o:p></o:p></span></p> <p class=MsoNormal style='line-height:150%'><b><span style='font-family:Arial'>5) [Name 033]</span></b><span style='font-family:Arial'>: The core evidence considered by the <i>a quo</i> was the statement of [Name 064]. Without it, there is no possibility that the judgment of certainty reached will remain unaltered, since although after its hypothetical suppression, it can be reasonably demonstrated that some funds from [Name 060] ended up in his hands, or in those of natural or legal persons close to him, these are funds that [Name 064] received in the first place and that later, only in part, he transferred to [Name 033]. Furthermore, the only evidence about <i>the motive or justification</i> for those transfers is the statement of the collaborating accused himself, in the sense that at the end of the year 2000, he spoke with [Name 033] about the promise of economic retribution that had been made to him by the leaders of [Name 091] in relation to the 400,000-line issue, and that the then [...] urged him to accept it. Therefore, it is held that without [Name 064]'s account, the conviction imposed on [Name 033] is left devoid of any evidentiary foundation. To better explain the preceding conclusion, this chamber will begin by synthetically indicating the arguments used by the trial court to convict [Name 033], not without first clarifying that it will not delve into the reasons invoked by the <i>a quo</i> for considering [Name 064]'s account credible, not only because they have already been analyzed in this resolution, but because they lack all relevance considering that the opportunity criterion and the evidence derived from it were declared illegal. Regarding [Name 033], the following was weighed: <b><i>i)</i></b> [Name 064] had an extensive career in public service. He was, for example, a deputy, Minister of Housing and Urban Settlements in the [Name 033] administration (from May 1998 to July 1999), presidential advisor from August 1, 1999, to May 9, 2002, and director general of the presidential house. Also, with the endorsement of [Name 033], he was appointed by the government council as a director of ICE from August 3, 1999, onward, positions he held simultaneously. [Name 064] was a director of ICE until May 31, 2010, and for this, he had the endorsement of the following administration. [Name 064] was a person very close to [Name 033], and despite the hierarchical relationship between the two, there was also a friendship (folios 16,088 to 16,111, volume XXXIII); <b><i>ii)</i></b> [Name 064], as a director of ICE, had a relationship with [Name 041] and [Name 078] (f. 16,111 to 16,116 recto); <b><i>iii)</i></b> as determined, since 1997 there was a practice by [Name 091] of offering various attentions and courtesies to public officials of ICE. The <i>a quo</i> states that although the ultimate goal of this practice was not to make illicit proposals, [Name 041] and [Name 078] used it to approach public officials, gain their trust, and determine if they could admit a potential remunerative promise. All of this confirms what [Name 064] said, in the sense that there was a seduction process that culminated with the promise of a gift (dádiva) (f. 16,112 recto to 16,116 recto); <b><i>iv)</i></b> there were meetings between some public officials—[Name 022], [Name 001], and [Name 018]—with [Name 041], and he also sent them envelopes (f. 16,114 and 16,115 recto); <b><i>v)</i></b> [Name 041] made a spontaneous statement where he accepted the payment of gifts (dádivas) to public officials, a statement several witnesses referred to ([Name 116], [Name 164], and [Name 142]). [Name 068] admitted the facts, [Name 001] accepted before the press having received money, and [Name 064] also admitted having received from [Name 041] and [Name 078] a promise prior to the award, which he made known to [Name 033] (f. 16,111 and 16,112 recto); <b><i>vi)</i></b> of the existence of the remunerative promise extended to [Name 064], the core evidence is his own “testimony,” which the <i>a quo</i> considered credible. Of the meeting between [Name 064] and [Name 033] at the latter's house, it is also that statement (cf. folios 16,126 to 16,134 recto, volume XXXIII). [Name 064] said that at the end of the year 2000, he met with [Name 078] and [Name 041] at the first one's request, at restaurant [Name 094], near the airport, an opportunity in which both made him a promise of a gift (dádiva) in exchange for promoting technology migration, pursuing the bidding process instead of direct purchases, and voting in favor of [Name 091]. That he, in principle, accepted, but that upon further thought, he decided to ask [Name 033], since the latter was in a better position to direct the opinion of the board of directors' members if necessary. It is for this reason that he met with [Name 033] the following day, to present the offer, which the then [...] endorsed, indicating that the distribution of the profit would be 60% for [Name 033] and 40% for [Name 064]. <b><i>vii)</i></b> To confirm the existence of the meeting at [Name 094], it was taken into account that, according to their migratory movements, all participants ([Name 064], [Name 041], and [Name 078]) were in the country as of December 2, 2000. Likewise, it was weighed that for December 3, the date on which, according to [Name 064], he met with [Name 033] at his house, both were in the country (f. 16,130 and 16,131 recto); <b><i>viii)</i></b> two of the directors linked to these acts of corruption were appointed in the [Name 033] administration, namely, [Name 064] and [Name 068], who has already been sentenced through an abbreviated procedure. As for the third, [Name 022], although appointed in another administration, had a prior link with [Name 033] (f. 16,120 and 16,121 recto); <b><i>ix)</i></b> regarding the delivery and receipt of the gift (dádiva), it was [Name 064] who transferred the funds to [Name 033]. That is, [Name 058].

did not transfer money to the accounts of [Name 033] or to the accounts of natural or legal persons in his immediate circle, but rather transferred it to [Name 064] who, in turn, delivered it to [Name 033] under the terms described at folios 16.145 to 16151 of the judgment. **For this Chamber, hypothetically excluding the statement of [Name 064], the conviction imposed on [Name 033] is left without any evidentiary foundation whatsoever**. The statement of the cooperating accused is the only evidence to demonstrate that he shared with [Name 033] the promise that, according to him, [Name 041] and [Name 078] made to him. Without that account, it is impossible to confirm the appealed judgment insofar as it holds it as proven that the then [...] gave him the support he needed to accept the promise of financial reward, or that it was [Name 033] who determined the method of distributing the irregular profits delivered by [Name 058]. It is important to note that abundant evidence was introduced and examined in the trial that allows for the determination that funds originating from [Name 060] reached the hands of [Name 033] or those close to him; however, from this it cannot be inferred that [Name 033] participated in the acceptance of the promise of a gift under the terms described by [Name 064], or that the funds were associated with that promise. Note that [Name 058] never delivered money directly to [Name 033] or to natural or legal persons in his circle, but rather delivered it to [Name 064], who in turn transferred part of it to [Name 033]. Thus, without his “testimony” (and again clarifying that the word testimony is used in a non-technical sense, since the cooperating accused is not a witness in the strict sense because he does not offer his statement under oath), it cannot be asserted, as if it were a demonstrated fact, that there was a link between the then [...] and the mentioned company. Indeed, apart from the meeting between [Name 064] and [Name 033] that allegedly took place, [Name 033] did not carry out any action that would allow one to suggest, even as probable, his participation in the investigated facts. Neither the accusation nor the judgment attributes to him having contacted any member of the Board of Directors of ICE or any other public official for the purpose of influencing their decisions regarding the issue of the 400,000 lines. He was not even accused of maintaining contacts with the leaders of [Name 091] who were labeled as corrupters. **Therefore, the demonstration of the link between [Name 033] and the alleged promise of financial reward prior to the award of the mentioned contract depends exclusively on evidence that this appeals court has declared illicit**. At this point, it is necessary to clarify that the receipt by [Name 033] of some funds originating from [Name 060] (the only fact that can be demonstrated without the statement of [Name 064]), is not sufficient to confirm the judgment insofar as it considered him an instigator of the crime of aggravated corruption by improper bribery. Not only because without that evidence, it is impossible to ensure, *beyond a degree of probability*, that the promise of financial reward existed, but because likewise, other hypotheses that were not charged cannot be ruled out with certainty, namely, that the money was a gratuity for a completed act without a prior promise, or that it was the public officials who induced its payment. Furthermore, for other reasons that will be set forth below, when examining each of the money deliveries that the trial court held as accredited. **Regarding the first delivery** (for there were several more), proven fact number 96 states: “ *96) Without a precise date, but after January 6, 2002, and before February 18 of that same year, in accordance with the illicit distribution percentages established by the accused [Name 033], the defendant [Name 064] delivered to [Name 033] at the Presidential Office the sum of one hundred thirty thousand dollars ($130,000), by means of 7 bearer certificates of deposit from Banco Internacional de Costa Rica S.A., namely No. 19692 for an amount of one hundred thousand dollars ($100,000), No. 19693 for an amount of five thousand dollars ($5,000), No. 19694 for an amount of five thousand dollars ($5,000), No. 19695 for an amount of five thousand dollars ($5,000), No. 19696 for an amount of ($5,000), No. 19698 for an amount of five thousand dollars ($5,000), and No. 19699 for an amount of five thousand dollars ($5,000). The foregoing certificates were generated from the account of [Name 166]* *-mother of [Name 064]- and issued on December 14, 2001, maturing on February 14, 2002...” .* As can be observed, the certificates that [Name 064] delivered were generated from the account of his mother, [Name 166], **and not from the account of his wife, [Name 080], which was the one supplied with the funds from [Name 060]**. Although [Name 064] explained the foregoing in the trial, pointing out that the funds coming from [Name 060] were blocked or frozen and that is why he used his mother's account to pay [Name 033] (f. 16,165 front), by suppressing his statement it is impossible to determine with certainty both the reason for that first delivery, and the link of the funds to [Name 060]. It is important to note that while there is documentary evidence that allows demonstrating that the two hundred twenty-five thousand dollars ($225,000) that [Name 058] transferred on December 10, 2001, to the dollar account that [Name 064]'s wife had at Saint Georges Bank were frozen (cf. evidence No. 208, folio 28, which we have reviewed), this does not delegitimize what has been previously stated, since that documentation does not even permit suspicion that the $130,000 that [Name 064] delivered to [Name 033] between January and February 2002, has any relationship with the already mentioned $225,000, or at least, with [Name 060]. For this, it is insisted, the word of the cooperating accused is indispensable. **Regarding the second delivery of funds**, in the demonstrated facts it was affirmed: *“98) On May 20, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with money previously deposited by [Name 060], the defendant [Name 028], in accordance with the role assigned to him within the distribution of functions among the corrupters, partially canceled the sight investment No. 21200289108 for the sum of one hundred thousand dollars ($100,000) and constituted four investment certificates for twenty-five thousand dollars ($25,000) each, all to bearer and issued on May 20, 2002, numbers 2240020043928, 2240020043936, 2240020043901, 2240020043944 and the respective interest coupons for $64.58 each. The accused [Name 028] delivered these certificates to the co-defendant [Name 041] so that he, in turn, would deliver them to [Name 064] also as part of the promised illicit payment. 99) To achieve this end, without a precise date, but after May 20, 2002, [Name 064] went to the front of the offices of the company [Name 091] in Sabana Sur, and received from [Name 041] a yellow manila envelope containing the described certificates, and with them carried out the following financial movements: a. With the proceeds of certificates No. 2240020043901 and No. 2240020043944, including the accumulated interest from certificates No. 2240020043928 and No. 2240020043936, the cashier's check from Banco Cuscatlán No. 12847-3 dated June 26, 2002, for fifty thousand two hundred fifty-three dollars and thirty-two cents ($50,253.32) was purchased, which was deposited in the account of [Name 080] at Banco BCT S.A. on the 27th of that month and year. b. The proceeds of certificates No. 2240020043928 and No. 2240020043936, were reinvested on the orders of [Name 080]* *, according to the plans of [Name 064], in the investment certificate of Banco Cuscatlán No. 2241420000191 issued on June 26, 2002, to bearer, for the sum of fifty thousand dollars ($50,000). 100) On an undetermined date, but after June 26, 2002, in accordance with the distribution of the money agreed upon between them, [Name 064] delivered certificate No. 2241420000191 for fifty thousand dollars ($50,000) to the accused [Name 033]* *, who received it at his home. Before July 30 of that year, [Name 033]* *, in turn, delivered the referenced certificate to Mr. [Name 167] (who since 1994 had worked as the administrator of the companies linked to the defendant [Name 033]), and ordered him to make some payments. a) He canceled certificate No. 2241420000191 and requested from Banco Cuscatlán de Costa Rica S.A., the issuance of three cashier's checks drawn up on July 30, 2002, No. 14589-1 for fourteen thousand seven hundred fifty dollars ($14,750), No. 14590-1 for five thousand two hundred dollars ($5,200) and No. 14591-6 for seven thousand dollars ($7,000), in the name of [Name 291]* *; and withdrew in cash the sum of twenty-three thousand thirty-five dollars ($23,035). b) On July 31, 2002, with cashier's check No. 14589-1, he paid the debt pending at that time on the credit card in the name of the accused [Name 033]* *No. 4732981669923003 of Banco Interfin, for an amount of five thousand one hundred forty dollars and eight cents ($5,140.08). c) On July 31, 2002, with cashier's check No. 14590-1, [Name 167] paid the balance in colones of three hundred twenty-five thousand eight hundred four colones and fifteen céntimos (¢325,804.15) and in dollars of four thousand three hundred fifty-six cents ($4,300.56), both from the credit card of the accused [Name 033] No. [Value 014] of Banco Internacional de Costa Rica. d) With cashier's check No. 14591-6 for seven thousand dollars ($7,000) in the name of [Name 291], who has been the driver of the accused [Name 033] since March 1992, in compliance with the instructions of [Name 033], payroll, electricity, water, telephone, taxes, among other obligations of [Name 033]'s family were paid ...”*. As the *a quo* explained from folios 16,170 to 16,186 front, there is documentary evidence that allows demonstrating that [Name 080], wife of [Name 064], endorsed four investment certificates for $25,000 each, all to bearer, constituted with funds from the account of [Name 058], previously supplied with money originating from [Name 060]. Likewise, that the proceeds of two of those certificates were reinvested in investment certificate No. 2241420000191 of Banco Cuscatlán, also to bearer, for the sum of $50,000, which was endorsed by [Name 167], a person close to [Name 033] and who used part of the money to pay two credit cards in the name of [Name 033] and household expenses of the latter. Now, although we can reasonably maintain that [Name 033], through intermediaries - [Name 058], [Name 080] and then [Name 167] - incorporated funds from [Name 060] into his assets, **without the statement of [Name 064] it is impossible to ensure that those sums correspond to the payment or fulfillment of a promise of a gift that [Name 064] received** **with a specific content and purposes and that [Name 033] determined him to accept**. This same situation occurs with **the third delivery of funds**, examined from folios 16,186 front onwards and described in proven facts numbers 101 to 104: *“101) Without a precise date, but in the month of August 2002, the accused [Name 041] announced to [Name 064] a third payment of the promised gift. In order not to raise suspicions in the national financial system, [Name 064]* *asked him to make the deposit into two accounts, No. [Value 015]* *at Terrabank and No. [Value 016] at BCT International Bank (offshore of Banco BCT), in the name of [Name 080]. 102) On August 14, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with money previously deposited by [Name 091], the defendant [Name 028], in accordance with the role assigned to him within the distribution of functions among the corrupters, requested the Personal Banking Department of Banco Cuscatlán to transfer the sum of one hundred thousand dollars ($100,000) to account No. [Value 015] at Terrabank, and the sum of five hundred ninety thousand dollars ($590,000) into account [Value 055]* *of BCT Bank International to later transfer it to account No. [Value 016] of [Name 080]. These funds were formally credited on August 16, 2002, after applying the respective bank commissions. 103) On August 19, 2002, [Name 064], with the five hundred ninety thousand dollars ($590,000) mentioned in the previous fact, arranged for the issuance of investment certificate No. 25694 to 92 days term at BCT Bank International for the sum of three hundred thousand dollars ($300,000), which was liquidated early on October 28 of the current year and both the principal and the interest were credited again to account No. [Value 016]. That same date, [Name 064] requested the issuance of three investment certificates all to bearer, two for one hundred thousand dollars ($100,000) and one for seventy thousand dollars ($70,000), numbers 4523, 4522 and 4521 respectively and with a maturity date of January 28, 2003. 104) Without a precise date, but after October 28 and before November 27, 2002, in accordance with the plan and distribution of the gift, established by the accused [Name 033], the latter personally received from the defendant [Name 064] investment certificates No. 4521, No. 4522 and No. 4523 of Banco BCT S.A., and one hundred thousand dollars ($100,000) in cash. The defendant [Name 033] disposed of this money as follows: a) He delivered certificate 4521 for its sale to ACOBO S.A. together with the respective interest coupon on November 4, 2002. The following day, ACOBO registered the sale of said security for a total of seventy thousand forty-five dollars and thirty-five cents ($70,045.35), an amount credited to account No. [Value 017]* *of the wife of the accused [Name 033], [Name 169]. That same day, 20 participations of “[Name 171]” were acquired for the amount of one hundred one thousand seventy-eight dollars and seventy-eight cents ($101,078.78), which were partially covered with the indicated funds. Subsequently, on November 12, 2002, the sale of the 20 cited participations was managed to the company [Name 172]., in whose account the gentlemen [Name 173] and [Name 167], collaborators of the accused [Name 033], appear as authorized persons. Despite the fact that the judicial and extrajudicial representative of said company is Mr. [Name 175], son of [Name 033], the truth is that the latter maintains a real and direct link with its management. b) Between mid and late November 2002, the accused [Name 033] delivered certificates No. 4522 and No. 4523 to [Name 173]* *, a man of his trust, whom he instructed to deposit them at ACOBO along with the respective interest coupons, so that the brokerage firm would negotiate them to make them effective. Subsequently, the amount of the sale was credited to account No. [Value 019]* *of [Name 176] which, although formally represented by [Name 173] and [Name 167], the accused [Name 033] at that time maintained a real and direct link despite not legally appearing as its president or proxy. c) Finally, as a product of the liquidation of the certificates mentioned in the previous point, on December 2, 2002, check No. 5118-1 was drawn against the current account [Value 020]* *of ACOBO with Banco Interfin, for one hundred ninety-nine thousand seven hundred ninety dollars ($199,790), in favor of [Name 173], who on that same date deposited it into his current account No. [Value 021] at Banco San José, which at that time showed a balance of $248.75. d) In November of 2002, [Name 173]* *proposed to [Name 033] the possibility of participating as a capital partner of Mr. [Name 177]* *in an upper-middle-class housing project consisting of eighteen houses and six apartments, since the latter did not have enough money. [Name 033]* *agreed to invest in the project, entrusting [Name 173]* *to effect the investment with the proceeds of check No. 5118-1 from Banco Interfin mentioned above. Thus, [Name 173] disbursed money from December 2002 to July 2003 in favor of [Name 177] or in favor of the company [Name 180], a company represented by [Name 177]. To conceal the participation of [Name 033], the investment was made through a company owned by [Name 173] called [Name 182]., represented by [Name 187], who was the secretary of [Name 167] and a trusted person of [Name 173], and the latter in turn made a personal contribution to the project of fifteen thousand dollars ($15,000). To formalize the business, the following contracts were executed: i) Purchase option between [Name 183]* *representing the company [Name 184]* *., owner of the real property registered in the Province of Heredia, real property folio number [Value 022]* *and [Name 177], the total value of the sale being the sum of one hundred fifty-two thousand eight hundred twenty-five dollars and sixty-eight cents ($152,825.68). ii) Contract dated December 4, 2002, between the company [Name 180]* *. represented by [Name 177] and [Name 182]. represented by [Name 187], by which it was expressed that [Name 182]. was interested in participating in the housing project of the company [Name 180]., contributes the sum of one hundred fifty thousand dollars ($150,000) and due to the initial risk of the investment by [Name 182]* *., the acquired lots would be registered in its name. It was also stipulated that [Name 182]* *. would receive seventy-five thousand dollars ($75,000) in profits and the rest would go to the company [Name 180]. Subsequently, approximately three months later, it was increased by fifty thousand dollars ($50,000), leaving [Name 182]* *.'s total contribution at two hundred thousand dollars ($200,000). iii) Subsequently, another contract was entered into between [Name 177]* *and [Name 187]* *in her capacity as legal representative of [Name 182]* *., by which the former assigned to the latter the initial purchase-sale option with the company Servicios Casablanca, which operated automatically. iv) Likewise, on December 4, 2002, by public deed before notary public Alex Thompson Chacón, Ms. [Name 183], as president with powers as generalísima proxy of [Name 184], transferred to the company [Name 182]., represented in that act by Ms. [Name 187], the following properties all registered in the Province of Heredia: real folio No. [Value 023] with an area of 160.4 square meters; real folio No. [Value 024] with an area of 160.4 square meters; real folio No. [Value 025] with an area of 160.4 square meters; real folio No. [Value 026]* *with an area of 277.13 square meters; real folio No. 146,397-000, with an area of 166.50 square meters; real folio No. [Value 027] with an area of 180.77 square meters; real folio No. [Value 028] with an area of 160 square meters; real folio No. [Value 029]* *with an area of 160 square meters; real folio No. [Value 030] area of 160 square meters. The total price of the properties was set at the sum of eighty-six thousand seven hundred sixty-two dollars and forty-two cents ($86,762.42), also constituting a first-degree mortgage for the stated value over the referenced properties. v) The recovery from the sale of the properties began in March 2003 and entered accounts No. [Value 031]* *in the name of [Name 182]., No. [Value 032], No. [Value 033]* *and No. [Value 021]* *all in the name of [Name 173] at Bac San José. After several financial movements, from the money that entered the account of [Name 182], finally part of this money was received by the accused [Name 033], when credits in his favor were registered between September 8, 2003, and June 4, 2004, for a total of fifty-two thousand two hundred twenty dollars ($52,220). Likewise, in current account No. [Value 031]* *of [Name 182]* *., Mr. [Name 173] was credited a total sum of eighty-one thousand two hundred fifty ($81,250), and Mr. [Name 167] was credited the sum of seventy-nine thousand three hundred fifty dollars ($79,350) ...” .* In the case of this delivery, we have that after a series of transactions that are not relevant to recapitulate, investment certificates No. 4523, 4522 and 4521 were issued based on the resources from the account of [Name 080] at BCT Bank International, all to bearer, the first two for $100,000 and the last for $70,000, which after several transformations, ended up in the possession of legal entities linked in one way or another to [Name 033]. For the undersigned, although there is no doubt about the foregoing, since the trail of the money was meticulously reconstructed (cf. folios 16,186 to 16,221 front, volume XXXIII), this says nothing regarding the reasons by virtue of which [Name 033] received those funds, as this point can only be established through the account of [Name 064]. Furthermore, in this delivery there is also mention of $100,000 that, according to the cooperating accused, he delivered *in cash* and in relation to which there is no evidence beyond his own words, as the same court acknowledges at folio 16,220 front. **In the case of the fourth delivery** that has been held as proven, and which is examined from f. 16,221 to 16,231 front, it speaks of a check for $81,480 payable to [Name 189]., a company with which [Name 033] had a direct link. The *a quo* states in the demonstrated facts: “*105) On December 10, 2002, with the resources from account No. [Value 012] of [Name 058] at Banco Cuscatlán, supplied with money previously deposited by [Name 091], the defendant [Name 028], in accordance with the role assigned to him within the distribution of functions among the corrupters, delivered to [Name 064] the sum of one hundred eighty thousand dollars ($180,000), by means of a transfer to account No. [Value 016] of [Name 080] at BCT Bank International, less the deduction of the bank commission of $9.50. 106) With the resources just indicated, [Name 064] made an investment at a 31-day term maturing on January 10, 2003, for the sum of two hundred thousand dollars ($200,000). At the end of the term, the money re-entered his account and [Name 064]* *, in accordance with the prior orders given by the co-accused [Name 033], issued the directive to issue cashier's check No. 012342 from BCT Bank International for the sum of eighty-one thousand four hundred eighty dollars ($81,480) in favor of the company [Name 189]* *., with which he maintained a real and direct link. 107) Without a precise date, but after January 23, 2003, [Name 064] delivered the check to the accused [Name 033] at the house of the latter's parents-in-law. Then, on February 3, 2003, [Name 033] deposited that cashier's check No. 012342 at Riggs Bank N.A of Washington D.C., which was applied to account No. [Value 034] of the Company [Name 189], directly linked to the accused [Name 033]. The defendant [Name 033] subsequently admitted having received the amount of this check and two others -which will be described later- allegedly as a loan granted by [Name 064], to whom he made a request for payment, but [Name 064] rejected it due to the non-existence of such a loan, as the amounts came from funds from [Name 091]...” .* Without the statement of [Name 064], besides it being impossible to determine with certainty the cause of this transfer of funds, it is also impossible to rule out the defense's thesis, to the effect that these were part of a loan that [Name 064] made to the then [...].

The **fifth and final delivery**, described in proven fact number 111) and examined at folios 16.232 to 16.241 front, is for approximately $188,000, delivered as follows: two checks (one for $30,000 and another for $28,083) and $131,000 in cash. The *a quo* states: *"111) Around the month of September 2003, in fulfillment of the agreed plan and distribution, [Name 064] delivered one hundred thirty-one thousand dollars ($131,000) in cash to the accused [Name 033] at his mother-in-law's house. Likewise, following the instructions given by [Name 033], he prepared two checks in favor of [Name 169], which were drawn at the same time but were recorded with different dates, different sequences, and for two different amounts, with the purpose of avoiding suspicion within the financial system. In this way, [Name 064] drew check number 419 dated September 9, 2003, for an amount of thirty thousand dollars ($30,000.00) and check No. 425 for an amount of twenty-eight thousand eighty-three dollars ($28,083.00) dated September 25, 2003, both against checking account number [Value 056] of [Name 080] at Saint George Bank, in favor of [Name 169]. The accused [Name 033], upon prior endorsement by [Name 169], deposited the checks into the ACOBO account. Subsequently, the proceeds thereof were recorded by that brokerage firm as a credit to investment account No. [Value 017] in the name of [Name 169] and used in the purchase of 11 participations in a real estate fund for a total of fifty-five thousand nine hundred sixteen dollars and eighty-nine cents ($55,916.89), and for the remainder, a check was issued for two thousand one hundred fifty-two dollars and eighty-three cents ($2,152.83) in favor of Banco Interfin S.A. Subsequently, the charged [Name 033] admitted having received the amount of these two checks and another—already indicated—presumably as a loan granted by [Name 064], to whom he made a payment demand which was rejected by [Name 064] due to the non-existence of such credit, as these amounts came from funds from [Name 091]"* *"...”.* As has been indicated, a transfer of sums *in cash* has been taken as proven, whose sole evidentiary support is the declaration—illicit and implausible—of the collaborating accused, as well as a transfer of funds (the mentioned checks) regarding which, although there is documentary evidence, their reason for being is unknown, as it is impossible to establish with certainty, a matter that is essential if one seeks to convict [Name 033] for having instigated [Name 064] to accept a promise of economic retribution with a specific content and purposes. In summary, the declaration of [Name 064] is of an essential nature in the case of [Name 033]. Without it, it is not possible to take as proven that [Name 064] received a promise of economic retribution about which he informed [Name 033], with the latter giving him the necessary impetus to accept it, also defining the distribution percentages of the criminal profit that would be obtained (and which, furthermore, it bears adding, do not correspond to what was actually received by one and the other). For all the foregoing, it is appropriate to annul the judgment insofar as it declared [Name 033] the instigator of a crime of aggravated corruption by improper bribery committed by [Name 064]. That said, the question that must be asked is whether the proven facts that remain intact after suppressing the promise of a gift prior to the award of the 400,000 lines—and which is sustained, in turn, on illegal evidence—can be subsumed under any criminal type. The answer to this question is no. Although indeed, and except for the transfers of funds in cash, it is accredited that [Name 064] transferred funds to [Name 033] on various occasions, either directly or through individuals or legal entities close to him, neither were the characteristic elements of crimes other than aggravated corruption by improper bribery alleged nor taken as proven, a topic that acquires enormous importance in the case of [Name 033], as the only conduct attributed to him is *having determined* [Name 064] so that the latter, as the principal, would admit a promise of economic retribution in connection with the matter of the 400,000 lines, in exchange for carrying out specific actions in three areas (migration to GSM technology, public tenders or bidding processes, and a vote in favor of [Name 091]). Therefore, only by violating the principle of correlation between accusation and judgment and including circumstances not foreseen by the requesting body at the time, could [Name 033] be considered the principal of another crime, even one of a residual nature such as illicit enrichment. On the other hand, as was explained when examining the legal situation of the accused [Name 001], the criminal type of illicit enrichment foresees both the *admission* of gifts *presented* and the *admission* of gifts *offered*. In the first case, the presentation and material receipt of the retribution must occur during the performance of the office. In the second, both the offer and the admission must occur within the period already mentioned, it being inconsequential, as it is a subsequent unpunished act, that the public official obtains the patrimonial advantage once they leave the position that motivated the offer. In this matter, the typical conduct to be considered is the first, namely, the *admission of gifts presented*, as it was not possible to take as proven either the *promise* of economic retribution made to [Name 064] before the award (which constituted the basis of the crime of aggravated corruption by improper bribery), nor any other *offer* of undue advantage to [Name 033] (which, in any case, was not alleged). Having clarified this point, it is found that the conduct of [Name 033] described in the proven facts, which remain intact after the exercise of hypothetical suppression (and which consist of receiving the economic advantages that were delivered to him by [Name 064]), cannot be subsumed under section 346 subsection 3) of the Criminal Code applicable in this matter, **since with the exception of the seven certificates described in proven fact number 96, those receipts occurred after the accused ceased to be president of the country** (cfr. proven fact number 61 in relation to those already transcribed), thus they are atypical actions. Now, in the case of the seven bearer deposit certificates of Banco Internacional de Costa Rica S.A., although these were admitted during the exercise of the office, as foreseen by the criminal type, after the hypothetical exclusion of the testimony of [Name 064], it is impossible to ensure that these were presented to him *in consideration of his office*. The person who delivered the certificates was [Name 064], a person who, at that time, besides being a high-ranking public official, was someone very close to [Name 033]. Furthermore, the certificates were generated from the account of the collaborator's mother, Mrs. [Name 166], an account that had no link whatsoever with [Name 060]. Said thus, and at least as far as these certificates are concerned, there are no elements to establish that [Name 064] delivered them to [Name 033] for being the [...]. As Carlos Creus correctly points out when analyzing the type of admission of gifts in Argentine legislation, which is also partly similar to ours, it is essential to demonstrate that the gift delivered **was given in consideration of the recipient's office, which implies ruling out that it is not linked to a different circumstance, such as friendship or another relationship outside of that office** (CREUS, *op. cit.*, pp. 280-281), which is impossible in this matter, due to what has already been stated. Finally, as if what has already been said were not enough, it is found that the criminal action to prosecute the crime of illicit enrichment would be time-barred. In that sense, note that [Name 033] was questioned on October 15, 2004 (f. 552 a 558 front, volume II). The statute of limitations for the crime of illicit enrichment was 18 months (the foregoing because at that time the procedure was ordinary), thus we have that this period expired on April 15, 2006, a date by which neither had another cause for interruption of the computation of the period occurred, nor had the resolution declaring the case to be of complex processing become final (the latter occurred on June 23, 2006). That is, before the process changed its nature, a legal situation was consolidated in favor of [Name 033] which, as the Third Chamber itself admitted when ordering the remand, prevents applying the effects of Article 376, last paragraph, of the Criminal Procedure Code. In that sense, and assuming the risk of incurring in repetitions (since the topic was addressed when examining the cases of the co-accused [Name 001] and [Name 022]), the cassation body stated: *“Thus, it is clear that the validity of the reducing effect of the statute of limitations period as a result of the ordinary processing of the file, was always subject to the cause continuing to be processed as ordinary; instead, when the complex processing ruling was issued and became final, in the early stages of the process, the reducing condition of the limitation periods varied, pursuant to the cited section 376, **given that the only exception to that reasoning would have arisen in the event that the fatal limitation period had expired before that ruling was issued, since in that event the extinction of the criminal action by prescription would have occurred, turning that circumstance into a consolidated legal situation, to which the effects of the aforementioned Article 376 could not have been applied...**.”* (Resolution No. 1847-2014, Considerando IV, f. 176.427 reverse, volume XLIII, the underlining is not in the original). In summary, it follows that, even following the interpretation made by the Third Chamber regarding Article 376 of the Criminal Procedure Code, in the sense that the finality of the resolution declaring the procedure to be of complex processing suppressed the reducing effect of the limitation periods that took place before that finality, the truth is that by the date of that declaration ***there was already a consolidated legal situation in favor of [Name 033]*** ***that is not possible to ignore, as the statute of limitations period had elapsed**.* Likewise, the entry into force of Article 62 of Law No. 8422, called the Law against Corruption and Illicit Enrichment in Public Office, does not modify this conclusion, since [Name 033] appeared to give his investigative statement on October 15, 2004, that is, before the cited regulation was published (on October 29, 2004). As explained *supra*, the same cassation body, in resolution No. 2014-1847, specifically in Considerando IV.-, folios 176.429 a to 176.431 front, recognized that it is not possible to give retroactive effects to a subsequent procedural law, not only because in the case of procedural laws the one that must be applied *is the one in force at the time of performing the act*, but also because the Political Constitution in its Article 34 contemplates a general prohibition against applying laws retroactively to the detriment of any person. The Public Prosecutor's Office affirms that if the statute of limitations had not elapsed by the time the cited law entered into force, it is plausible to apply its effects to procedural acts performed earlier, since *“…the interrupting acts that occurred previously were not retroactively annulled—as the accused [Name 033] erroneously interprets—but rather the reduction of the pending terms was annulled, which were extended from that moment and for the complete term, according to the abstract penalty of each crime...”* (F. 176.933 front, volume XLIV). The undersigned respect but do not share these arguments. It can be said in different ways and denied that Article 34 of the Political Constitution is being violated; however, what is ultimately intended is that the effects of Article 62, in force as of October 29, 2004, affect an interrupting and reducing procedural act of the limitation period that took place before that date, namely, on October 15, 2004, taking away all value from the regulation under which that act occurred (namely, Article 33, first paragraph, of the Criminal Procedure Code). Furthermore, note that it is not extracted from Law No. 8422 that the legislator had contemplated applying the statute of limitations rules contained in section 62 in a manner different from that which applies to any procedural rule (understood, from its entry into force and prospectively). Finally, it is important to note that in resolution No. 1847-2004 cited by the Public Prosecutor's Office as the basis for its position (f. 176.934 front, second paragraph), the Third Chamber adopted the thesis contrary to the one that that procedural party presents, namely, that Law No. 8422 is applicable to procedural acts performed **as of October 29, 2004**, reason for which only in relation to the accused who were questioned after that date ([Name 018] and [Name 006]) did it argue that, once the interruption occurred, the statute of limitations period ran in full in the terms indicated by Article 62 subsection a) of the mentioned law. In summary, and since after the hypothetical exclusion process that has been carried out, the remaining evidence does not allow taking as proven that [Name 033] acted as an instigator in the crime of aggravated corruption in its modality of improper bribery committed by [Name 064], and having discarded the application of other residual criminal types to the proven facts that remain intact after the cited exclusion, the judgment is annulled insofar as it declared [Name 033] instigator of a crime of aggravated corruption by improper bribery committed by [Name 064] and, in application of the principle *in dubio pro reo* and for procedural economy, he is acquitted of all penalty and responsibility for that offense. As it is unnecessary, a ruling on the other claims formulated by him personally is omitted, as well as on the appeals filed by his defense attorney, lawyer Rafael Gairaud Salazar.

**6)** **[Name 041] and [Name 028]**: The tribunal took as proven that [Name 041] and [Name 028] committed three crimes of corruptor's penalty in relation to the crimes of aggravated corruption by improper bribery attributed to [Name 022], [Name 001], and [Name 064]. Additionally, [Name 041] was attributed one crime of corruptor's penalty in relation to the crime of aggravated corruption by improper bribery committed by [Name 068]. For the sake of order, the crimes understood to be committed by both accused will be analyzed first, and then that which was attributed only to [Name 041]. **6.a) *Crimes of corruptor's penalty in relation to [Name 001], [Name 022], and [Name 064]***: It was taken as proven that in December 2000, [Name 078] and [Name 041] promised [Name 064] a gift in exchange for him carrying out the necessary actions as director of the I.C.E., to promote the migration from TDMA technology to GSM, to prevent the bidding process for the 400,000 lines from being aborted, and finally, to vote in favor of awarding said tender to the company [Name 091] (proven fact number 87.-, folio 15,438 front, volume XXXII). In the case of [Name 022], it was taken as accredited that between late 2000 and early 2001, the accused [Name 041] and [Name 078] asked him to carry out the necessary actions within the scope of his duties as a Director of I.C.E. in support of the interests of [Name 091], primarily, to promote the migration from TDMA technology to GSM technology, to promote purchases through tenders and prevent them from being aborted, and that once the contracting process for the 400,000 lines was authorized, they asked him to vote in favor of awarding that tender to the company [Name 091], it being the case that in exchange for all the foregoing, they promised him the delivery of a gift, a promise that was accepted by [Name 022] (fact number 117, f. 15,451 front). Regarding [Name 001], the *a quo* took as proven that in the period between late 2000 and early 2001, the charged [Name 041] and [Name 078] asked him to carry out the necessary actions within the scope of his duties as advisor to the Executive Presidency of the I.C.E. and person in charge of executing the 400,000 lines project, to make said contracting effective by favoring [Name 091], and that in exchange for the foregoing, they promised him the delivery of a gift, a promise that was accepted by the public official. Likewise, it was agreed that the delivery of the money would be conditional on the effective award of the offer that [Name 091] would present to the I.C.E. (Fact No. 131, f. 15,455 front). As far as [Name 028] is concerned, in the judgment on the merits he was considered a co-perpetrator of the aforementioned facts, upon understanding that in the division of functions agreed upon with [Name 041] for the commission of the crimes, he had the task of receiving the funds from [Name 060] and transferring them to the corrupt public officials (proven fact number 56, f. 15,431 front). This chamber will not reiterate the arguments put forth by the *a quo* to take as proven that [Name 041], in collusion with other persons, formulated a promise of economic retribution to [Name 001], [Name 022], and [Name 064] prior to the award of the 400,000 lines contract, nor the reasoning that leads these appellate judges to conclude that the accreditation of that fact is unsustainable, since an extensive exposition on this has been made previously and to which the parties must refer. It suffices to underline as a starting point that, having hypothetically excluded the declaration of [Name 064], it is impossible to affirm *with certainty* that extreme point. While it can be assured that [Name 041] and [Name 028], through [Name 058], delivered significant sums of money to the cited persons, it can only be sustained *with a degree of probability* (insufficient to support a conviction) that those sums were intended to fulfill a prior promise, to the point that other equally plausible hypotheses cannot be ruled out either, for example, that they were retributions for a completed act (without prior promise, logically), or that it was the public officials who requested or demanded their payment. Now, discarding the promise of economic retribution not only prevents applying the criminal type of aggravated corruption by improper bribery in the case of the three mentioned public officials, but also prevents applying that of the corruptor's penalty contemplated in Article 345 of the Criminal Code in force at the time the investigated events occurred. This section stated: *“The penalties established in the five preceding articles are applicable **to whoever gives or permits** the public official a gift or undue advantage.”* As is extracted from its mere reading, this is a blank criminal law norm, which refers to other articles of the same Criminal Code to establish a subjective element additional to the intent, which must characterize the performance of the prohibited conduct, as well as the penalty to be imposed. The section prohibits *giving or permitting* a gift or undue advantage to a public official **with one of the purposes indicated in the five articles that precede it**. That is, regardless of the decision adopted by the public official in response to the corruptor's approach, in order to penalize the latter it is essential that their conduct be directed at seeking certain purposes that have been contemplated by the legislator in the provisions prior to the mentioned section 345. The complementary criminal type, as well as the sanction to be imposed, depend, then, on the purpose for which the gift is given or permitted. For example, if the corruptor gave it so that the public official would perform an act contrary to their duties, or to not do or to delay an act proper to their functions, the penalty that will correspond will be that of active bribery (cohecho propio), which ranges from two to six years of imprisonment and disqualification from holding public offices and employment for ten to fifteen years. If the corruptor gave it for an act performed or omitted by the public official in that capacity, without a prior promise having intervened, the penalty to be imposed will be the one previously set forth reduced by one third, as provided by the norm that contemplates the crime of acceptance of gifts for a fulfilled act. By the same token, if giving or permitting the economic retribution or undue advantage in the terms described in the crimes of active bribery (cohecho propio) or improper bribery (cohecho impropio) has as its purpose the granting of public positions, pensions, or the execution of contracts in which the administration to which the official belongs is interested, the corruptor's penalty will range between 1 and 5 years if the facts are those described in improper bribery and from 3 to 10 years in the case of active bribery. In summary, to sanction the corruptor it is essential to have demonstrated that they gave or permitted the gift with one of the purposes contemplated in the five articles prior to section 345 of the Criminal Code, which in this case is not plausible for the reasons set forth in previous sections and which can be reduced, at the risk of incurring in an excessive simplification of things, to the fact that without the declaration of [Name 064], from the analysis of the remaining evidence it is impossible to derive a judgment of certainty and not of probability, regarding the existence of the promise of a gift, its content, and the purposes it pursued. Once the illicit evidence has been hypothetically suppressed, it is not possible to ensure that [Name 041], in collusion with [Name 028], *promised* (conduct that, with an extremely questionable interpretation but endorsed by the Third Chamber, the *a quo* considered encompassed by the verb *give*) an economic advantage to various public officials, for them to perform acts proper to their functions with the purpose that [Name 091] would be favored with the 400,000 lines contract, a purpose that is precisely the one contemplated in the crime of aggravated corruption, which is one of the five articles that precede that of the corruptor's penalty and which in turn, expressly refers to the crime of improper bribery, in what is of interest here. Excluding the promise of retribution, what remains intact is that [Name 041], in common accord with [Name 028], transferred money from [Name 060] to [Name 001], [Name 022], and [Name 064]; however, this by itself does not constitute any crime. In the first place, it is not the corruptor's penalty because, as already explained, it is impossible to establish *with certainty* what the reason for the payments was. Even hypothetically admitting that the money delivered had some relation to the mobile telephone sphere, or even to the 400,000 lines contract, from the evidence examined only a *judgment of probability* is extracted that they were intended to fulfill a promise made before the award of that contract, in exchange for the public officials carrying out certain actions *proper* to their office that favored [Name 091], it being equally plausible to consider other hypotheses often mentioned, for example, that the funds were delivered as retribution for a completed act without prior promise, or that it was the officials who solicited or demanded their payment, hypotheses that, in any case, were not charged by the Public Prosecutor's Office. In sum, from the evidence that has been obtained and incorporated into the debate licitly, it is impossible to take as proven the promise of a gift that was alleged (that is, a promise in exchange for public officials carrying out future actions, proper to their office, to favor [Name 091] in obtaining the 400,000 lines contract) and, in that regard, the conviction imposed on [Name 041] and [Name 028] for the crime of corruptor's penalty for aggravated corruption by improper bribery is unsustainable. It should be added that this result would not vary even if the topic of the promise were set aside and emphasis were placed on the material delivery of the gifts, basically for two reasons, namely, *i)* because promising an economic retribution to certain public officials (and not delivering the gift to them after the award) is the only conduct that, *in the context of the proven and alleged facts*, can be subsumed under the crime of corruptor's penalty for aggravated corruption by improper bribery and, *ii)* because the corruptor's penalty is atypical in the case of illicit enrichment. Both arguments will be explored in depth below. As for the first, according to the legal text in force at the time the investigated events occurred, in the crime of the corruptor's penalty, the typical action consisted of *giving* or *permitting* gifts or undue advantages to a public official *with the purposes described in the "five preceding crimes,"* namely: *i)* corruption of judges; *ii)* offering or granting of a gift or retribution (repealed in 2008); *iii)* acceptance of gifts for a fulfilled act; *iv)* aggravated corruption (a criminal type that was the one applied by the trial court and whose typical description is integrated, by express provision of the legislator, with the criminal types of active and improper bribery, as appropriate); and finally, *v)* active bribery (cohecho propio). As observed, whether one speaks of the promise of a gift (as the trial court did when considering that the verb *promise* is encompassed by the verb *give*), or of the *material delivery of the retribution* (now, in full consonance with the verb *give* contemplated in Art.

<st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="345 C" w:st="on">345 C</st1:metricconverter>.P.), the penalty for the corruptor demands that the prohibited conduct be directed by one of the purposes described in the aforementioned criminal types and, in this case, it was neither charged nor deemed proven that the funds were delivered <i>before the award</i> to the public officials <u>in exchange for them performing acts (<i>future</i>) proper to their functions that were favorable to [Name 091] regarding the 400,000 lines (this is the purpose)</u>. What was indicated was that [Name 041] and [Name 028] <i>gave the gift after the award, to fulfill a prior promise that pursued the purposes already mentioned</i>. In other words, it is the promise of a gift and not its material delivery that is the conduct that complements the crime of penalty for the corruptor with the criminal type of aggravated corruption and improper bribery and, therefore, only in relation to this can the application of numeral 345 cited <i>supra</i> be considered. In line with the above, if that promise of a gift contemplated in the accusation cannot be deemed proven, the crime cannot be understood as configured, this despite the fact that a transfer of funds to some officials has been accredited. As for the second argument, it suffices to point out that the facts that remain unscathed after hypothetically suppressing the reference to the prior promise are atypical, even if one were to start from the premise that [Name 041] and [Name 028] presented the economic advantages to [Name 064], [Name 001], and [Name 022] <i>in consideration of their office and during the exercise of their position</i>, given that the penalty for the corruptor is only provided for in relation to the five articles preceding that crime <u>and illicit enrichment was not, at the date of the facts, nor is it now, part of that group</u>. The matter is so clear that the legislator placed illicit enrichment <i>after</i> the crime of penalty for the corruptor, whereby the latter, by alluding to the "previous articles," does not include it. In sum, having discarded, as it is impossible to prove without the illicit evidence, that [Name 041] in common agreement with [Name 028] directed promises of gifts to [Name 064], [Name 022], and [Name 001] so that they would perform acts proper to their functions, aimed at [Name 091] obtaining the contract for the 400,000 lines, and given that, moreover, after this exercise of hypothetical suppression that has been carried out, the facts that remain unscathed regarding [Name 041] and [Name 028] (which, in essence, are reduced to the material delivery of certain sums to the public officials) do not satisfy the requirements of any criminal type, the judgment is annulled insofar as it declared both defendants as jointly responsible co-perpetrators of three crimes of penalty for the corruptor for aggravated corruption in the modality of improper bribery, in real concurrence, in relation to [Name 022], [Name 001], and [Name 064] and, in their place, for procedural economy and in application of the principle <i>in dubio pro reo</i>, they are absolved of all penalty and responsibility for the aforementioned crimes. <b>6.b) <u>Crime of penalty for the corruptor attributed to [Name 041] in relation to [Name 068]</u></b>: The trial court also convicted [Name 041] as the responsible perpetrator of a crime of penalty for the corruptor for aggravated corruption in the modality of improper bribery, this committed by [Name 068]. The following will explain why, after the declaration of illegality of the opportunity criterion granted to [Name 064], it is impossible to deem that crime proven. The first thing to mention is that, according to the court's exposition in its majority vote, the promise of a gift to [Name 068] was formulated by [Name 105], in collusion with [Name 046]. For the <i>a quo</i>, [Name 041]'s relationship to this fact arises from his status as head of [Name 091] in the country and from having acted with [Name 105] (representative of [Name 114].) in the same way he did with [Name 028] (representative of [Name 058].), using those anonymous societies to sign consulting contracts that did not correspond to reality, with the purpose of bringing in the economic resources of [Name 060] that were later distributed among the public officials. From folios 15,767 and following of volume XXXII, the <i>a quo</i> concluded that a promise of a gift was directed to [Name 068] (for which responsibility must be attributed to [Name 041]), by virtue of the following: <b><i>i)</i></b> With evidence No. 747, it is determined that [Name 068] was pursued in a process for the crime of aggravated corruption in the modality of improper bribery, availing himself of an abbreviated procedure through which he was convicted (judgment No. 586-07 of 14:50 hours on October 16, 2007). The gift, as stated in that resolution, was promised through [Name 114]., whose representative, [Name 105], also submitted to an abbreviated procedure (judgment No. 260-09 of 14:15 hours on July 21, 2001). According to the court, these judgments have been considered <i>"…in relation to those who submitted to such procedures and solely with the type of crime for which they were convicted, the sanction, parties, and eventual reparations, or other merely referential data, without in any case assessing the proven facts and other content ..."</i> (F. 15,768 front). <b><i>ii) </i></b>The ideation of the criminal plan responded to several antecedents, one of special importance, namely, that [Name 091] was not considered by ICE in the field of mobile telephony, which led [Name 041] and [Name 078] to deem it necessary to channel monies proceeding from [Name 060] to grant gifts to public officials; <b><i>iii)</i></b> from the documentary evidence (namely, official letter No. 813 of January 23, 2001, from the Contraloría General de la República and the minutes of sessions No. 5271 and 5277 of the ICE Board of Directors), it is extracted that on January 23, 2001, the Contraloría General de la República authorized the abbreviated competitive procedure for the contracting of the 400,000 GSM technology cellular lines. Despite this, the Board of Directors unanimously authorized the direct contracting No. 108792 to expand the GSM mobile network to [Name 091], which satisfied its commercial interests and consequently facilitated its incursion into GSM technology. However, in the following session, [Name 068] requested that this decision be revoked, which did not prosper. This led to [Name 041] and [Name 078] glimpsing the necessity of recruiting this board member, as they did with [Name 064], [Name 191], and [Name 001] (f. 15,768 and 15,769 front); <b><i>iv)</i></b> to promise the gift to [Name 068], [Name 105] was used. The anonymous society [Name 114]. belongs to him, which originally represented [Name 060] in the country. Once [Name 091] was established, [Name 114]. remained within its facilities and offered them assistance in the technical area (f. 15,769 front); <b><i>v) </i></b>by reason of the good relationship with [Name 105] (of which several witnesses give account), and given that [Name 114]. appeared then as a consultant for [Name 292], a company that in turn represented [Name 060], simulated consulting contracts were signed, to generate the [Name 060] funds that were later delivered to public officials (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.770 a" w:st="on">15.770 a</st1:metricconverter> 15,772 front); <b><i>vi)</i></b> there is no direct proof of [Name 105]'s request to [Name 046] to facilitate the meeting with [Name 068]; however, [Name 046] had a prior bond with [Name 105] and had a trust relationship with [Name 068]. Likewise, [Name 046] performed lobbying tasks to approach public officials and, before the investigated facts, had done this work for [Name 091]. He also acted as intermediary in the payment of the gift that was made to [Name 068], with the additional fact that [Name 046] received a large sum from [Name 114]. for bringing [Name 105] and [Name 068] together and later transferred that gift to [Name 068], whereby <i>"…it reflects his knowledge that it was the gift paid to [Name 068] for his positive vote for [Name 091] on the 400,000 cellular lines and because [Name 068] and [Name 105] were sentenced for convergent crimes."</i> (F. 15,773 front). From this point, the judgment makes a more exhaustive examination of the outlined clues to demonstrate the promise of a gift, specifically, the link between [Name 046], [Name 105], [Name 114] ., [Name 060], and [Name 091] Costa Rica (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.773 a" w:st="on">15.773 a</st1:metricconverter> 15,775 front); the lobbying and canvassing tasks that [Name 046] had performed in the past before public officials for the benefit of [Name 091] (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.775 a" w:st="on">15.775 a</st1:metricconverter> 15,777 front); the link between [Name 068] and [Name 046] (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.777 a" w:st="on">15.777 a</st1:metricconverter> 15,781 front), a bond that also arose before the facts of interest here and that is evidenced by the handling given to the illicit profits and the meetings between [Name 105] and [Name 068] (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.781 a" w:st="on">15.781 a</st1:metricconverter> 15,783 front), encounters that according to [Name 193] took place on at least two occasions, in Coronado, the place where the company [Name 085]. is located, of which [Name 068] is president and judicial and extrajudicial representative. In addition, the resolution points out, although there is no proof that [Name 046] was present at these meetings, it is clear that it was he who put [Name 105] in contact with [Name 068] (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.781 a" w:st="on">15.781 a</st1:metricconverter> 15,783 front). The ruling also explains how [Name 068], as a member of the ICE board of directors, intervened in the vote of August 28, 2001, where the award was decided (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.783 a" w:st="on">15.783 a</st1:metricconverter> 15,784 front). For the court, a promise of a gift was directed to [Name 068] so that he would vote in favor of this award, and regarding the issue, it refers to what was set forth in relation to the plan devised by [Name 041] and [Name 078], to propose consulting contracts in favor of two companies that had performed commercial activities with [Name 060], one of them [Name 114]., whose manager is [Name 105]. These contracts were simulated, the company became a creditor of [Name 060], and then, with the resources received, the promised gift to [Name 068] was paid. The trial court adds that while to [Name 022] and [Name 064] the funds were transferred through [Name 058]. ([Name 028]), to [Name 068] they were delivered through [Name 114]. ([Name 105]), with a common purpose and a common trunk ([Name 041] and [Name 078]). Furthermore, the sums paid are similar. For the judges who signed the majority vote, the fact that [Name 068] was a director of ICE and that [Name 046] facilitated the meeting between him and [Name 105] before the vote in which the 400,000 lines were awarded, allows concluding that the gift was offered at that time in exchange for his affirmative vote. And it is that [Name 046] moves in this milieu and knows the directors, and this is also accounted for by his approach to [Name 064], to ask for his help with the amounts that [Name 091] owed him. In the same sense, the transfer of money via [Name 060] - [Name 114] - [Name 046] - [Name 068] demonstrates that the act that the latter executed was to receive a payment for an act proper to his functions and that, prior to this act, is when the promise of remuneration was made to him. Finally, it was affirmed that [Name 046] had knowledge that the money offered and delivered through him to [Name 068] was for having cast his favorable vote for the award of the 400,000 lines. To support this conclusion, the court alludes to how atypical the contract for the 400,000 lines was, not only for its amount but for the enormous demand that existed at that time. From the testimonial evidence (statements of [Name 128], [Name 195], and [Name 095]), it is drawn that it was a transcendental project in the history of ICE. This matter was known to [Name 046], not only because he moved within the field of telecommunications, but due to his relationship with [Name 105]. Furthermore, the matter was widely publicized. On this point, the court also highlights the statement of [Name 064]. He indicated that in the meeting at [Name 094], [Name 041] and [Name 078] spoke to him of the importance for [Name 091] that ICE migrate to open telephony schemes, that it use the tender as a method of technology acquisition, and that he vote in favor of the company, also because, as [Name 041] and [Name 078] told him, at a close date, [Name 046] had told them that he could influence that decision in a way detrimental to the interests of [Name 091], and had even announced that he would have the backing of the Executive Branch, a statement that for the court demonstrates [Name 046]'s knowledge of what [Name 091]'s priorities were (migration and tender process), as well as of the procedure defined at the beginning of 2001 by the Contraloría General de la República. It was also considered that, due to the closeness between the two, [Name 046] knew of [Name 068]'s position within ICE. That closeness was also evidenced by the way of receiving and disposing of the gift (specifically, [Name 068] requested a bank account from [Name 046] to receive part of the payments). Lastly, the reference to the condemnatory judgments issued against [Name 068] and [Name 105] and the admissions of charges made by both regarding the facts was reiterated (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.785 a" w:st="on">15.785 a</st1:metricconverter> 15,789 front). <b><i>vii)</i></b> Likewise, the <i>a quo</i> examined the consulting contracts signed by [Name 114]. with [Name 091], the monies delivered to [Name 068] through this means, as well as the profits obtained by [Name 046] and [Name 105] (f. <st1:metricconverter style="BACKGROUND-IMAGE: url(res://ietag.dll/#34/#1001); BACKGROUND-REPEAT: repeat-x; BACKGROUND-POSITION: left bottom" tabIndex="0" ProductID="15.789 a" w:st="on">15.789 a</st1:metricconverter> 15,828 front). Based on all of the foregoing, it convicted [Name 046] for the crime of penalty for the corruptor for aggravated corruption in its modality of improper bribery in relation to the facts attributed to [Name 068] (f. 15,833 front and following). <u>Now, regarding [Name 041]</u>, what the appealed ruling affirmed is that this defendant <i>acted in common agreement</i> with [Name 105] and [Name 046] to manage to approach [Name 068] and make the remuneratory offer. Furthermore, that [Name 041] was the common trunk between the distribution of gifts via [Name 058]. and via [Name 114]., such that he knew that the consulting contracts signed by [Name 105] were as simulated as those of [Name 058]. and that this mechanism is what had been implemented to provide resources to the illicit branch that would allow paying monies to [Name 068], counting on the contribution of [Name 046] regarding the indication of the accounts and other data that had to be coordinated for each delivery (f. 15,726 front, volume XXXII). <b><u>Having analyzed the previous reasonings, this chamber estimates that, after hypothetically excluding the "testimony" of [Name 064]</u></b> <b><u>, it is not possible to demonstrate with certainty that [Name 041] was a co-perpetrator of a remuneratory promise directed to [Name 068] by [Name 105]</u></b>. As has been indicated, this tribunal does not cast doubt on [Name 091]'s situation in the field of mobile telephony, the delivery to public officials of substantial sums (in similar quantities, besides) that occurred after the contract for the 400,000 GSM lines was awarded, the trust relationship between [Name 046] and the heads of [Name 091], and even the mechanism through which the funds that would later be distributed among the public officials entered (understood as, consulting contracts signed with [Name 058] . and [Name 114].). However, <i>it cannot be assured with certainty</i> that the sums that [Name 068] received <i><u>were to fulfill a promise - prior to the award - that [Name 105] directed to him in common agreement with [Name 041].</u></i> Although it can be taken as true that this last defendant distributed funds from [Name 060] among various public officials, regarding the promise and the purposes pursued with it, the fundamental proof is the statement of [Name 064], to the point that having hypothetically excluded it, it is not plausible to rule out other hypotheses, for example, that they are economic retributions granted for a completed act and without there having been a prior promise, that the public officials themselves induced that payment, or that a promise existing, it had a different content. See also that it was [Name 064] who in the debate spoke of the concern of [Name 041] and [Name 078] about what [Name 046] had in turn expressed to them, in the sense that regarding the granting of the 400,000-line contract, he could influence and harm [Name 091], an affirmation that the <i>a quo</i> used to understand the corruptors' interest in approaching the ICE directors before that contract was awarded. Even the role that the majority vote assigned to [Name 046] in this plot was established in large part thanks to what [Name 064] said, since - according to him - [Name 046] came to him for help in collecting monies from [Name 091] that were owed to him for his services. The weight that [Name 064]'s testimony bears is so clear that, in this section of the judgment, an appeal was made to the parallelism between his situation and that of [Name 068], affirming that they are two of the directors who received money from [Name 091] and who received promises of gifts, a conclusion reached because the former said so and because [Name 068] was sentenced for it. However, having hypothetically suppressed the statement of the collaborating defendant and keeping in mind that the condemnatory judgments of [Name 068] and [Name 105] have been issued within the framework of an abbreviated procedure, where the admission of charges has a formal character, <i>the possibility of establishing the promise of a gift with certainty and, <u>especially, of involving [Name 041] with that promise, vanishes</u></i>. Again, this chamber has no doubt that [Name 041] paid a series of public officials using two anonymous societies ([Name 114]. and [Name 058].). One can even suspect that those payments bore some relationship to [Name 091]'s incursion into the mobile telephony market; however, it is not possible to assure that those payments were made to fulfill promises of gifts formulated before the award of the contract for the 400,000 lines, in exchange for it being granted to [Name 091], especially when it is also possible to consider other alternatives, e.g., that they were economic retributions given for completed acts, without a prior promise (as [Name 064] had said), or that it was the public officials who demanded the payment, as [Name 041] himself indicated at some point (cf. in this regard, statement of [Name 116], analyzed in previous sections). To that extent and in application of the principle <i>in dubio pro reo</i>, the judgment is annulled insofar as it convicted [Name 041] for a crime of penalty for the corruptor for aggravated corruption in its modality of improper bribery, in relation to the facts attributed to [Name 068], and in its place, he is absolved of all penalty and responsibility for the cited crime. By reason of what has been set forth in this considerando and as it is unnecessary, a ruling is omitted regarding the other claims contained in the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, as well as those raised by attorney Mario Navarro Quirós, private defender of [Name 028], with the exception of the third ground he denominated “Erroneous and inadequate legal basis. Violation of due process and the right to defense due to erroneous application of Article 110 of the Criminal Code,” since this, being related to the confiscation of certain assets belonging to legal entities linked to [Name 028], demands a deeper analysis.

Regarding that ground, this office will rule further below.” Regarding the constitutionality of the cited Article 376, it must be clarified that the provision itself makes an important distinction between the various stages of the proceedings and the effects that a declaration of complex proceedings (tramitación compleja) produces on them, by expressly preventing the reduction of the statute of limitations (prescripción) periods by half for the investigation and intermediate stages. This action is due to the fact that these early stages require more time for the investigation that these complex crimes necessitate, and it is understood that an express prohibition applies to the trial phase. With respect to the reduction of the statute of limitations period in the early stages of the proceedings, as part of the questions before this Chamber, it must be understood that this declaration of complexity converges with some of the interrupting acts contained in Article 33 of the Criminal Procedure Code (Código Procesal Penal), such as the investigative statement (declaración indagatoria) or the summons to the preliminary hearing, as the case may be. This implies, in turn, that since these are acts proper to the initial and intermediate stages, they were considered by the legislator when giving effect to the cited provision 376. Therefore, even if they had already occurred as interrupters of the statute of limitations, the declaration of complex proceedings (trámite complejo) in itself, once final (firme), has a direct impact on the reduction of the statute of limitations period by half provided for in the cited provision 33, with the full period running. So much so that, in the case of pretrial detention, once complex proceedings are ordered, the periods are extended to eighteen months, having an immediate effect of extending the pretrial detention periods. On this matter, this Third Chamber, with the participation of Judges [Nombre8], [Nombre9], [Nombre10], [Nombre11], and [Nombre12], in ruling 2013-01758, at ten forty-five hours on December third, two thousand thirteen, regarding the declaration of complexity at trial, revisited the issue of the various effects contemplated in provision 376 of the Criminal Procedure Code, based on the procedural moment in which that declaration is presented, stating, in relevant part: "...The trial court declared the matter complex proceedings in the resolution summoning the parties to trial. The foregoing is important because a distinction must be made regarding the application of periods in cases declared complex proceedings, according to the procedural moment in which such a declaration is made. On this particular aspect, it is important to note that Article 376 of the Criminal Procedure Code establishes the possibility for the Court, on its own motion, or at the request of the Public Prosecutor's Office (Ministerio Público), to authorize, by reasoned resolution, the application of the procedure for complex proceedings matters when the case becomes difficult due to the multiplicity of acts, the high number of defendants, or any form of organized crime. A new paragraph was added to the cited provision through legal reform of October 30, 2001, published in La Gaceta number 27 of the following November 26, which stated that when said special procedure is ordered during the preparatory or intermediate phases, it directly affects the processing period of the case, specifically the peremptory period of the statute of limitations, in the sense that the reduction of the statute of limitations term by half, provided for in Article 33 idem (sic), will not apply. However, when the authorization for the application of the aforementioned procedure is carried out in the trial stage, the cited exception is not applicable, so in these cases, the prevailing statute of limitations term in the specific case is that established by the ordinary procedure, without affecting the interests of the defendant by being applied reduced by half..." (The emphasis is ours). In addition to the foregoing, it is also evident that, in accordance with Articles 148 and 444 of the Criminal Procedure Code, the declaration of complexity in the preparatory and intermediate stages will produce the legal effects mentioned above, as a general rule, from the moment the resolution becomes final (firme). This is important because it is from that date that the effects of the complex proceedings (trámite complejo) begin to be counted, and especially for determining the statute of limitations period, given that the rule is that it is not reduced, provided that the statute of limitations period reduced by half had not already elapsed before the declaration. Once the effects of the complex proceedings process are clear, it is necessary to examine the specific case to promptly determine the effects produced by the declaration of complexity on the processing of the case file (expediente), especially regarding the counting of the statute of limitations periods. Thus, if observed carefully, the request for complex proceedings made by the Public Prosecutor's Office was filed before the Criminal Court of the Criminal Jurisdiction of the Treasury and Public Function (Juzgado Penal de la Jurisdicción Penal de Hacienda y de la Función Pública) on February twenty-third, two thousand six, when the case file was still in the investigation stage, since by that date the accusation (acusación) and the request for trial opening had not been prepared (Cf. folios 7432-7495 of volume XVII of the case file). Indeed, the proceedings were resolved by the Criminal Court of the Second Judicial Circuit of San José (Juzgado Penal del Segundo Circuito Judicial de San José), by resolution at fifteen hours on March third, two thousand six (Cf. folios 7506-7566 of volume XVII), becoming final on June twenty-third, two thousand six, the date on which the appeals filed by the parties were declared without merit by the Criminal Trial Court of the Treasury (Tribunal Penal de Hacienda) (Cf. folios 7604-7610, [Telf3] of volume XVII of the case file). Regarding what was resolved by the aforementioned Criminal Court, it is evident that it weighed the scope of the complex proceedings procedure, since the ruling analyzed, on one hand, the enormous number of criminal acts investigated up to that procedural moment (Cf. folio 7560 of volume XVII of the case file) and, on the other, the multiplicity of investigated subjects—thirteen in total—as well as the fact that it was a matter of organized crime, which, due to the volume of evidence, entailed "...complications in the investigative work. The recognition of this singularity in the Costa Rican criminal legal system, which, it is worth noting, is far from prepared to confront criminal cases of dimensions such as those in the case in question, is the institute of Complex Proceedings, which seeks to mitigate that imbalance in relation to ordinary processes and prevent large-scale criminal phenomena, like the present one, from resulting in impunity; hence, in the present case, the ordering of this procedural institute becomes necessary in order to continue it and conclude it successfully..." (Cf. folio 7564 of volume XVII of the case file. The emphasis is ours). Therefore, based on that legal and factual assessment, that same jurisdictional body outlined in the operative part ("Por tanto") of that resolution the scope of the declaration of complex proceedings on the reduction of the statute of limitations period by half, by determining that: "...For the reasons set forth above, the procedure being appropriate in accordance with the provisions of Article 376 and following of the Criminal Procedure Code, COMPLEX PROCEEDINGS PROCEDURE IS HEREBY ORDERED in the present case. A period of one year is set to conclude the preparatory investigation. The reduction of the statute of limitations term by half, provided for in Article 33 ibidem (pursuant to the provisions (sic) of Law 8164 of October 30, 2001, published in La Gaceta Number 227 of November twenty-six, two thousand one), as well as the other procedural consequences established in Article 378 ibidem, shall not apply in the present matter..." (Cf. folios 7565-7566 of volume XVII. The emphasis is ours). This ruling was subsequently clarified at the request of the prosecutorial entity, insofar as the same Judge of the preparatory stage, regarding the scope of Article 378 of the Criminal Procedure Code, stated that: "...The representatives of the Public Prosecutor's Office being correct, and in order to avoid confusion, in accordance with Article 147 of the Criminal Procedure Code (sic), the resolution of this Office at fifteen hours on March three, two thousand six, is clarified, whereby 'AT THE REQUEST OF THE PUBLIC PROSECUTOR'S OFFICE, COMPLEX PROCEEDINGS PROCEDURE IS HEREBY ORDERED', seen at folios [Telf4], which does not imply a modification of what was resolved, so that in the last paragraph and in the 'POR TANTO', of the same, it is (sic) correctly read that in view of having ordered the Complex Proceedings Procedure in the present matter, the effects provided for in Article 378 of the Criminal Procedure Code shall apply. Therefore, it is also clarified that when the cited resolution states that a one-year period is set to conclude the investigation, it is referring to the provision under commentary, the foregoing, of course, in the event that proceedings are carried out in due course in accordance with the provisions (sic) of Article 171 ibidem..." (Cf. folios 7589-7590 of volume XVII of the case file. The highlighting is ours). In view of the two preceding textual citations, it is evident that from the investigation stage, the defendants and their defense counsels (defensas técnicas) knew the scope of the complex proceedings ruling in this particular case, its effects having been extensively developed by the Judge of the preparatory stage in the resolution in question, the same resolution that became final through ruling 403-06, at thirteen hours thirty minutes on June twenty-third, two thousand six, issued by the Criminal Trial Court, acting as the Court of Appeals, which declared without merit the appeals filed by the defense counsels of the accused [Nombre [Nombre7]], [Nombre [Nombre13]] (R.I.P.), and [Nombre [Nombre4]] (Cf. folios 7703-7707 of volume XVII of the case file). From this perspective, it is clear that both the defendants and their defense counsels were aware, from the issuance of the resolution at fifteen hours on March third, two thousand six, of the effects of the complex proceedings. However, the appeals were aimed at specifically questioning the declaration itself and not precisely its effects. In summary, although in this particular case, the first act interrupting the statute of limitations operated in accordance with subsection a) of Article 33 of the Criminal Procedure Code, namely, the reduction of the statute of limitations period by half at the time of taking the investigative statement of the majority of the accused in the year two thousand four, because the case was being processed as an ordinary proceeding, it is certain that once the case is declared complex, since the criminal action had not been extinguished for that reason, the statute of limitations period continues to run, without reduction, pursuant to the provisions of Article 376 in fine cited. Thus, it is clear that the validity of the reducing effect of the statute of limitations period as a result of the ordinary processing of the case file was always subject to the case continuing to be processed as ordinary. In contrast, when the complex proceedings were ordered and became final in the early stages of the process, the reducing condition of the statute of limitations periods changed, in accordance with the cited provision 376, given that the only exception to that reasoning would have occurred in the event that the fatal statute of limitations period had expired before that ruling, since in that case, the extinction of criminal action due to the statute of limitations would have occurred, that circumstance being taken as a consolidated legal situation to which the effects of the aforementioned Article 376 could not have been applied. Thus, the interpretation of eliminating the reducing effect of the statute of limitations period due to the occurrence of the investigative statement, contemplated in subsection a) of Article 33 of the Criminal Procedure Code, once the declaration of complex proceedings is final, does not in any way violate the principles of non-retroactivity of the law, nor can it be considered an infringement of the principle of legal certainty, since the effectiveness of the provision, by virtue of Article 129 of the Political Constitution, occurs from the effective date of the reform that added the last paragraph of Article 376 of the Criminal Procedure Code, through Law 8146, of October thirty, two thousand one, published in La Gaceta No. 227, of November twenty-six, two thousand one, and both the factual framework accused by the prosecutorial entity and the investigative statements of the defendants [Nombre [Nombre5]], [Nombre [Nombre1]], [[Nombre14]], [[Nombre15]], and [[Nombre16]] occurred in late two thousand four and early two thousand five, that is, when said law was undoubtedly in effect. Furthermore, the final declaration of complex proceedings, dated June twenty-third, two thousand six, was issued when no consolidated legal situation existed, nor had any of the charges against the various defendants prescribed, as can be deduced from the following table:

However, in the case of [Name [Nombre4]], the investigative statement (indagatoria) was taken on the same day Law 8422 came into effect, so the period was not reduced.

| [[Placa7] ] | Illicit enrichment (Enriquecimiento ilícito) (3 years). Reduction of the period by half: 18 months | March 7, 2005 | June 23, 2006 | September 7, 2006. However, in the case of [Name [Nombre2]], the investigative statement was taken when Law 8422 came into effect, so the period was not reduced. | September 10, 2007 | As can be observed, for none of the accused, namely, [Name [Nombre5]], [Name [Nombre1]], [Name [Nombre6]], [Name [Nombre3]], and [Name [Nombre7]], would the cause of action have prescribed at the time the declaration of complex proceedings (declaratoria de tramitación compleja) was filed, which is why one could not speak of a consolidated legal situation, given that between the investigative statement taken from each of them, on different dates in October of two thousand four, and the final declaration of complex proceedings, the period reduced by half as contemplated in Article 33 of the Code of Criminal Procedure (Código Procesal Penal) would not have elapsed, that is, thirty months for the crimes of improper bribery (cohecho impropio) in the modality of aggravated corruption; penalty of corrupter for aggravated corruption in the modality of improper bribery and instigation to the crime of aggravated corruption in the modality of improper bribery, and eighteen months for the crimes of illicit enrichment. On this matter, it is clear that the declaration of complex proceedings, final since June twenty-third, two thousand six, in accordance with Article 33 of the Code of Criminal Procedure, had the immediate effect of starting the period count from the investigative statement, but without the reduction contained in the aforementioned Article 33 cited above, but rather under the rules of Article 376 of the Code of Criminal Procedure, with separate mention needing to be made of the legal situation of the accused [[Nombre17] ] and [[Nombre18] ], insofar as these individuals were questioned after Law 8422 was already in effect, and therefore, by the principle of non-retroactivity of criminal procedural rules, its application corresponded from its entry into force on October 29, two thousand four. Certainly, as was studied in judgment 2014-01392, at nine thirty hours, on August fourteenth, two thousand fourteen, of this Third Chamber, in which contradictory precedents issued by this jurisdictional body and those issued both by the former Criminal Cassation Court and by the Appeals Court, both of the Second Judicial Circuit of San José, are unified, regarding the topic of the non-retroactive application of procedural rules in force, it presents as a normative basis, in the first place, "...section 34 of the Political Constitution, which literally states that: 'No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.' In this sense, only substantive laws have retroactive effects for the benefit of the accused, as established in Article 12 of the Penal Code, which states the following: 'Law subsequent to the commission of a punishable act. If after the commission of a punishable act a new law is enacted, the act shall be governed by the one most favorable to the defendant, in the particular case being tried.' Conversely, in our procedural regulations, no express provisions are established on the application of adjective laws over time. However, in the case of procedural laws, the one that applies is not the one most favorable to the accused, but the one in force. This has been defined in both jurisprudence and doctrine, which are also sources of law, because procedural rules obey criminal policy considerations and not a right of the defendant. Likewise, because during the time elapsed, legal situations are being consolidated, such as the passage of the criminal action in the present case, according to the acts that interrupt and suspend it, in accordance with the procedural laws in force, that is, the principle of legal certainty is safeguarded, and of course, it will also depend on the illegality being investigated..." (Third Chamber of the Supreme Court of Justice, Voto 2014-01392, at nine thirty hours, on August fourteenth, two thousand fourteen). As well as the constitutional jurisprudence issued in this regard, especially, Voto 0351-91, at sixteen hours, on February twelfth, nineteen ninety-one, cited in resolution 2014-01392 mentioned above, which, in pertinent part, states: "...it should be added in relation to article 34 of the Fundamental Charter, the following: In the case of a new procedural law, acts already performed, consolidated legal situations, as well as the effects that both generate during the effectiveness of the prior law, cannot be affected by a subsequent law..." (The underlining is ours). Likewise, in accordance with Voto 4397-99, at sixteen hours six minutes, on June eighth, nineteen ninety-nine, also from the Constitutional Chamber: "...public law laws that regulate formal and non-substantive aspects are of immediate application to all processes, including those underway (...) It must be understood, however, that in the case of a new procedural law, acts already performed, consolidated legal situations, and the effects that both generate during the effectiveness of the prior law, cannot be affected by a subsequent law (...) in procedural matters, the applicable rule normally (...) is the one in force at the time the respective act is carried out...". And finally, it also evacuated an optional judicial consultation of constitutionality, formulated by the Third Chamber, regarding the retroactive application or not of the provisions related to the statute of limitations, contained in the criminal procedural law, an opportunity in which it was argued: "...laws always govern towards the future, as this is the only way to conceive them as rules or norms of human conduct or behavior, and as an instrument to equate or equalize the treatment provided by the authorities. It is so, as in principle, rules cannot govern past acts if they were not in effect at the time of the event, given that the actor could not have adapted their conduct in accordance with them. However, past behavior can eventually be assessed with a rule enacted later, a judgment that is subject to a regulated power, that is, the retroactive application of a rule only proceeds by express mandate of the law, and when by doing so the constitutional precept established in its article 34 is not violated; that is, the retroactive application of the law proceeds only when by doing so no person, acquired patrimonial rights, or consolidated legal situations are affected, and on the contrary, the interested party benefits from this retroactive application (...) Since the process is a sequence of individual acts previously regulated by law, the new legislation can perfectly govern the acts carried out after its effectiveness, and the prior law governs the acts performed under its formal effectiveness, before its repeal, so that each act is assessed in accordance with the law in force at the time of its performance (...) In order to evacuate the consultation formulated by the Third Chamber regarding the application of the principle of the most favorable criminal rule to the statute of limitations rules for criminal action, it must first be defined what this consists of, and how national legislation is regulated. Several are the elements that must be noted regarding the statute of limitations for criminal action -already pointed out previously in constitutional jurisprudence-, which help to form an idea regarding this legal institute. First, that the regulation of the statute of limitations for criminal action is a matter of criminal policy adopted by the State through the competent body for this, that is, the Legislative Assembly, such that it has the authority to establish the parameters for its regulation. Second, that there is no constitutional right to the statute of limitations, but rather the right to legal certainty, to legality, to effective judicial protection, and to equality, principles that are not injured by the State as long as the time limits set for the reporting, investigation, and prosecution of crimes established by the legislator are reasonable and are defined and limited by law. Third, that the statute of limitations is a legal instrument created for the purpose of declining the exercise of the State's punitive power, which acts as a procedural sanction for the inactivity of the procedural parties in processes initiated or not (...) the rules of the statute of limitations for criminal action are of an eminently procedural nature for two important reasons; firstly, because its regulation is located in the Code of Criminal Procedure, a codification that has an eminently instrumental character with regard to the application of substantive law, as indicated previously; and secondly, because by itself, the statute of limitations implies a limit on the State's punitive power, which is applied as a (procedural) sanction as a consequence of procedural inactivity within a certain period, as analyzed, having as a consequence that it entails an extinction of the criminal action, which is also an institute of a procedural nature, located in the Code of Criminal Procedure (...) Regarding the principle of the application of the most favorable rule, it is important to reiterate that it is an integral element of due process, and that therefore it has constitutional rank, as this Constitutional Court has repeatedly indicated (among others, see judgment number 0821-98, at sixteen hours fifty-one minutes, on February tenth, nineteen ninety-eight). However, it must be clarified that this principle is exclusively applicable to substantive law, and referred only to the defendant, as regulated in international human rights treaties, specifically in Article 15.1 of the International Covenant on Civil and Political Rights (...) First: If the principle of the most favorable criminal rule is exclusively applicable to substantive law, consequently, it cannot be applied to the statute of limitations rules for criminal action. In this way, it is appropriate to apply the statute of limitations rules based on the procedural system under which it is governed, as provided in Transitional Provisions I. and II. of the Code of Criminal Procedure, provisions which are also of a procedural nature par excellence. Second: Each procedural regime must remain intact and indivisible, because the legislator's policy in establishing a legal view of human events seeks uniformity, coherence, and systematicity of the institute, to achieve the ends proposed by the ordinary legislator..." (Constitutional Chamber of the Supreme Court of Justice, Voto 4397-99, at sixteen hours six minutes, on June eighth, nineteen ninety-nine, also from the Constitutional Chamber. The underlining is ours). Now, in the specific case, it must be noted that for the accused [Name [Nombre4]] and [Name [Nombre2]], for having been questioned on November thirtieth, two thousand four, for the first (Cf. f. 1166 of volume III of the expediente) and March seventh, two thousand five, for the second (Cf. f. 1984 of volume IV of the expediente), the three-year prescriptive period, according to Article 62 of Law 8422, was not reduced by half, but was fully counted until the next interrupting act, due to the effectiveness of a procedural law, which means there is one more reason not to consider the prescriptive period as having elapsed. Ultimately, as the non-application of Article 376 of the Code of Criminal Procedure is presented for the defendants [Name [Nombre1]], [Name [Nombre3]], [Name [Nombre5]], [Name [Nombre6]] and [Name [Nombre7]], as well as the erroneous application of Article 62 for the co-defendants [Name [Nombre2]] and [Name [Nombre4]], the challenge by the Public Prosecutor's Office is granted and the acquittal judgment for the statute of limitations of the criminal action [Telf2], issued in the records by the Criminal Sentence Appeals Court, is annulled, decreeing the remand for a new substantiation as corresponds in law, this Chamber clearly establishing that, in this cause, the criminal action is not time-barred." (The highlights are from the original). From the foregoing, it follows that the Third Chamber, on the occasion of the appeal filed by the Public Prosecutor's Office, decided on the matter submitted for examination by the defender of [[Nombre18] ], concluding that the criminal action had not prescribed, this because: 1) The declaration of complex proceedings suppressed the reducing effects of the statute of limitations period associated with the procedural acts that interrupted its calculation during the ordinary procedure. 2) The procedural acts that interrupt the statute of limitations period and that have been carried out after the entry into force of Article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, are not accompanied by the reduction of the period by half. Likewise, as follows from the last lines of the transcribed considering, the cassation body ordered that the ordered remand must start from that premise (it is understood, that the criminal action is not time-barred). We are talking about a decision that limits our competence, not only because it was adopted for the specific case, but because in proper appellate technique, it is the reviewing body that establishes the scope of the remand it orders. Therefore, since the claim filed by Licentiate [Name19] was definitively resolved in cassation, it must be declared without merit. Notwithstanding the foregoing, this Chamber permits itself to indicate that indeed, in the case of the defendant [[Nombre18] ], the criminal action is not time-barred, since regardless of the interpretation that can be made of the last paragraph of Article 376 of the C.P.P., the truth is that this defendant was questioned when Article 62 of Law No. 8422 was in effect, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, which provides: "Statute of limitations for criminal liability. The criminal action for crimes against the duties of public office 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 periods set forth in Article 31 of the Code of Criminal Procedure shall run again for a new period, without any reduction whatsoever. 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 occurs in judicial or administrative channels." (The highlight is not from the original). As explained in previous sections, from subsection a) of the rule, it is inferred that in the case of crimes against the duties of public office and those provided for in Law No. 8422, upon the occurrence of any of the acts indicated by the Code of Criminal Procedure as interrupters of the calculation of the statute of limitations period, the count begins to run again in full form, which constitutes an exception to Article 33 of the recently mentioned Code. This is an article applicable to procedural acts carried out as of its entry into force, that is, whether they take place within a new procedure or one that was already underway, the foregoing insofar as the rules of prescription, according to the Constitutional Chamber, are of an instrumental nature (in a similar sense, cf. resolutions numbers [Telf5]; 4397-99 and 351-1991, all from the Constitutional Chamber). Having said this, note that the a quo convicted [Name [Nombre2]] for a crime of illicit enrichment, provided for and sanctioned in Article 346 subsection 3) of the Penal Code with a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years (art. 31 subsection a) C.P.P.). Now, this defendant appeared to give an investigative statement on March 7, 2005 (f. 1984 to 1986 front, volume VI), a date on which the calculation of the period was interrupted, which, due to Article 62 in force at that time, began to run again and for the same period of three years, without any reduction, until March 7, 2008, a date by which another interrupting act had already taken place, namely, the resolution that convened the preliminary hearing -September 10, 2007, f. 8,452 front, volume XX-. As of that day, the period ran again without any reduction, until September 10, 2010, a date by which it had been interrupted again, through the setting of a trial date. After this, the judgment by the trial court was issued (No. 167-2011 of April 27, 2011) and subsequently, the judgment of this court, with another integration (No. [Telf2] of December 21, 2012) and the cassation judgment (No. [Telf6], at 11:20 hours on November 21, 2014) were issued, procedural acts that, according to Article 33 of the Code of Criminal Procedure, also interrupt the calculation of the statute of limitations period. In sum, we agree with the Third Chamber in that it concluded that in the case of [Name [Nombre2]], the criminal action has not prescribed, as the period for this to happen has not elapsed without a new ground for interruption having operated beforehand. For all the foregoing reasons, the ground for appeal is rejected. […] XXVI.- This ground for appeal is declared without merit. As we explained from the first considerings of this resolution, the issue of the statute of limitations was expressly settled by the Third Chamber, concluding that the criminal action has not prescribed in the particular case of [[Nombre17] ] and that the ordered remand must start from that basis. This is a decision that in any case, this Chamber shares, understanding that at the time [[Nombre17] ] was questioned (namely, November 30, 2004), Article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, was already in force, according to which, with the interrupting act, the calculation of the statute of limitations period started again in full form, without any reduction. The appellant says that the cited law cannot be applied to causes that, like the present one, were already underway as of October 29, 2004. This is a position that is not acceptable, since in the case of rules of a procedural or instrumental nature (and the Constitutional Chamber has said that the statute of limitations rules have that character), these govern immediately and prospectively, whereby it will suffice for the procedural act provided for in those rules to be carried out during their effectiveness for their effects to be applied, regardless of whether the procedure within which that act takes place was already underway. It is important to note that what is prohibited by art. 34 of the Political Constitution is that rules have effects retroactively to the detriment of any person, and not that they do so as of their entry into force and prospectively, as is the case here. In summary, if procedural acts, at least as a thesis of principle, are governed by the regulations in force at the time of their performance, the investigative statements made after October 29, 2004, among them that of the defendant [[Nombre17] ], are subject to the provisions of the mentioned Article 62. In line with the foregoing, this Chamber concluded in Considerando VI.-, to which the appellant must refer, that in the case of the defendants who gave an investigative statement before this date ([Name [Nombre7]], [Name [Nombre1]] and [Name [Nombre5]]), the reducing effect of the statute of limitations period that art. 33 subsection a) C.P.P. associates with that procedural act cannot be suppressed by invoking the cited numeral 62, since this was not in effect by then and it is not appropriate to apply it retroactively, pretending that its effects be associated with procedural acts carried out under the protection of and with the consequences provided for in a different regulation.

For these reasons, the ground is dismissed.”</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"><span>&#xa0;</span></p></div></body></html>" }, "previousdocs": [], "nextdocs": [] }, { "doc": { "redactor": "Patricia Vargas González", "numeroDocumentoPadre": "sen-1-0034-675861", "anno": "2015", "expediente": "040068350647PE", "hora": "16:10", "esProtegida": "1", "esCambioCriterio": "0", "TemasYSubtemas": [ { "id": 1, "nombre": "Enriquecimiento ilícito", "Subtemas": [ { "id": 3, "nombre": "Motivo o propósito por el cual se presentaron las dádivas no constituyen elementos del tipo" }, { "id": 2, "nombre": "Análisis comparativo e inexistencia de derogatoria entre los tipos establecidos en la Ley sobre Enriquecimiento Ilícito de los Servidores Públicos y el Código Penal" }, { "id": 1, "nombre": "Tipo genérico que no tiene requisitos subjetivos distintos del dolo" } ] } ], "normasNombreYArticulo": [ "Código Penal||353", "Ley sobre el Enriquecimiento Ilícito de los Servidores Públicos||26" ], "esNotaSeparada": "0", "esVotoSalvado": "0", "modified": "2026-05-09 19:41:49.347", "normasNumeroYArticulo": [ "5027||24130", "7336||43614" ], "id": "ext-1-0034-158452", "numeroDocumento": "01620", "esResolucionClave": "0", "restrictores": [ "Tipo genérico que no tiene requisitos subjetivos distintos del dolo", "Motivo o propósito por el cual se presentaron las dádivas no constituyen elementos del tipo", "Análisis comparativo e inexistencia de derogatoria entre los tipos establecidos en la Ley sobre Enriquecimiento Ilícito de los Servidores Públicos y el Código Penal" ], "claseAsunto": "Recurso de apelación", "tipoTexto": "1", "enteSistematizador": "CENTRO DE INFORMACIÓN JURISPRUDENCIAL", "descriptores": "Enriquecimiento ilícito", "rutaTesauro": [ "CENTRO DE INFORMACION JURISPRUDENCIAL", "CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Penal", "CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Penal||Delitos", "CENTRO DE INFORMACION JURISPRUDENCIAL||Derecho Penal||Delitos||Enriquecimiento ilícito" ], "subNumeroDocumento": "1", "contenidosInteresOrden": "3", "ramaDerecho": "Derecho Penal", "despachoOrden": "42", "despacho": "Tribunal de Apelación de Sentencia Penal II Circuito Judicial de San José", "normas": [ { "norm_nom": "Código Penal", "art_subnum": "0", "norm_inciso": "3", "norm_anno": "1970", "norm_num": "4573", "norm_ver": "98548", "norm_detalle": "Inciso 3", "norm_fecha": "04 May 1970", "norm_id": "5027", "bdt": "1", "tipo_norma": "Ley", "art_id": "24130", "art_num": "353" }, { "norm_nom": "Ley sobre el Enriquecimiento Ilícito de los Servidores Públicos", "bdt": "1", "art_subnum": "0", "tipo_norma": "Ley", "art_id": "43614", "norm_anno": "1983", "norm_num": "6872", "norm_ver": "7863", "norm_fecha": "17 Jun 1983", "norm_id": "7336", "art_num": "26" } ], "esResolucionEstructural": "0", "esResolucionOral": "0", "esResolucionRelevante": "0", "fecha": "2015-12-02", "tipoDocumento": "EXT", "esCriterioUnificador": "0", "tipoContenido": "Voto de mayoría", "sourceName": "Documentos", "formatoDocumento": "ESCRITO", "tipoResolucion": "De Fondo", "tipoInformacion": "Resolución Judicial", "normasNacionales": [ "norm_id::5027||norm_num::4573||norm_nom::Código Penal||art_id::24130||art_num::353||bdt::1||norm_fecha::04 May 1970||tipo_norma::Ley||norm_ver::98548||norm_detalle::Inciso 3||norm_obser::||art_subnum::0", "norm_id::7336||norm_num::6872||norm_nom::Ley sobre el Enriquecimiento Ilícito de los Servidores Públicos||art_id::43614||art_num::26||bdt::1||norm_fecha::17 Jun 1983||tipo_norma::Ley||norm_ver::7863||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; font-weight:bold\">“VIII </span><span style=\"font-family:Arial\">[…]</span><span style=\"font-family:Arial; font-weight:bold\"> </span><span style=\"font-family:Arial\">Por otra parte, es importante reiterar que el enriquecimiento ilícito es un tipo penal genérico o residual frente a figuras más complejas. A diferencia de lo que sucede con otros tipos penales, donde se prevé como elemento subjetivo adicional al dolo, un propósito específico que guía al funcionario público al recibir la dádiva o la promesa de esta y que es el mismo que dirige la actuación de quien, de manera convergente, presenta la retribución o la promete (p. ej., la aceptación de dádivas por un acto cumplido, en relación con la penalidad del corruptor), en el tipo penal del enriquecimiento ilícito el legislador contempló la simple admisión de retribuciones económicas que fueron </span><span style=\"font-family:Arial; font-style:italic\">presentadas</span><span style=\"font-family:Arial\"> u </span><span style=\"font-family:Arial; font-style:italic\">ofrecidas</span><span style=\"font-family:Arial\"> al funcionario público en consideración a su oficio y durante el ejercicio del cargo que motivó esa presentación u ofrecimiento, sin que sea necesario demostrar, </span><span style=\"font-family:Arial; text-decoration:underline\">porque no lo demanda el tipo penal</span><span style=\"font-family:Arial\">, esa finalidad adicional que complementa el dolo. A modo de ejemplo, para sancionar el enriquecimiento ilícito no es necesario demostrar que la dádiva se recibió como retribución por un acto cumplido por el funcionario público y sin que hubiese promesa anterior, propósito que sí se prevé como un elemento especializante, en el tipo penal de aceptación de dádivas por un acto cumplido. Por eso, no le asiste razón al defensor al sostener que para que se configure este delito es indispensable que se hayan demostrado o bien, descartado de forma categórica, los elementos subjetivos que enlista y que son propios de tipos penales tienen una relación de género a especie con el enriquecimiento ilícito, donde este último es la norma genérica o residual, elementos que además, cabe decir, no fueron imputados en relación con [[Nombre1]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">]. Por todo lo anterior, se declaran sin lugar los reproches.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> […] </span><span style=\"font-family:Arial; font-weight:bold\">XII.- No lleva razón la defensa</span><span style=\"font-family:Arial\">. En cuanto a los alegatos relacionados con la falta de correlación entre acusación y sentencia y la inclusión en los hechos acusados por el órgano requirente, de los elementos típicos del delito enriquecimiento ilícito, el recurrente debe estarse a lo indicado en el considerando VIII.- de esta resolución. Tal y como se explicó entonces, esos temas fueron conocidos y resueltos por la Sala Tercera, rechazando los alegatos que en esa dirección planteó el licenciado [Nombre2] . Sobre el motivo o propósito por el cual se presentaron las dádivas a [[Nombre1]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">], a saber, si eran por ejemplo, a cambio de que este realizara un acto propio de sus funciones o uno contrario a sus deberes, o para no hacer o retardar un acto propio de sus funciones, o si fue como retribución por un acto cumplido sin promesa anterior, basta reiterar que esos propósitos no forman parte del tipo penal aplicado, con lo cual es intrascendente que esa finalidad no se hayan podido demostrar o descartar categóricamente. De hecho, si esta posibilidad se hubiese vislumbrado, es probable que a [[Nombre1]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">] no se le hubiese imputado un delito residual sino cualquier otro que regulase de manera especial y precisa el tema. A modo de ejemplo, en el cohecho propio, el funcionario público que admite la dádiva o su promesa sabe que la misma está dirigida a que él haga un acto contrario a sus deberes, o a que no haga o retarde un acto propio de sus funciones. Con independencia de que esos actos se realicen, lo importante es que la actuación del funcionario está teñida por este propósito, como lo está también la conducta de quien entrega la ventaja patrimonial o la promete. Lo mismo sucede en otros tipos penales, por ejemplo, la aceptación de dádivas por un acto cumplido, o la corrupción agravada. Se trata de tipos penales especiales frente al enriquecimiento ilícito, donde la configuración de alguno de los primeros puede suponer o comprender la realización del segundo, pero no a la inversa. Tratándose del artículo 346 inciso 3) del Código Penal, basta con que el funcionario público admita la dádiva que </span><span style=\"font-family:Arial; font-style:italic\">le fue presentada u ofrecida en consideración a su oficio mientras permanece en el ejercicio del cargo</span><span style=\"font-family:Arial\">, lo que se ha tenido por demostrado aquí, pues según se extrae de la relación de hechos probados, [Nombre [Nombre3]], en su condición de subjefe de la Dirección del Departamento de Conmutación del ICE y mientras permaneció en el cargo, aceptó dineros provenientes de [Nombre [Nombre4]] que le fueron trasladados a través de [Nombre [Nombre5]]. Se reitera, la búsqueda de otros propósitos adicionales no es elemento subjetivo adicional al dolo que esté contemplado en este tipo penal, con lo cual es intrascendente que no haya prueba al respecto. Por lo antes expuesto, se declara sin lugar el motivo. […]</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">XXX.- Los reproches deben acogerse parcialmente, en los términos y con las consecuencias que se dirán</span><span style=\"font-family:Arial\">. Con el propósito de lograr una mayor claridad expositiva, se hace necesario reproducir algunos de los hechos acusados por el órgano requirente y aquellos que el tribunal tuvo por demostrados en relación con [Nombre [Nombre6]]: </span><span style=\"font-family:Arial; font-style:italic\">“…220) Fue así que entre los meses de julio y agosto de 2000, el imputado [Nombre [Nombre6]] y [Nombre [Nombre7]] mantuvieron reuniones con el encartado [Nombre [Nombre8]] y el indiciado [Nombre [Nombre9]], en las cuales se continuó tratando el tema de la falta de apertura por parte del I.C.E a las licitaciones públicas en materia de la telefonía celular. En uno de estos encuentros el imputado [Nombre [Nombre8]] y el indiciado [Nombre [Nombre9]], </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">le ofrecieron</span><span style=\"font-family:Arial; font-style:italic\"> al imputado [Nombre [Nombre6]] en consideración a su oficio, la entrega de una dádiva consistente en dinero si se lograba la apertura a las licitaciones públicas en el I.C.E, equivalente a un 0.5 % del contrato que se obtuviera. 221) En virtud de lo anterior, el acusado [Nombre [Nombre6]] </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">muestra su anuencia al ofrecimiento de la dádiva</span><span style=\"font-family:Arial; font-style:italic\"> y decidió compartirla, con [Nombre [Nombre7]], por haber logrado el contacto con los corruptores. 222) Tal como había sido acordado, una vez que se logró la adjudicación de la licitación pública abreviada a favor de [Nombre [Nombre4]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, el acusado [Nombre [Nombre8]] de común acuerdo con el indiciado [Nombre [Nombre9]] </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">iniciaron la entrega en forma fraccionada de la dádiva que había sido prometida al coimputado [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">en consideración a su oficio</span><span style=\"font-family:Arial; font-style:italic\">. 223) Para ello, utilizaron la modalidad de pago empleada con otros de los imputados funcionarios del I.C.E, canalizando los fondos a través del acusado [Nombre [Nombre10]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">y su empresa [Nombre [Nombre5]]. 224) De tal forma, en fecha 10 de diciembre de 2001 el acusado [Nombre [Nombre10]], conforme al plan que previamente había trazado con el indiciado [Nombre [Nombre9]] y el acusado [Nombre [Nombre8]], del dinero previamente transferido por la empresa [Nombre [Nombre4]], giró el cheque Nº 301 por setecientos cincuenta y cinco mil ciento veintitrés dólares ($755.123) contra la cuenta de [Nombre [Nombre5]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. en el Cuscatlán International Bank y en fecha 10 de diciembre de 2001, adquirió con esa suma, una serie de certificados de inversión al portador con el Banco Cuscatlán de Costa Rica, entre los que se encontraban los Nºs [Identificacion1], [Identificacion2] y [Identificacion3] cada uno por la suma de diez mil dólares ($10.000), y giró instrucciones al ente financiero para que los títulos fueran depositados en la cuenta Nº [Valor [Nombre4]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">a nombre de BSJ International Bank con el Banco San [Nombre11]. [Nombre12]) </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">En fecha 15 de enero de 2002, el acusado [Nombre [Nombre6]], mientras permanecía en el ejercicio del cargo de diputado, admitió la dádiva que le fue presentada en consideración a su oficio al recibir en el BAC San [Nombre11] los tres certificados anteriores</span><span style=\"font-family:Arial; font-style:italic\">, que sumaron treinta mil dólares ($30.000). En esa misma fecha inició el disfrute del dinero ilícito recibido; para ello giró instrucción al ente bancario para que a estos fondos se les sumaran ocho mil ciento sesenta y cinco dólares con veintitrés centavos ($8.165.23) de su cuenta Nº [Valor 047] con el BAC San [Nombre11] y $161.725 correspondientes al principal y cupón del certificado de inversión Nº [Telf1], con el fin de alcanzar el total de doscientos mil dólares ($200.000) en el BAC International Bank, monto con el que adquirió a su nombre, el certificado Nº [Telf2] de la misma entidad bancaria en Bahamas. 226) Asimismo, con los fondos señalados en el hecho trasanterior, el encartado [Nombre [Nombre10]] adquirió los certificados de inversión Nº 224-002-0037278 y Nº 224-002-0037286 del Banco Cuscatlán de Costa Rica por la suma de diez mil dólares ($10.000.00) cada uno, emitidos al portador y con vencimiento al 11 de enero de 2002, los cuales hizo llegar a [Nombre [Nombre7]]. Una vez en su poder, [Nombre [Nombre7]] endosó los certificados con los respectivos cupones de interés y los depositó en la cuenta Nº [Valor 048] de Inversiones Sama S.A., con el Banco Nacional, por un total de veinte mil setenta y tres dólares con dieciocho centavos ($20.073.18); luego solicitó un cheque por tres mil dólares ($3.000) y los restantes diecisiete mil setenta y tres dólares con dieciocho centavos ($17.073.18) los invirtió en la compra de participaciones en Sama Fondo de Ingreso Mensual Dólares. 227) </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">El 10 de enero de 2002, el imputado [Nombre [Nombre8]] continuó con la entrega de la dádiva ilícita a favor del acusado [Nombre [Nombre6]]</span><span style=\"font-family:Arial; text-decoration:underline\"> </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">, siguiendo con lo convenido sobre la distribución de los fondos con el encartado [Nombre [Nombre10]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. De esta forma aplicó un débito a la cuenta de [Nombre [Nombre5]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. Nº [Valor 012] con el Cuscatlán International Bank por sesenta mil dólares ($60.000) y adquirió seis certificados, entre ellos los números 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 del Banco Cuscatlán de Costa Rica por diez mil dólares ($10.000) cada uno emitidos al portador. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Estos títulos le fueron entregados por [Nombre [Nombre10]] a [[Nombre13]</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">], quien los admitió el 11 de febrero de ese mismo año</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, fecha de su vencimiento, de inmediato los endosó y depositó en su cuenta Nº [Valor 047]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">con el BAC San [Nombre11], junto con los cuatro cupones de intereses por un total de $129.16. 228) Asimismo, los otros dos certificados Nº 224-002-0038517, 224-002-0038568, con fecha de vencimiento al 11 de febrero de 2002 y emitidos al portador, entre los días 9 de enero y 11 de febrero de 2002, fueron entregados a [Nombre [Nombre7]], quien a su vencimiento entre los días 11 y 13 de febrero de 2002 los endosó y depositó en su cuenta del Scotiabank, S.A. Nº [Valor 061]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, con sus respectivos cupones de intereses que ascendían a $64.58. 228) Asimismo, los otros dos certificados Nº 224-002-0038517, 224-002-0038568, con fecha de vencimiento al 11 de febrero de 2002 y emitidos al portador, entre los días 9 de enero y 11 de febrero de 2002, fueron entregados a [Nombre [Nombre7]], quien a su vencimiento entre los días 11 y 13 de febrero de 2002 los endosó y depositó en su cuenta del Scotiabank, S.A. Nº [Valor 061]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, con sus respectivos cupones de intereses que ascendían a $64.58.229</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">) Sin precisar fecha pero al finalizar el año 2002, luego de que el acusado [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">admitió la dádiva que le fue entregada en consideración de su oficio de diputado, sin habérsele hecho la entrega total de la misma y sin que hubiese un acuerdo previo de colaboración</span><span style=\"font-family:Arial; font-style:italic\">, fragua un procedimiento para evitar que lo involucren directamente con el delito y desviar los controles del sistema bancario nacional. Para ello, le solicitó al acusado [Nombre [Nombre7]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">un número de cuenta para recibir parcialmente la dádiva; a sabiendas del origen ilícito del dinero, [Nombre [Nombre7]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">le suministró el número de cuenta bancaria Nº [Valor 059]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">con el Banco Internacional de Costa Rica (BICSA) en la Agencia en Miami, dato que [Nombre [Nombre6]] transmitió a [Nombre [Nombre8]], quien a su vez lo refirió al imputado [Nombre [Nombre10]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. 230) De tal modo, en fecha 16 de enero de 2003, el acusado [Nombre [Nombre10]], mediante su sociedad [Nombre [Nombre5]]. ordenó al Cuscatlán International Bank &amp; Trust, Co. Ltd., que se transfirieran cincuenta y cinco mil dólares ($55.000) a la cuenta Nº [Valor 059]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">del encartado [Nombre [Nombre7]], pero destinados a [Nombre [Nombre6]], mediante aplicación de un decremento a la inversión a la vista Nº [Identificacion4] por la citada suma. 231) Con la acreditación de los cincuenta y cinco mil dólares ($55.000) a su favor, el 30 de enero de 2003, el acusado [Nombre [Nombre7]] adquirió en BICSA los certificados al portador Nºs 21792, 21793, 21794, 21795, todos por un monto de ocho mil novecientos veintiocho dólares con setenta y cinco centavos ($8.928.75), más los cupones de intereses por $74.44 para un total de treinta y cinco mil setecientos ochenta y nueve dólares con cuarenta y cuatro centavos ($35.789.44) y con fecha de vencimiento el día 28 de febrero del año 2003. Posteriormente, el acusado [Nombre [Nombre7]] se los entregó, previo endoso, al acusado [Nombre [Nombre6]]. 232) Una vez admitida esta parte de la dádiva con la intermediación de [Nombre [Nombre7]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, el coencartado [Nombre [Nombre6]], el día 03 de marzo de 2003, liquidó los certificados antes citados y depositó la suma de diecisiete mil ochocientos ochenta y nueve dólares con cuarenta y cuatro centavos ($17.889.44) en su cuenta Nº [Valor 047]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">del BAC San [Nombre11]; canceló ocho mil dólares ($8.000) en el pago de su tarjeta de crédito [Valor 050]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">del BAC San [Nombre11] y se dejó en dinero en efectivo la suma de nueve mil novecientos dólares ($9.900). 233) Para completar la entrega al encartado [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">de los cincuenta y cinco mil dólares $55.000 recibidos en su cuenta, el acusado [Nombre [Nombre7]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, en fecha 20 de octubre de 2003, compró el cheque de gerencia Nº 160258 emitido a su nombre por BICSA por la suma de diecinueve mil setecientos noventa y cinco dólares ($19.795), que endosó y depositó en la cuenta de [Nombre [Nombre6]] Nº [Valor 047] con el BAC San [Nombre11], el 28 de octubre de ese mismo año. 234) De esta forma, el acusado [Nombre [Nombre7]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">ayudó a asegurar que el endilgado [Nombre [Nombre6]] obtuviera la suma de cincuenta y cinco mil quinientos ochenta y cuatro dólares y cuarenta y cuatro centavos ($55.584.44), como parte del enriquecimiento ilícito obtenido por haber admitido la dádiva entregada por los empleados de [Nombre [Nombre14]]. 235) En fecha no precisa pero aproximadamente a inicios del año 2003, el encartado [Nombre [Nombre10]], continuó con la entrega del resto de la dádiva proveniente de [Nombre [Nombre4]] vía [Nombre [Nombre5]]., a favor del imputado [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. Este último, con la finalidad de evadir los controles bancarios y disimular los ingresos que le incrementaban su patrimonio sin justificación válida, buscó una cuenta bancaria en el extranjero para recibir las sumas; de tal modo, [Nombre [Nombre6]] encubriendo el origen ilícito de los fondos y el motivo de su recepción, le pidió a [Nombre [Nombre15]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">amigo de su confianza, que le prestara una cuenta bancaria fuera de Costa Rica, aduciendo que la necesitaba porque le iban a ingresar dineros de la venta de una propiedad y que deseaba mantenerlos en una cuenta fuera del país. Así, [Nombre [Nombre15]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">le facilitó la cuenta bancaria inscrita a nombre de la compañía de su propiedad [Nombre [Nombre16]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. Nº [Valor [Nombre8]] del BAC Panamá. 236) El día 2 de abril de 2003, el imputado [Nombre [Nombre10]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, mediante nota, solicitó la aplicación de un débito a la cuenta Nº [Valor 012]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">de [Nombre [Nombre5]]. en el Banco Cuscatlán, por la suma de dos millones cuatrocientos cincuenta mil dólares ($2.450.000) y la emisión de 18 certificados de inversión entre los que se contemplaba el Nº [Identificacion5] por cincuenta mil dólares ($50.000) con plazo a 33 días. Este título se le entregó a [Nombre [Nombre6]] quien siempre con la finalidad de evadir ser descubierto en su delincuencia, el 05 de mayo de 2003 se lo dio a [Nombre [Nombre15]] para que lo depositara en la cuenta de [Nombre [Nombre16]]. A su vez, [Nombre [Nombre15]] le encargó a [Nombre [Nombre12]], empleado de su confianza, que realizara el trámite correspondiente, de tal modo [Nombre [Nombre12]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">liquidó ese certificado junto con los cupones de intereses por $116.45 en el Banco Cuscatlán, y en la misma institución bancaria adquirió el cheque de gerencia Nº 16987-7 por cincuenta mil ciento dieciséis dólares con cuarenta y cinco centavos ($50.116.45) a favor de la empresa de origen panameño [Nombre [Nombre16]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">., el cual fue depositado en la cuenta Nº [Valor [Nombre8]] del BAC International Bank Panamá el día 6 de mayo; logrando de esa manera [Nombre [Nombre6]] aumentar en forma ilícita su patrimonio con el dinero proveniente de [Nombre [Nombre14]], vía [Nombre [Nombre5]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. 237) El imputado [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">le hizo saber al coencartado [Nombre [Nombre10]] el número de cuenta a nombre de [Nombre [Nombre16]] en donde hacer llegar las entregas posteriores. Así en fecha 17 de julio de 2003, el acusado [Nombre [Nombre10]], como apoderado de [Nombre [Nombre5]]., continuó con la entrega de la dádiva ilícita a favor de [Nombre [Nombre6]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">; para ello nuevamente giró instrucciones a la entidad bancaria para que se aplicara un débito a la cuenta de su compañía y fuera transferida a la orden de [Nombre [Nombre16]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. a la cuenta Nº [Valor [Nombre8]] en el BAC Panamá, la suma de cincuenta y cinco mil dólares ($55.000). 238) Con ciento cinco mil ciento dieciséis dólares con cuarenta y cinco centavos ($105.116.45) a su disposición en la cuenta de [Nombre [Nombre16]]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">., sin precisar fecha, pero poco antes del día 11 de agosto de 2003, el acusado [Nombre [Nombre6]] le pidió a [Nombre [Nombre15]] ayuda en la compra de un vehículo para su hija [Nombre [Nombre17]]. [Nombre [Nombre15]] se puso en contacto con la encargada de ventas de la Agencia [Nombre18] Motor, con quien coordinó la compra de un vehículo marca Toyota modelo RAV 4 y le dio el número telefónico del acusado [Nombre [Nombre6]] para que pactaran la compra. 239) A efecto de cancelar el vehículo, el acusado [Nombre [Nombre6]] le pidió a [Nombre [Nombre15]] un cheque por el valor del mismo.“**VIII** […] On the other hand, it is important to reiterate that illicit enrichment (enriquecimiento ilícito) is a generic or residual criminal offense (tipo penal) in relation to more complex figures. Unlike what occurs with other criminal offenses, where a specific purpose is foreseen as a subjective element additional to intent (dolo), a purpose that guides the public official (funcionario público) when receiving the gift (dádiva) or the promise thereof and which is the same purpose directing the action of the person who, in a convergent manner, presents the retribution or promises it (e.g., the acceptance of gifts for a completed act, in relation to the penalty of the corruptor), in the criminal offense of illicit enrichment the legislator contemplated the simple admission of economic retributions that were *presented* or *offered* to the public official in consideration of their office (oficio) and during the exercise of the position (cargo) that motivated that presentation or offer, without it being necessary to demonstrate, —because the offense does not demand it—, that additional purpose that complements intent. By way of example, to sanction illicit enrichment it is not necessary to demonstrate that the gift was received as retribution for an act completed by the public official and without there having been a prior promise, a purpose that is indeed foreseen as a specializing element in the criminal offense of acceptance of gifts for a completed act. Therefore, the defense is not correct in maintaining that for this crime (delito) to be configured it is essential that the subjective elements it lists have been proven or, alternatively, categorically ruled out, elements that are characteristic of criminal offenses having a genus-to-species relationship with illicit enrichment, where the latter is the generic or residual norm, elements which, it should also be said, were not charged in relation to [[Name1] ]. For all of the foregoing, the objections are dismissed. […] **XII.- The defense is not correct**. Regarding the arguments related to the lack of correlation between the accusation (acusación) and the judgment (sentencia) and the inclusion in the facts charged by the requesting body of the typical elements of the crime of illicit enrichment, the appellant must stand by what was indicated in Considerando VIII.- of this resolution (resolución). As was explained then, those issues were heard and resolved by the Third Chamber (Sala Tercera), rejecting the arguments that Mr. [Name2] raised in that direction. Regarding the motive or purpose for which the gifts were presented to [[Name1] ], namely, whether they were, for example, in exchange for him carrying out an act proper to his functions or one contrary to his duties, or to not do or delay an act proper to his functions, or if it was as retribution for a completed act without a prior promise, it suffices to reiterate that those purposes are not part of the applied criminal offense, making it irrelevant that this purpose could not be proven or categorically ruled out. In fact, if this possibility had been glimpsed, it is likely that [[Name1] ] would have been charged not with a residual crime but with some other that specifically and precisely regulated the matter. By way of example, in active bribery (cohecho propio), the public official who admits the gift or its promise knows that it is directed at making him do an act contrary to his duties, or to not do or delay an act proper to his functions. Regardless of whether those acts are carried out, what is important is that the official's action is colored by this purpose, as is the conduct of the person who delivers the economic advantage or promises it. The same occurs in other criminal offenses, for example, the acceptance of gifts for a completed act, or aggravated corruption. These are special criminal offenses in relation to illicit enrichment, where the configuration of one of the former may presuppose or encompass the realization of the latter, but not the reverse. In the case of Article 346 subsection 3) of the Criminal Code (Código Penal), it suffices that the public official admits the gift that *was presented or offered to them in consideration of their office while they remain in the exercise of the position*, which has been proven here, since it is extracted from the statement of proven facts (relación de hechos probados) that [Name [Name3]], in his condition as deputy chief of the Switching Department Directorate of ICE and while he remained in office, accepted money from [Name [Name4]] that was transferred to him through [Name [Name5]]. It is reiterated, the search for other additional purposes is not a subjective element additional to intent that is contemplated in this criminal offense, making it irrelevant that there is no evidence in this regard. For the foregoing reasons, the ground is dismissed. […] **XXX.- The objections must be partially upheld, in the terms and with the consequences that will be stated**. For the purpose of achieving greater expository clarity, it is necessary to reproduce some of the facts charged by the requesting body and those that the court (tribunal) deemed proven in relation to [Name [Name6]]: *“…220) It was thus that between the months of July and August 2000, the accused (imputado) [Name [Name6]] and [Name [Name7]] held meetings with the defendant (encartado) [Name [Name8]] and the indictee (indiciado) [Name [Name9]], in which they continued addressing the issue of the lack of openness by I.C.E to public tenders (licitaciones públicas) in the field of cellular telephony. In one of these encounters, the accused [Name [Name8]] and the indictee [Name [Name9]], offered the accused [Name [Name6]], in consideration of his office, the delivery of a gift consisting of money if the opening to public tenders in I.C.E was achieved, equivalent to 0.5% of the contract obtained. 221) By virtue of the above, the accused [Name [Name6]] shows his acquiescence to the offer of the gift and decided to share it with [Name [Name7]], for having made contact with the corruptors. 222) As had been agreed, once the award (adjudicación) of the abbreviated public tender was achieved in favor of [Name [Name4]], the accused [Name [Name8]], by common accord with the indictee [Name [Name9]], began the delivery, in an installment manner, of the gift that had been promised to the co-accused (coimputado) [Name [Name6]] in consideration of his office. 223) To do so, they utilized the payment method employed with other of the accused I.C.E officials, channeling the funds through the accused [Name [Name10]] and his company [Name [Name5]]. 224) In this manner, on December 10, 2001, the accused [Name [Name10]], in accordance with the plan previously drawn up with the indictee [Name [Name9]] and the accused [Name [Name8]], from the money previously transferred by the company [Name [Name4]], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Name [Name5]]. in Cuscatlán International Bank and, on December 10, 2001, acquired with that sum a series of bearer investment certificates (certificados de inversión al portador) with Banco Cuscatlán de Costa Rica, among which were Nos. [Identificacion1], [Identificacion2] and [Identificacion3], each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the certificates into account No. [Value [Name4]] in the name of BSJ International Bank with Banco San [Name11]. [Name12]) On January 15, 2002, the accused [Name [Name6]], while remaining in the exercise of the office of deputy (diputado), admitted the gift that was presented to him in consideration of his office upon receiving in BAC San [Name11] the three aforementioned certificates*, which totaled thirty thousand dollars ($30,000). On that same date, he began the enjoyment of the illicit money received; for this, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Value 047] with BAC San [Name11] and $161,725 corresponding to the principal and coupon of investment certificate No. [Telf1], in order to reach the total of two hundred thousand dollars ($200,000) in BAC International Bank, an amount with which he acquired in his name, certificate No. [Telf2] from the same banking entity in the Bahamas. 226) Likewise, with the funds indicated in the third preceding fact, the defendant [Name [Name10]] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he had delivered to [Name [Name7]]. Once in his possession, [Name [Name7]] endorsed the certificates with their respective interest coupons and deposited them into account No. [Value 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares. 227) *On January 10, 2002, the accused [Name [Name8]] continued with the delivery of the illicit gift in favor of the accused [Name [Name6]], following what was agreed upon regarding the distribution of the funds with the defendant [Name [Name10]]*. In this way, he applied a debit to the account of [Name [Name5]]. No. [Value 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them numbers 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. *These certificates were delivered by [Name [Name10]] to [[Name13] ], who admitted them on February 11 of that same year*, their maturity date, immediately endorsed them, and deposited them into his account No. [Value 047] with BAC San [Name11], along with the four interest coupons totaling $129.16. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, with a maturity date of February 11, 2002, and issued to bearer, between the days of January 9 and February 11, 2002, were delivered to [Name [Name7]], who upon their maturity, between the days of February 11 and 13, 2002, endorsed them and deposited them into his account at Scotiabank, S.A. No. [Value 061], with their respective interest coupons that amounted to $64.58. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, with a maturity date of February 11, 2002, and issued to bearer, between the days of January 9 and February 11, 2002, were delivered to [Name [Name7]], who upon their maturity, between the days of February 11 and 13, 2002, endorsed them and deposited them into his account at Scotiabank, S.A. No. [Value 061], with their respective interest coupons that amounted to $64.58. 229) *Without specifying a date but at the end of the year 2002, after the accused [Name [Name6]] admitted the gift that was delivered to him in consideration of his office as deputy, without the total delivery thereof having been made and without there having been a prior collaboration agreement*, he devises a procedure to avoid being directly linked to the crime and to divert the controls of the national banking system. To do this, he requested from the accused [Name [Name7]] an account number to partially receive the gift; knowing the illicit origin of the money, [Name [Name7]] provided them with the bank account number No. [Value 059] with Banco Internacional de Costa Rica (BICSA) at its Agency in Miami, data that [Name [Name6]] transmitted to [Name [Name8]], who in turn referred it to the accused [Name [Name10]]. 230) In this manner, on January 16, 2003, the accused [Name [Name10]], through his company [Name [Name5]]., ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Value 059] of the defendant [Name [Name7]], but intended for [Name [Name6]], by applying a decrement to the demand investment No. [Identificacion4] for the cited sum. 231) With the accreditation of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, the accused [Name [Name7]] acquired in BICSA the bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus the interest coupons for $74.44 for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and with a maturity date of February 28, 2003. Subsequently, the accused [Name [Name7]] delivered them, after endorsement, to the accused [Name [Name6]]. 232) Once this part of the gift was admitted with the intermediation of [Name [Name7]], the co-defendant [Name [Name6]], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Value 047] with BAC San [Name11]; he cancelled eight thousand dollars ($8,000) in the payment of his credit card [Value 050] from BAC San [Name11] and kept the sum of nine thousand nine hundred dollars ($9,900) in cash. 233) To complete the delivery to the defendant [Name [Name6]] of the fifty-five thousand dollars $55,000 received into his account, the accused [Name [Name7]], on October 20, 2003, purchased cashier's check (cheque de gerencia) No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Name [Name6]] No. [Value 047] with BAC San [Name11], on October 28 of that same year. 234) In this way, the accused [Name [Name7]] helped ensure that the indicted [Name [Name6]] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment obtained for having admitted the gift delivered by the employees of [Name [Name14]]. 235) On an unspecified date but approximately at the beginning of the year 2003, the defendant [Name [Name10]] continued with the delivery of the remainder of the gift originating from [Name [Name4]] via [Name [Name5]]., in favor of the accused [Name [Name6]]. The latter, with the aim of evading banking controls and disguising the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; in this manner, [Name [Name6]], concealing the illicit origin of the funds and the reason for their receipt, asked [Name [Name15]], a trusted friend, to lend him a bank account outside of Costa Rica, claiming that he needed it because money from the sale of a property was going to be deposited and he wished to keep it in an account outside the country. Thus, [Name [Name15]] provided him with the bank account registered in the name of his company, [Name [Name16]]. No. [Value [Name8]] from BAC Panamá. 236) On April 2, 2003, the accused [Name [Name10]], by note, requested the application of a debit to account No. [Value 012] of [Name [Name5]]. in Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was contemplated No. [Identificacion5] for fifty thousand dollars ($50,000) with a term of 33 days. This certificate was delivered to [Name [Name6]] who, always with the aim of evading being discovered in his criminal activity, on May 5, 2003, gave it to [Name [Name15]] so that he could deposit it into the account of [Name [Name16]]. In turn, [Name [Name15]] tasked [Name [Name12]], a trusted employee, with carrying out the corresponding process; in this manner, [Name [Name12]] liquidated that certificate along with the interest coupons for $116.45 in Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian-origin company [Name [Name16]]., which was deposited into account No. [Value [Name8]] of BAC International Bank Panamá on May 6; thereby [Name [Name6]] illicitly increasing his assets with the money originating from [Name [Name14]], via [Name [Name5]]. 237) The accused [Name [Name6]] informed the co-defendant [Name [Name10]] of the account number in the name of [Name [Name16]] where subsequent deliveries were to be made. Thus, on July 17, 2003, the accused [Name [Name10]], as legal representative (apoderado) of [Name [Name5]]., continued with the delivery of the illicit gift in favor of [Name [Name6]]; to do so, he again instructed the banking entity to apply a debit to his company's account and transfer the sum of fifty-five thousand dollars ($55,000) to the order of [Name [Name16]]. into account No. [Value [Name8]] at BAC Panamá. 238) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Name [Name16]]., on an unspecified date, but shortly before August 11, 2003, the accused [Name [Name6]] asked [Name [Name15]] for help in purchasing a vehicle for his daughter [Name [Name17]]. [Name [Name15]] contacted the sales manager of Agencia [Name18] Motor, with whom he coordinated the purchase of a Toyota RAV 4 model vehicle and gave her the telephone number of the accused [Name [Name6]] so they could arrange the purchase. 239) In order to pay for the vehicle, the accused [Name [Name6]] asked [Name [Name15]] for a check for the value thereof.

Thus [Name [Name15]] issued check no. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700.00) from current account No. [Value [Name8]] of his principal [Name [Name16]] at BAC International Bank Panama in favor of Banco San [Name11], and instructed [Name [Name12]] to use it to acquire a cashier's check payable to [Name18] Motor for the indicated sum. On August 11, 2003, [Name [Name6]] formalized the transfer of the vehicle, make RAV 4, Toyota, color red, four doors, license plate [[Placa1]], into the name of [Name [Name17]], to whom he gifted it. 240) Continuing with the disposal of the money originating from [Name [Name4]], the defendant [Name [Name6]] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Name [Name16]] to combine them with money from another source and acquire a dwelling in the [...]. 241) On October 27, 2003, the accused [Name [Name10]] ordered that from the account of [Name [Name5]]. with Banco Cuscatlán, a debit of one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) be applied and that a transfer be made to account No. [Value [Name8]] of [Name [Name16]]. with BAC International Bank Panama, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the defendant [Name [Name6]], a deposit that was made effective on October 29, 2003. 242) Finally, on January 7, 2004, the imputed [Name [Name10]], as legal representative of [Name [Name5]]., instructed the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum to send a transfer for one hundred thousand dollars ($100,000) to the account of [Name [Name16]]., No. [Value [Name8]] with BAC International Bank Panama. [Name17]) According to the foregoing, the imputed [Name [Name10]], through his company [Name [Name5]]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Value 012] with Cuscatlán International Bank in favor of [Name [Name16]]., to account No. [Value [Name8]] with BAC International Bank in Panama, to be delivered to the accused [Name [Name6]], an effective income that was reduced by $21.00 due to the application of bank commissions, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán, he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, via this channel [Name [Name6]] admitted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). On the other hand, through [Name [Name7]] he also admitted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift by reason of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 244) Furthermore, for having made the initial contact between him and the employees of the company [Name [Name14]], the defendant [Name [Name6]] voluntarily decided to give money to [Name [Name7]], as explained below. 245) On November 11, 2003, [Name [Name6]] asked [Name [Name15]] that, with the money deposited by the company [Name [Name5]]. into the account of his principal [Name [Name16]]., he acquire a cashier's check in favor of [Name [Name7]] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Name [Name15]] issued check no. 008 for that sum and delegated the procedure to [Name [Name12]], who purchased at BAC San [Name11] bank the cashier's check no. 75741-8 in favor of [Name [Name7]], for fifty-six thousand seven hundred forty-six dollars ($56,746). 246) After receiving the negotiable instrument from [Name [Name15]], [Name [Name6]] delivered it to [Name [Name7]], who on November 19, 2003, deposited it into account No. [Value 051] of Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares. 247) On February 4, 2004, the defendant [Name [Name6]] again asked [Name [Name15]] that, from the funds originating from the company [Name [Name5]]., deposited in the account of [Name [Name16]]. at BAC International Bank Panama, he acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Name [Name7]], for which [Name [Name15]] issued check no. 010 with which [Name [Name12]], to whom the procedure was delegated, purchased cashier's check no. 75992-0 from BAC San [Name11] for the indicated sum. After receiving it from [Name [Name15]], [Name [Name6]] delivers the said check to [Name [Name7]], who cashed it on February 10, 2004. 248) Finally, [Name [Name6]] asked [Name [Name10]] that, from the money originating from [Name [Name14]], he transfer the sum of fifty thousand dollars to [Name [Name7]]. Thus, on April 2, 2003, [Name [Name10]] applied a debit from account No. [Value 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Name [Name10]] delivered it to [Name [Name7]], who liquidated it together with the accumulated interest of $121.45 and deposited the entirety of the money into account No. [Value 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Value 051] with that institution. [Name [Name7]] supplemented it with other money whose origin is unknown and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 249) Via [Name [Name16]], [Name [Name7]] received from the money admitted by [Name [Name6]] the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Name [Name5]]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21)." (F. 14,494 and 14,500 front, volume XXX, the highlighting is not from the original). Regarding the demonstrated facts, it is held that: "201) The defendant [Name [Name6]] held the status of public official as a result of popular election in which he was designated as Deputy of the Legislative Assembly for the Partido Unidad Social Cristiana, for the constitutional periods from May 1, 1990, to April 30, 1994, and from May 1, 1998, to April 30, 2002. 202) In the exercise of his deputy status, the defendant [Name [Name6]] was a member of the joint legislative commission that was constituted as a result of the social movement that arose against the legislative projects known as the "combo del I.C.E." and on April 4, 2000, was appointed president of the Joint Legislative Commission, taking a direct leading role in the political activity related to the telecommunications matter. 203) [Name [Name7]] also served as a public official from August 1, 1974, to September 27, 2004, occupying a permanent position at ICE, an institution where he worked in various positions, the last of which was as Deputy Chief of Management in different units from December 1, 1996, to September 27, 2004, among them the ICETEL sub-management attached to the UEN of International Services and the UEN of Project Execution Development. During that period, Mr. [Name [Name7]] was a coworker of Mr. [Name [Name19]], who later left his job at ICE and began working at the company [Name [Name14]] Costa Rica, the local subsidiary of the [Name [Name14]] corporation. 204) Having been previously informed that [Name [Name7]] knew the PUSC Caucus Leader, the accused [Name [Name6]], Mr. [Name [Name19]] (at that time Commercial Director of customer accounts at [Name [Name14]]) during the year 1999 made a telephone call to [Name [Name7]] to ask him to facilitate a meeting between the two. At that time, [Name [Name14]] was seeking to establish communication with important actors in the national political scene, among them caucus leader deputies of the Legislative Assembly, in order to present [Name [Name14]]’s complaint against the direct purchase agreement "ICE-ERICSSON" for the acquisition of 83,000 cellular lines, considering that ICE was avoiding competitiveness among suppliers and technological improvements in mobile telephony. 205) As a result of [Name [Name7]]'s intervention, a first meeting occurred between the defendant [Name [Name6]] and [Name [Name19]] at the end of 1999, in which the latter presented the public complaint against the aforementioned project. 206) Subsequently, in the year 2000, [Name [Name14]] continued with another public complaint campaign against ICE's reluctance to allow the development of cellular telephony through GSM technology and with the purpose of enabling that company to enter that field through public tender. Therefore, following the same previous dynamic, starting in March and April of that year, [Name [Name19]] facilitated, through [Name [Name7]], a new communication with the accused [Name [Name6]], in consideration of his status as a deputy and PUSC caucus leader, which was the majority bench during that legislative period, and his prominence in the discussion area of the telecommunications issue. 207) On an undetermined date but approximately during the first months of the year 2000, at the initiative of representatives of the company [Name [Name14]], the defendant [Name [Name6]], by reason of his office, met with [Name [Name19]] on various occasions, occasionally with [Name [Name7]] participating, in which the [Name [Name14]] employee raised the advisability of ICE opening itself to open tenders regarding the acquisition of cellular telephony and the benefits of GSM technology. He told him about the complaint filed by [Name [Name14]] before the Contraloría General de la República, as well as the need for it to receive real attention; a presentation that was made with the aim of seeking mechanisms to make its success feasible in the various political and administrative forums in which the issue was discussed. These meetings took place, for example, at the Legislative Assembly, at nearby coffee shops, or at the Hotel San [Name11] Palacio. 208) Without being able to establish the exact date, but between the months of February and July of the year 2000, the imputed [Name [Name6]], after several meetings with [Name [Name19]], requested a meeting be held with his superiors, the defendant [Name [Name8]] and the sentenced [Name [Name9]]. 209) Thus it was that on August 17, 2000, the imputed [Name [Name6]] and [Name [Name7]] held a meeting with the defendant [Name [Name8]] at Café [...], in which they continued discussing the issue of ICE's lack of openness to public tenders in the matter of cellular telephony. In one of these meetings, the imputed [Name [Name8]] and the sentenced [Name [Name9]], offered the imputed [Name [Name6]], in consideration of his office, the delivery of a gift consisting of money if the opening to public tenders at ICE was achieved, equivalent to 0.5% of the contract obtained. 210) By virtue of the foregoing, the accused [Name [Name6]] indicates his consent to the offer of the gift and decided to share it with [Name [Name7]], for having achieved the contact with the corruptors. 211) As had been agreed, once the award of the abbreviated public tender was achieved in favor of [Name [Name4]], the accused [Name [Name8]], by common agreement with the sentenced [Name [Name9]], began the delivery in installments of the gift that had been promised to the co-imputed [Name [Name6]] in consideration of his office. 212) To do so, they used the payment modality employed with other of the imputed ICE officials, channeling the funds through the accused [Name [Name10]] and his company [Name [Name5]]. 213) Thus, on December 10, 2001, the accused [Name [Name10]], according to the plan he had previously drawn up with the sentenced [Name [Name9]] and the accused [Name [Name8]], from the money previously transferred by the company [Name [Name4]], issued check no. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Name [Name5]]. in Cuscatlán International Bank, and on December 10, 2001, with that sum he acquired a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were those No. [Identification1], No. [Identification2], and No. [Identification3], each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the instruments into account No. [Value [Name4]] in the name of BSJ International Bank with Banco San [Name11]. 214) On January 15, 2002, the accused [Name [Name6]], while still in the exercise of the office of deputy, admitted the gift that was presented to him in consideration of his office by receiving at BAC San [Name11] the three aforementioned certificates, which totaled thirty thousand dollars ($30,000). On that same date, he began the enjoyment of the illicit money received; to do so, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Value 047] with BAC San [Name11] and $161,725 corresponding to the principal and coupon of the investment certificate No. [Telf1], in order to reach the total of two hundred thousand dollars ($200,000) at BAC International Bank, an amount with which he acquired in his name certificate No. [Telf2] from the same banking entity in the Bahamas. [Name16]) Likewise, with the funds indicated in the immediately preceding fact, the defendant [Name [Name10]] acquired the investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he had delivered to [Name [Name7]]. Once in his possession, [Name [Name7]] endorsed the certificates with their respective interest coupons and deposited them into account No. [Value 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares. 216) On January 10, 2002, the imputed [Name [Name8]] continued with the delivery of the illicit gift in favor of the accused [Name [Name6]], following what was agreed upon regarding the distribution of funds with the defendant [Name [Name10]]. In this way, he applied a debit to the account of [Name [Name5]]. No. [Value 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Name [Name10]] to [Name [Name6]], who admitted them on February 11 of that same year, their maturity date, and immediately endorsed and deposited them into his account No. [Value 047] with BAC San [Name11], along with the four interest coupons totaling $129.16. 217) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002, and issued to bearer, between January 9 and February 11, 2002, were delivered to [Name [Name7]], who, upon their maturity between February 11 and 13, 2002, endorsed them and deposited them into his Scotiabank, S.A. account No. [Value 061], with their respective interest coupons amounting to $64.58. 218) Without specifying a date but at the end of 2002, after the accused [Name [Name6]] admitted the gift that was delivered to him in consideration of his office as deputy, without the total delivery thereof having been made and without there being a prior collaboration agreement, he devises a procedure to avoid being directly linked to the crime and to divert the controls of the national banking system. To do so, he asked the accused [Name [Name7]] for an account number to receive a portion of the gift, and [Name [Name7]] provided him with bank account number No. [Value 059] with Banco Internacional de Costa Rica (BICSA) at the Branch in Miami, information that [Name [Name6]] transmitted to [Name [Name8]], who in turn referred it to the imputed [Name [Name10]]. 219) Consequently, on January 16, 2003, the accused [Name [Name10]], through his company [Name [Name5]]., ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Value 059] of [Name [Name7]], but intended for [Name [Name6]], by applying a decrease to the demand deposit investment No. [Identification4] for the cited sum. 220) With the crediting of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, [Name [Name7]] acquired at BICSA the bearer certificates No. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus the interest coupons for $74.44, for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and with a maturity date of February 28, 2003. Subsequently, [Name [Name7]] delivered them, duly endorsed, to the accused [Name [Name6]]. 221) Once this portion of the gift was admitted through the intermediation of [Name [Name7]], the co-defendant [Name [Name6]], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Value 047] with BAC San [Name11]; he paid eight thousand dollars ($8,000) toward his credit card [Value 050] from BAC San [Name11] and kept the sum of nine thousand nine hundred dollars ($9,900) in cash. 222) To complete the delivery to the defendant [Name [Name6]] of the fifty-five thousand dollars ($55,000) received in his account, [Name [Name7]], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Name [Name6]] No. [Value 047] with BAC San [Name11], on October 28 of that same year. 223) In this manner, with the intervention of [Name [Name7]], the indicted [Name [Name6]] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment from having admitted the gift delivered by the employees of [Name [Name14]]. 224) On an imprecise date but approximately at the beginning of 2003, the defendant [Name [Name10]] continued with the delivery of the remainder of the gift originating from [Name [Name4]] via [Name [Name5]]., in favor of the imputed [Name [Name6]]. The latter, with the purpose of evading bank controls and disguising the income that increased his assets without valid justification, sought a foreign bank account to receive the sums; thus, [Name [Name6]], concealing the illicit origin of the funds and the reason for their receipt, asked [Name [Name15]], a trusted friend, to lend him a bank account outside of Costa Rica, arguing that he needed it because money from the sale of a property would be deposited and he wished to keep it in an account outside the country. So, [Name [Name15]] provided him with the bank account registered in the name of his company [Name [Name16]]. No. [Value [Name8]] with BAC Panama. [Name12]) On April 2, 2003, the imputed [Name [Name10]], by means of a note, requested the application of a debit to account No. [Value 012] of [Name [Name5]]. in Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was contemplated No. [Identification5] for fifty thousand dollars ($50,000) with a 33-day term. This instrument was delivered to [Name [Name6]], who, always with the purpose of evading being discovered in his criminal activity, on May 5, 2003, gave it to [Name [Name15]] to deposit it into the account of [Name [Name16]]. In turn, [Name [Name15]] tasked [Name [Name12]], a trusted employee, with carrying out the corresponding procedure; thus, [Name [Name12]] liquidated that certificate along with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian company [Name [Name16]]., which was deposited into account No. [Value [Name8]] of BAC International Bank Panama on May 6; in this way, [Name [Name6]] succeeded in illicitly increasing his assets with the money originating from [Name [Name14]], via [Name [Name5]]. 226) The imputed [Name [Name6]] made known to the co-defendant [Name [Name10]] the account number in the name of [Name [Name16]] where future deliveries should be sent. Thus, on July 17, 2003, the accused [Name [Name10]], as legal representative of [Name [Name5]]., continued with the delivery of the illicit gift in favor of [Name [Name6]]; to do so, he again instructed the banking entity to apply a debit to his company’s account and transfer to the order of [Name [Name16]]. into account No. [Value [Name8]] at BAC Panama, the sum of fifty-five thousand dollars ($55,000). 227) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Name [Name16]]., without specifying the date, but shortly before August 11, 2003, the accused [Name [Name6]] asked [Name [Name15]] for help in the purchase of a vehicle for his daughter [Name [Name17]].

[Nombre [Nombre15]] contacted the sales manager of the [Nombre18] Motor Agency, with whom she coordinated the purchase of a Toyota RAV 4 vehicle and gave her the phone number of the accused [Nombre [Nombre6]] so they could arrange the purchase. 228) In order to pay for the vehicle, the accused [Nombre [Nombre6]] asked [Nombre [Nombre15]] for a check for the value of the vehicle. Thus, [Nombre [Nombre15]] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from the checking account No. [Valor [Nombre8]] of her represented company [Nombre [Nombre16]] at BAC International Bank Panama in favor of Banco San [Nombre11], and she tasked [Nombre [Nombre12]] with using it to acquire a cashier's check in the name of [Nombre18] Motor for the indicated sum. On August 11, 2003, [Nombre [Nombre6]] formalized the transfer of the RAV 4 vehicle, Toyota, red, four doors, license plate [[Placa1] ], in the name of [Nombre [Nombre17]], to whom he gave it as a gift. 229) Continuing with the disposition of the money originating from [Nombre [Nombre4]], the defendant [Nombre [Nombre6]] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre [Nombre16]] to combine it with money from another source and acquire a dwelling in the [...]. 230) On October 27, 2003, the accused [Nombre [Nombre10]] ordered that a debit of one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) be applied to the account of [Nombre [Nombre5]]. with Banco Cuscatlán, and that a transfer be made to account No. [Valor [Nombre8]] of [Nombre [Nombre16]]. with BAC International Bank Panama, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the defendant [Nombre [Nombre6]], a deposit that was made effective on October 29, 2003. 240) Finally, on January 7, 2004, the accused [Nombre [Nombre10]], as legal representative of [Nombre [Nombre5]]., gave instructions to the Private Banking Department of Banco Cuscatlán to apply a debit of two hundred thousand dollars ($200,000), and from that sum to send a transfer of one hundred thousand dollars ($100,000) to the account of [Nombre [Nombre16]]., No. [Valor [Nombre8]] with BAC International Bank Panama. 241) According to the foregoing, the accused [Nombre [Nombre10]], through his company [Nombre [Nombre5]]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] with Cuscatlán International Bank in favor of [Nombre [Nombre16]]., to account No. [Valor [Nombre8]] with BAC International Bank in Panama, for delivery to the accused [Nombre [Nombre6]], an effective income that was reduced by $21.00 due to the application of bank commissions, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán, he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, through this channel [Nombre [Nombre6]] admitted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). On the other hand, through [Nombre [Nombre7]], he also admitted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift by reason of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 242) On the other hand, for having made the initial contact between himself and the employees of the company [Nombre [Nombre14]], the defendant [Nombre [Nombre6]] voluntarily decided to give money to [Nombre [Nombre7]], as explained below.

[Nombre17]) On November 11, 2003, [Nombre [Nombre6]] asked [Nombre [Nombre15]] to use the money deposited by the company [Nombre [Nombre5]]. in the account of her represented entity [Nombre [Nombre16]]., to acquire a cashier's check in favor of [Nombre [Nombre7]] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre [Nombre15]] issued check No. 008 for that sum and entrusted the procedure to [Nombre [Nombre12]], who purchased cashier's check No. 75741-8 from the bank BAC San [Nombre11] in favor of [Nombre [Nombre7]], for fifty-six thousand seven hundred forty-six dollars ($56,746). 244) After receiving the negotiable instrument from [Nombre [Nombre15]], [Nombre [Nombre6]] delivered it to [Nombre [Nombre7]], who on November 19, 2003, deposited it into account No. [Valor 051] of Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares. 245) On February 4, 2004, the defendant [Nombre [Nombre6]] again asked [Nombre [Nombre15]] to use the funds originating from the company [Nombre [Nombre5]]., deposited in the account of [Nombre [Nombre16]]. at BAC International Bank of Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre [Nombre7]], so [Nombre [Nombre15]] issued check No. 010 with which [Nombre [Nombre12]], to whom the procedure was delegated, purchased cashier's check No. 75992-0 from BAC San [Nombre11] for the indicated sum. After receiving it from [Nombre [Nombre15]], [Nombre [Nombre6]] delivered said check to [Nombre [Nombre7]], who cashed it on February 10, 2004. 246) Finally, [Nombre [Nombre6]] asked [Nombre [Nombre10]] to transfer the sum of fifty thousand dollars to [Nombre [Nombre7]] from the money originating from [Nombre [Nombre14]]. Thus, on April 2, 2003, [Nombre [Nombre10]] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre [Nombre10]] delivered it to [Nombre [Nombre7]], who liquidated it together with the accumulated interest of $121.45 and deposited the entire amount into account No. [Valor 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] with said institution. [Nombre [Nombre7]] supplemented it with other money whose origin is unknown and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 247) Via [Nombre [Nombre16]], [Nombre [Nombre7]] received from the money admitted by [Nombre [Nombre6]], the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre [Nombre5]]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21).” (F. 15,477 to f. 15,487 front, the highlighting is not from the original). The trial court, when analyzing the accusation, stated that it did not describe an improper bribery (cohecho impropio), since although it referred to the offer of a gift and the acceptance of said offer by [Nombre [Nombre6]], it did not mention another of the components of that criminal type, namely, the act proper to his functions (acto propio de sus funciones) that was expected of [Nombre [Nombre6]]. The a quo stated: “Therefore, this court considers that regardless of whether the conduct described by the Prosecutor's Office in its conclusions was proven or not (remunerative promise for attending to the public), the truth is that the accusation does not contain such a description and, in application of the principle of correlation between accusation and sentence (principio de correlación entre acusación y sentencia), that possibility could not even be assessed. The Public Prosecutor's Office states that [Nombre [Nombre6]] had the duty to receive the public without charging them, since political control corresponds to the Legislative Assembly; however, this is not a probatory matter, but rather one pertaining to the safeguarding of the right of defense because no circumstance is indicated in the accusation, nor is it mentioned that there was a promise or that the gift was delivered to him for performing an act such as the one described (which was within his functions). And although logically if the basic criminal type does not apply, neither does the aggravating factor, in any case, the contracting of the 400,000 cell lines does not concern the administration where [Nombre [Nombre6]] served (i.e., the Legislative Assembly). For this reason, rather, it is considered that the accusatory description corresponds to the crime of Illicit Enrichment (Enriquecimiento ilícito), but before assessing the reasons for determining that classification adjustment, the issue of the alleged tacit repeal of the criminal type is addressed ...” (F. 16,055 and 16,056 front). This conclusion, which was not challenged by the Public Prosecutor's Office, is correct, since indeed, the accusation did not contemplate what was the act proper to his functions (acto propio de sus funciones) that the corruptors expected from [Nombre [Nombre6]], a typical element that is extremely important, as it allows differentiating improper bribery (cohecho impropio) from other figures, e.g., from proper bribery (cohecho propio), or from some even more complex ones that can become its complement, since additional purposes are sought (as happens, e.g., with the crime of aggravated corruption by bribery (corrupción agravada por cohecho), be it proper or improper). Therefore, although it is true that the accusation stated that [Nombre [Nombre6]] accepted the promise of remuneration, and even though the court deemed its content proven, the truth is that said issue is irrelevant, since as is well recognized in the appealed sentence, it is impossible, or at least it is without violating the principle of correlation between accusation and sentence (principio de correlación entre acusación y sentencia), to consider it proven that [Nombre [Nombre6]] accepted that promise of remuneration in exchange for “receiving the public,” as indicated by the Public Prosecutor's Office, to remedy the error contained in its accusation. Having clarified this, it is necessary to recall that the criminal type of illicit enrichment (enriquecimiento ilícito) applicable in this case contemplated the admission of gifts that were presented or offered to the public official in consideration of his office, while he remains in the exercise of the position. As explained in the sixth recital (considerando), to which the appellant must adhere, it is a criminal type that provides for two distinct situations, namely, i) the admission of gifts presented and ii) the admission of gifts offered. In the first hypothesis, the presentation and receipt of the advantage, and in the second, the offer and admission of it, must take place while the public official remains in the position in consideration of which the remuneration is presented or offered. This is a difference that in matters such as the present is not trivial, since in the second situation, the crime is configured regardless of whether the active subject receives the economic remuneration, whereby this receipt constitutes a subsequent unpunished act, which can take place after the public official has ceased to serve in the position. That said, it is important to emphasize that the trial court deemed it proven that [Nombre [Nombre6]] was offered a gift and that he accepted it (f. 16,064 front, last paragraph, volume XXXIII). That is, at least in principle, the second situation of those previously raised would be configured. In response to this, Attorney [Nombre20] claims that the said offer cannot be deemed proven. In this Chamber's view, he is correct. Let us see. To determine the responsibility of [Nombre [Nombre6]] regarding illicit enrichment (enriquecimiento ilícito), the court weighed a series of circumstances that are described from folio 15,997 front to 16,054 front of volume XXXIII and that can be schematized as follows: i) [Nombre [Nombre6]] was a deputy of the Legislative Assembly from May 1, 1998, to April 30, 2002, and then, from May 8, 2002, to April 21, 2004, he was the executive president of the Caja Costarricense del Seguro Social; ii) as a deputy, he was part of the special mixed commission that was formed after the protests over the so-called ICE combo. The intention was for said commission to issue a report and until it did so, no bill related to ICE would be processed. The foregoing is of interest, says the court, because a document called “Nueva Ley de Telecomunicaciones (Combo ICE), impacto sobre [Nombre [Nombre14]] y acciones a seguir” was seized from the management of [Nombre [Nombre14]], which reveals the importance for the company of any action that could modify or affect the commercial expectations or contracts with the referred institution (f. 15,999 front); iii) [Nombre [Nombre7]] worked at ICE from August 1, 1974, until September 27, 2004, and was the liaison between [Nombre [Nombre14]] and [Nombre [Nombre6]]. The representatives of [Nombre [Nombre14]] approached the latter, thanks to the mediation of [Nombre [Nombre7]], to expose their concerns about the direct contracts carried out by ICE, which, according to them, excluded them from the market. The evidence accounts for this (expert report No. 428-DEF-443-05/05, evidence No. 630, PC06, “Libro blanco” file, and the statement of [Nombre [Nombre19]]); iv) it was ruled out, based on the testimonial evidence examined, that [Nombre [Nombre6]] had been a consultant for the company [Nombre [Nombre14]], nor that he had had any commercial or employment relationship with [Nombre [Nombre5]]. that justified the receipt of the money that was delivered to him. Even [Nombre [Nombre15]] declared that this defendant told her he had earned money with [Nombre [Nombre14]] easily, because he had not done anything, and according to witness [Nombre [Nombre21]], [Nombre [Nombre8]] spontaneously told her that he had paid bribes to public officials, including [Nombre [Nombre6]]. There is also the case of [Nombre [Nombre22]], who pointed out that [Nombre [Nombre8]] acknowledged having paid gifts to public officials in the media. Finally, the company [Nombre [Nombre14]] had within its contracting policies the prohibition of hiring public officials as advisors. v) Based on the statement of [Nombre [Nombre19]], it was established that [Nombre [Nombre6]] was informed about the issue of mobile telephony and the interest of [Nombre [Nombre14]] in eliminating direct contracting without bidding. [Nombre [Nombre14]] had made two public and denunciation campaigns, one to oppose the contracting of the lines to Ericsson in 1999 and another in 2000, regarding GSM technology, and since 1999 there was contact with [Nombre [Nombre6]]. There were several meetings with the then deputy, and on one occasion, [Nombre [Nombre6]] asked [Nombre [Nombre19]] to speak with his superiors, a meeting that, according to the witness, did take place. vi) The court considered that from what was said by [Nombre [Nombre19]], it is inferred that [Nombre [Nombre6]] was contacted to discuss the elimination of direct contracts and the opening of bidding, which leads to the topic of the 400,000 cell lines. This confirms the version of [Nombre [Nombre23]], in the sense that the offer of the gift had to do with the topic of mobile switching centers and GSM technology, and to that extent, there are signs that allow glimpsing that [Nombre [Nombre6]] was also made a remunerative promise under circumstances modal and temporal similar to the one made to [Nombre [Nombre23]], only that while the latter was called by [Nombre [Nombre9]], it was [Nombre [Nombre6]] who asked to speak with the superiors of [Nombre [Nombre19]]. Furthermore, the payments were also made to him through the same channels as to other defendants. vii) There is documentation that accounts for the fact that on August 17, 2000, at Café [...], [Nombre [Nombre8]] met with [Nombre [Nombre6]] and [Nombre [Nombre7]]; viii) [Nombre [Nombre24]], a messenger for the company [Nombre [Nombre14]], said he had taken envelopes sent by [Nombre [Nombre8]] to the accused [Nombre [Nombre25]], [Nombre [Nombre26]], [Nombre [Nombre6]] and [Nombre [Nombre10]], at their homes and offices. The secretary of [Nombre [Nombre8]] said that envelopes were sent to ICE and to the defendants, and that she knew their contents; however, “…this does not exclude that [Nombre [Nombre24]] carried envelopes that were not those she knew; envelopes that also had characteristics different from those described as known by her.” (CED1. front). ix) Just as in the year 2000, the public campaign by [[Nombre27] ] in favor of public bidding and migration to GSM technology began, also between July 2000 and December of that year, representatives of [[Nombre27] ] met with deputies and other figures from the political sphere. It is then that the encounters with [[Nombre13] ], [[Nombre28] ] and [[Nombre29] ] took place, all of whom ultimately received money originating from [[Nombre30] ]. x) Finally, the a quo assessed abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [[Nombre13] ] originated from [Nombre [Nombre4]]. Having analyzed these signs and considering, of course, the hypothetical suppression that must be performed of the testimony of [[Nombre29] ], the undersigned conclude that it is not possible to deem it proven that on August 17, 2000, at Café [...], [Nombre [Nombre8]] directed a promise or offer of economic remuneration to [Nombre [Nombre6]]. This Chamber does not doubt that the cited meeting took place; however, this is not enough to prove the offer, especially considering that the encounters were not unusual and that [Nombre [Nombre19]] himself acknowledged that part of the strategy of [[Nombre27] ] was to meet with people from different sectors, including deputies. Similarly, the fact that [Nombre [Nombre6]] asked [Nombre [Nombre19]] to speak with his superior ([Nombre [Nombre8]]) is an equivocal sign, which even allows us to think of other hypotheses, for example, that it was this public official who, abusing his status as deputy, forced or induced another to give or promise the pecuniary benefit that he later received. As for the envelopes that the a quo mentioned, the same reflection must be made that was made in previous recitals. Their content is an unknown, and to that extent, it is speculation on the part of the court to maintain that they contained documentation related to the crime. Continuing along these lines of thought, no one doubts that [Nombre [Nombre6]] received money from [Nombre [Nombre4]] in the same way that other defendants in this case did; however, to extract from this with a degree of certainty and not of probability that on the 17th mentioned a promise or offer of economic remuneration was conceived is impossible, especially considering that the core evidence to have deemed the cited promise and its scope proven was the statement of the collaborating defendant [Nombre [Nombre23]], and this was considered illegal evidence. Without this account, as happens with the other defendants, other possibilities cannot be ruled out, as already indicated: that the money was demanded by the public officials themselves, among whom is [Nombre [Nombre6]], that it consisted of economic remunerations received without a prior promise, for an act performed or omitted in the capacity of a public official, or also, that the promise had a content different from that contemplated in the accusation. The range of possibilities, as can be seen, is extensive. The issue here is not the receipt of funds of irregular origin, a fact that was more than sufficiently demonstrated, but rather establishing that before that receipt, specifically, on August 17, 2000, a promise or offer of economic remuneration was directed and that [Nombre [Nombre6]] accepted it. Not only is it impossible to have deemed it proven that on the cited date [Nombre [Nombre6]] was promised a gift, but even less so that it was in exchange for “attending to the public” (an act proper to his functions which, according to what the Public Prosecutor's Office stated in its conclusions, [Nombre [Nombre8]] expected from [Nombre [Nombre6]], f. 16,055 front). Now, notwithstanding the error in the assessment of the evidence, it is unnecessary to annul the decision and order a new trial, since, as explained when examining the situation of other defendants, the possibility of incorporating additional elements of proof beyond those already existing is not foreseen, and to that extent, there is also no impediment to proceeding at this procedural stage to directly resolve what is appropriate, considering both the factual framework charged and the facts that have been deemed proven and that remain unchanged after excluding the offer of a gift. And it is that, having suppressed the promise or offer, what is necessary subsists to have the crime of illicit enrichment (enriquecimiento ilícito) configured and therefore, to confirm the first-instance sentence insofar as it declared so. The criminal type of enrichment has two modalities, as already stated, the admission of a gift presented and the admission of a gift offered. Although it cannot be assured that [Nombre [Nombre6]] admitted a gift that was offered to him, it can be affirmed—as it was so contemplated both in the accusation and in the statement of proven facts—that this defendant admitted various economic remunerations that were presented to him in consideration of his office and while he held the position of deputy. It is now appropriate to examine each of those remunerations. First delivery: In proven facts No. 213 and 214, it is stated that on December 10, 2001, the accused [Nombre [Nombre10]], from the money previously transferred by the company [[Nombre30] ], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre [Nombre5]]. at Cuscatlán International Bank, and on December 10, 2001, acquired with that sum a series of bearer investment certificates from Banco Cuscatlán de Costa Rica, among which were those Nos. [Identificacion1], [Identificacion2], and [Identificacion3], each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the instruments into account No. [Valor [Nombre4]] in the name of BSJ International Bank with Banco San [Nombre11]. Likewise, that on January 15, 2002, the accused [Nombre [Nombre6]], while remaining in the exercise of the position of deputy, admitted that gift that was presented to him in consideration of his office, by receiving at BAC San [Nombre11] the three aforementioned certificates, which totaled thirty thousand dollars ($30,000).

For the undersigned, these facts clearly constitute the crime of illicit enrichment, since the giving of the gift occurred on the occasion of the position that [Name [Nombre6]] held in the Legislative Assembly, and furthermore, this giving, as well as the acceptance of the economic advantage, occurred while he was serving as a deputy. *Second delivery:* [[Nombre13] ] was a deputy until April 30, 2002 (f. 15,998 front). In proven fact number 216, it is indicated that on January 10, 2002, [Name [Nombre10]] applied a debit to the account of [[Nombre31] ]. No. [Value 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them CED2, CED3, CED4, No. 224-002-003855-0 of Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to the bearer. These certificates were given by [Name [Nombre10]] to [Name [Nombre6]], who accepted them on February 11 of that same year—their maturity date—and immediately endorsed and deposited them into his account No. [Value 047] with BAC San [Name11], along with the four interest coupons totaling $129.16. This also constitutes a crime of illicit enrichment, since a gift was accepted on the occasion of the position, during the exercise thereof. *Third and successive deliveries*: As is extracted from the proven facts, the third through seventh deliveries of gifts to [[Nombre13] ] occurred after he had left the position of deputy, by which his actions (consisting of accepting those economic retributions) are atypical. It is important to indicate that from the criminal type under comment and in particular, from the assumption according to which a gift is *accepted* that has been *presented*, it is extracted that the acceptance must take place while the public official *exercises the position in consideration of which the economic retribution is presented to him*, in the particular case, the position of deputy, it not being sufficient only that he holds the condition of public official. For this reason, it is irrelevant that from May 8, 2002, to April 21, 2004, [Name [Nombre6]] was the executive president of the C.C.S.S. *Consequences of the foregoing*. For this chamber, the previously referenced decision *has no impact on the legal classification attributed to the facts that have been held as proven*, since once the reference to the *promise or offer of a gift* is hypothetically suppressed and, consequently, to the existence of a single economic retribution that *was offered and paid in installments*, the necessary elements remain intact to hold as proven at least the crime of illicit enrichment for which the trial court convicted [Name [Nombre6]], namely, that this defendant accepted the gifts that were presented to him due to his condition as deputy and in particular, as president of the legislative commission that would address the telecommunications issue, all of which occurred while he held the referenced position. As we saw, it was held as proven that on January 15 and February 11, 2002, he accepted several bearer investment certificates. Specifically, on January 15, 2002, three certificates for ten thousand dollars each (proven fact No. 214) and on February 11, 2002, four certificates, also for an amount of 10,000 dollars each (proven fact No. 216). *It is important to note that although for this tribunal not one, but two illicit enrichments in material concurrence are configured, the* *a quo* *considered that a single crime was configured, a decision that was not challenged by the prosecuting body and to that extent, cannot be modified to the defendant's detriment*. *Regarding the remaining gifts transferred to [Name [Nombre6]], the situation is different.* As we already explained, because they were presented during 2003 and early 2004, understood as, some time after [Name [Nombre6]] left the position of deputy, *their receipt is atypical*. We refer to the economic retributions described in proven facts numbers 219) to 241) and which, in a few lines, relate to what was received by [Name [Nombre6]] through the account of [Name [Nombre7]] at Banco Internacional de Costa Rica in Miami ($55,584.44, cf. proven facts No. 219 to No. 223); an investment certificate for $50,000 that was given to [Name [Nombre6]] by [Name [Nombre10]] and which, according to the proven facts, he asked [Name [Nombre15]] to deposit into the account of [Name [Nombre16]] (fact No. [Name12]); and finally, the monies that entered to him through the bank account of the cited company—[Name [Nombre16]]—in Panama (proven facts No. 224 to 241). This situation, which has no incidence regarding the legal classification, since as indicated *supra*, the trial court convicted for a single crime of illicit enrichment that was configured from the moment that [Name [Nombre6]] accepted the gifts presented to him when he was still a deputy, does have incidence regarding the penalty imposed, since in the judgment the highest extreme provided for in the criminal type was applied (two years of imprisonment), after considering, among other aspects, *the total amount received by [[Nombre13] ] and not only what was accepted while he occupied the position of deputy* (f. 16,066 front, volume XXXIII). Added to this, as the appellant denounces in the twelfth ground, the *a quo* also imposed the penalty of disqualification without explaining the reasons for that decision (which is confirmed by a simple reading of the previously mentioned folio). In summary and for the reasons indicated, the trial court's judgment remains intact insofar as it declared [[Nombre13] ] the responsible author of a single crime of illicit enrichment, *clarifying nonetheless*, that this conviction only concerns the economic retributions accepted by this defendant on January 15 and February 11, both of 2002 (proven facts No. 214 and 216). The judgment is annulled insofar as it imposed on [[Nombre13] ] a penalty of two years of imprisonment and 12 years of disqualification from obtaining and exercising public employment, positions, or commissions. The case is ordered remanded to the trial court so that, with a new panel and due reasoning, it proceeds to set the *quantum* of the corresponding sanction. […] **XXXIV.- The ground is not upheld**: The issue in question was also resolved by the Third Chamber, which, in the pertinent part, indicated: **“The ground is upheld.** *The former Article 346 of the 1970 Criminal Code (current Article 353 of the Criminal Code), conceived the criminal type of Illicit Enrichment as residual, in that it could only be applied in the face of the legal impossibility of proving other more serious offenses against public officials, as deduced from the letter of the norm, which in the pertinent part stated: “The public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years: 1)* ***Accepted a gift*** *of any kind or the* ***promise of a gift*** *to exert the influence derived from his position before another official, so that the latter does or refrains from doing something related to his functions;/2)* ***Used for profit for himself or for a third party, information*** *or data of a confidential nature of which he has become aware by reason of his position; /3)* ***Admitted gifts*** *that were* ***presented*** *or* ***offered*** *in consideration of his office, while he remains in the exercise of the position; and /4) (REPEALED by Article 69 of Law No. 8422 Law against Corruption and Illicit Enrichment in Public Function of October 6, 2004). Thus modified the numbering of this article by numeral 185, subsection a), of Law No. 7732 of December 17, 1997, which transferred it from 344 to 346)” (The supplied text does not belong to the original). However, with the entry into force of Law No. 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, a disjunctive was presented concerning whether with the entry into force of Article 26 of the latter normative body, the aforementioned numeral 346 had been eliminated, since Law 6872 was silent on its validity, or if, on the contrary, they are two norms that complement each other, given that ordinal 32 established as part of the provisions for the entry into force of the cited Law, the condition that stated: “…It shall enter into force upon its publication and repeals and modifies the legal provisions* ***that oppose it*** *”* (The supplied text does not belong to the original), the full validity of Article 346 being understood from the absence of tacit repeal, which is inferred from the comparison of the criminal actions described in that criminal type with those regulated in norm 26 of Law 6872, to determine their non-regulatory opposition and therefore the parallel subsistence in the Costa Rican legal system. Certainly, for purposes of greater understanding, from the following comparative study it is possible to verify the variety of illicit conducts that both criminal types describe, without being able to infer any opposition between them as the only assumption in which the tacit repeal contained in numeral 32 of Law 6872 can be applied:

*According to the preceding table, it is possible to deduce that with Law 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, in force until the enactment of Law 8422, of October twenty-nine, two thousand four, the crime of Illicit Enrichment contemplated in the former numeral 346 of the Criminal Code, far from being tacitly repealed, remained in force, as the crime of Illicit Enrichment retained the description of criminal conducts that were not included in Article 26 of Law 6872. Note, verbi gratia, that the typical actions contemplated in the cited numeral 346 included the admission of gifts presented or offered to the public official by reason of his position (Article 346, subsection 3) of the Criminal Code); the acceptance and promise of a gift to exert the influence derived from the official's position (Article 346, subsection 1) of the Criminal Code); and the use for profit, for oneself or for a third party, of information or data of a confidential nature obtained by reason of the performance of public function (Article 346, subsection 3) of the Criminal Code); while the actions contemplated in numeral 26 of Law 6872, Law on Illicit Enrichment of Public Servants of June 17, 1983, apart from increasing the sanction at its maximum extreme and presenting the novelty of being applied to subjects with respect to whom the service relationship had already ceased within the prior year, presented the description of diverse conducts to those contained in Article 346 of the Criminal Code, in which the terms: promises or presentation of gifts were not used, but rather it dealt with the judicialization of acts in which public officials had inexplicably improved their economic situation (Article 26, subsection b) of Law 6872); consented to, facilitated, or intervened in any way in the enrichment of a third party, whether a public official or not (Article 26, subsection ch) of Law 6872); in which members of the Supreme Powers granted benefits for their exclusive advantage, or for their relatives up to the second degree of consanguinity or affinity, by enacting laws, decrees, agreements, or resolutions (Article 26, subsection d) of Law 6872); among others.* In this way, as the two sets of rules do not contradict each other, their described criminal actions remained in force, according to the letter of numeral 32 of the same Law 6872 and the subsequent validity of Articles 69 and 70 of Law 8422, the Law against Corruption and Illicit Enrichment in Public Office, of October 29, 2004, which upon its entry into force expressly repealed only subsection 4 of the aforementioned Article 346 (Article 69 of Law 8422) and the Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983 (Article 70 of Law 8422), and in that repeal, Article 26 of Law 6872 must be understood to have been included, which proves that the legislator also recognized their simultaneous validity in our legal system and, therefore, had to decree the repeal of subsection four of the former Article 346 and of Article 26 of Law 6872 in its entirety. On this last topic, it must be acknowledged—as the majority opinion of judgment 167-2011 did in its time—that this Third Chamber, in ruling 205-F-1995, at nine o'clock, on April seventh, nineteen ninety-five, implicitly recognized the validity of subsection 2) of the former Article 346 of the Criminal Code, when it reclassified the proven facts of extortion (concusión) to the crime of Illicit Enrichment in a case brought before it, despite the fact that Law 6872 had already entered into force at that time. Likewise, with the reform to the former Article 346 of the Criminal Code, introduced in 2004 with Law 8422, subsections 1), 2), and 3) of said rule were neither tacitly nor expressly repealed, since ordinals 69 and 70 of the aforementioned law only expressly repealed the fourth subsection of that numeral and Law 6872 in its entirety, with the literal text of both rules requiring that the cited subsections 1), 2), and 3) be understood as in force: "Article 69.—Repeal of subsection 4) of Article 346 of the Criminal Code. Subsection 4) of Article 346 of the Criminal Code is hereby repealed. Article 70.—Repeal of Law No. 6872. The Law on the Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983, is hereby repealed" (The emphasis is from the original). See in the same sense, Legal Opinion 018-J-2000, of February seventeenth, two thousand, from the Office of the Attorney General of the Republic, in which, regarding the draft of the Law against Corruption and Illicit Enrichment, which was being considered by the Permanent Commission on Government and Administration, it was also established: "…16.- On Crimes: Through Chapter V of the Draft, entitled 'On Crimes,' a series of criminal offenses are created whose common denominator is the fight against corruption, recreating a wide range of circumstances to which the public official or servant is commonly subjected./ The total repeal of the Law on Illicit Enrichment of Public Servants (No. 6872) is also ordered, which contains a series of criminal offenses similar to those proposed in the draft; but it should be noted that some illicit acts that are similar to those intended to be incorporated always remain in force within the Criminal Code…"(The emphasis is ours)." On the other hand, it must be noted that the scope that the Court of Appeal grants to ruling 2001-11584, of eight hours and fifty-three minutes, of November ninth, two thousand one, from the Constitutional Chamber, for the non-application of the former rule 346 of the Criminal Code, does not derive from the text of the aforementioned judgment, since in it, with respect to the argument of tacit repeal of the cited Article 346, used by the consulting legislators, it was established: "Tacit repeal of Article 346 of the Criminal Code. Finally, Article 68 of the draft law is consulted, because said numeral introduces confusion related to the principle of legal certainty. The rule takes for granted the validity of the subsections it does not repeal, despite the fact that with the enactment of Law No. 6872 of June 17, 1983, 'Law on Illicit Enrichment of Public Servants,' the legislator had already ordered the repeal in Article 32 of that law. For the consultants, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are violated. Certainly, the provisions that oppose Law number 6872 of June 17, 1983, were repealed as provided in its Article 32, but the verification of which provisions it affected and whether they included subsection 4) of Article 346, now repealed by Article 68 of the consulted draft, is not a question of constitutionality on which this court must render its opinion…", that is, that Jurisdictional body recognized the Judges' discretionary power to interpret the validity of such subsections, who, through the study of both regulatory bodies, could determine if they contradicted each other, given that if those alleged contradictions were not verified, the rule of the former 346, with the exception of the fourth subsection, remained in force, noting in the second-instance reasoning that the Judges determined the non-validity of the rule based on supposed incompatibilities between both articles, although without specifically determining which were the contradictions or contrasting both rules in their study, as the Trial Court did in its time in the sub judice case, from folios 000016061 to 00016063 of tome XXXII of the case file. In summary, upon verifying in this specific case the defect of erroneous application of the former Article 346 of the Criminal Code, it is appropriate to annul the judgment, concerning the accused [[Name13] ] and to remand this process to the Court of Criminal Appeal, so that with a new composition, it may proceed according to the applicable law." As observed, the validity of Article 346 subsection 3) of the Criminal Code is an issue that was expressly decided by the Third Chamber, concluding that the trial court did not commit an error in concluding that this rule was applicable to the case under examination. It is a position that the undersigned must adhere to when resolving the remand, but which in any case they also share, since the scope of application of Article 346 subsection 3) of the Criminal Code and of the referenced numeral 26 do not coincide in their content. While the former contemplates the acceptance of a gift presented or offered in consideration of the public official's office during the exercise of the position, the mentioned Article 26 criminalized something different, namely, a patrimonial increase whose licit origin the public official could not prove. Thus, subsection a) of numeral 26 contemplated the acquisition of assets of any kind or nature without being able to prove their licit origin, and subsection c), enrichment in any way, as an exclusive consequence of the position, without accrediting the legality of the increase in fortune and the verisimilitude of the invoked sources of resources. Whereas in Article 346 subsection 3) of the Criminal Code, the action is circumscribed to the acceptance of the retribution or the promise thereof under certain circumstances (in consideration of the office and during its performance), and it is even plausible that the material receipt of the gift constitutes a subsequent unpunished act (this is the case of the acceptance of the offered gift), Article 26 criminalizes the enrichment that actually took place, where the determining factor is the public official's impossibility to demonstrate the legitimate origin of the experienced patrimonial increase. Even though subsection c) speaks of enrichment as an "exclusive consequence of the position," it suffices to read the complete subsection to conclude that it contains a legal presumption, according to which all of the public official's assets that they cannot justify will be considered obtained on occasion of the position held. In other words, in this scenario, the typical action is not to avail oneself of the position to enrich oneself, but to increase one's assets without any justification, a hypothesis that, besides being clearly unconstitutional, is mutually exclusive of the one provided for in numeral 346 subsection 3) of the [Name32]. Therefore, the ground is declared without merit." Regarding the interpretation of the TALM and its scope, special mention must be made of the Inter-American Convention on Mutual Assistance in Criminal Matters, signed in the City of Nassau, Bahamas (hereinafter the Nassau Convention) on May 23, 1992, but ratified by Costa Rica, through Law 9006, only on January 3, 2012, because although that text as such would not have the virtue of being binding, having been ratified after the issuance of the first-instance judgment in this case, the fact is that, by strict application of Articles 31, 32, 53, and 64 of the Vienna Convention on the Law of Treaties, an unratified treaty remains part of “jus cogens,” and can therefore be used as an instrument of interpretation, provided it does not contravene the rules of international law. Having clarified this point, it should be noted that the aforementioned Nassau Convention, which is the precursor to the TALM, also contains similar rules regarding the application and scope of the Convention (Article 2), the designation of the Central Authorities of the contracting countries (Article 3), as well as the obtaining of evidence in the requested countries (Article 4), highlighting, for what is of interest, the rule contained in the cited numeral 4: “…The assistance referred to in this Convention, taking into account the diversity of the legal systems of the States Parties, shall be based on requests for cooperation from the authorities responsible for the investigation or prosecution of crimes in the requesting State” (Emphasis supplied). That is, both the TALM and the Nassau Convention establish that the requests made to the Central Authorities, be they the Ministry of Government and Justice, the Office of the Attorney General (Procuraduría General), the Office of the Public Prosecutor (Fiscalía General), or any governmental entity freely chosen by the Signatory States, are procedures carried out solely through “requests for cooperation” or “assistance,” but never do both normative bodies refer to the term “jurisdictional resolutions between Authorities” of investigation or prosecution, since these are requests made to the Requested State, which are processed in accordance with its domestic law (Article 10, first paragraph of the Nassau Convention). In this regard, precisely, ruling 2011-11969, at fourteen thirty-four hours, on September seven, two thousand eleven, from the Constitutional Chamber, issued regarding the constitutionality of the bill for the Law Approving the Nassau Convention, held that: “…The Convention is composed of forty articles, and was signed in the City of Nassau, Bahamas, during the twenty-second regular session of the General Assembly of the Organization of American States, on May 23, 1992. The project proposes a multilateral response aimed at combating the scourge of organized crime; updating, improving, and homogenizing the domestic legislation of the Inter-American System. Mutual assistance covers investigations, trials, and proceedings in criminal matters concerning crimes over which the requesting State has jurisdiction (Article 2). It is indicated that the principle of dual criminality is enshrined, insofar as assistance shall be provided even if the act giving rise to it is not punishable in the requested State but is—with a penalty exceeding one year—in the requesting State, except in the case of the application of precautionary measures (Articles 5 and 6). The procedural acts for which assistance shall be provided are listed, including the transfer of detained persons (Article 7) and the possibility of denying the requested assistance (Article 9). It also regulates the procedure for requesting, processing, and executing assistance (Articles 10 to 16); the manner in which resolutions, orders, and judgments shall be notified, and the appearances of experts and witnesses (Articles 17 to 23); the manner of sending information and records (Articles 24 and 25); and the actual procedure of assistance (Articles 26 to 31). Finally, the final clauses are listed (Articles 32 to 40), which allow States to formulate reservations, and regulate the ratification and entry into force of the Convention. The broad possibilities available to States to deny assistance when they deem it appropriate must be highlighted, as well as the important figure of the transfer of detainees, which—being a temporary measure—is far removed from the extradition process and significantly facilitates the purposes of the Convention. In general, it can be stated that this instrument for interstate assistance in criminal matters is a legal tool that makes it possible to guarantee the application of criminal law in a society where criminality is increasingly more organized and transcends borders. The subscription of this Convention allows American states to facilitate the application of criminal procedures, especially in cases where there are no bilateral treaties. It must also be clearly understood that the treaty must be interpreted in accordance with domestic regulations on the matter (in particular Articles 5, second paragraph; 7, subsection i; and 20, subsection c, which are optional provisions; and Article 24, subsection 2, which requires an order from a national judge under domestic regulations), and that all situations not contemplated in the Convention shall be supplemented by the legal system in general, including for this purpose the various international instruments in force in criminal matters…”(Emphasis supplied). The highest constitutional body of our country concluded, regarding the bill approving the Nassau Convention—which subsequently became law of the Republic and remains in force today—that Costa Rica, as a State from which assistance is requested (Requested State), must provide collaboration or assistance in accordance with its domestic regulations, using its traditional lawful means to safeguard the rights of those for whom cooperation is requested, and even emphasizing the use of those means in force in the country to protect the rights of the subjects whom the evidence could harm. The ruling in question did not refer at any time to the formal requirements necessary to request as a Requesting State, nor even less to the need for a court endorsement or order at the time of requesting assistance, which was indeed contemplated for those cases in which evidence must be gathered in our territory, as part of the obligations acquired upon signing the Treaty as a Requested State. In this regard, note that the ruling refers to Articles 5, second paragraph; 7, subsection i; and 20, subsection c of the Convention as optional provisions of the State from which legal assistance is requested (Requested State), and to rule 24, subsection 2 of that same normative body as the sole requirement under which the remittance of documents, information, and records requires, on the part of Costa Rica as a Requested State, the respective judicial order. It is reiterated that in consideration of the Nassau Convention project, the precursor of the TALM, our highest constitutional body never indicated as a prerequisite for the validity of a Costa Rican request for cooperation to other Central American States and Panama, the requirement of an endorsement or jurisdictional order emanating from a judge to make requests before the other Signatory Countries. Rather, the requirement for a jurisdictional order was determined solely and exclusively for those cases in which our country is requested to provide information to those States requesting assistance. That is, it is a line of reasoning clearly consistent with the purpose of the Convention, as it seeks absolute respect for the domestic regulations of each contracting country, with assistance being a mechanism for help in merely administrative evidence gathering (obtención de probanzas). Costa Rica or any other country party to the Convention as a Requesting State cannot, without violating the principle of sovereignty, order the Requested State to gather evidence through a jurisdictional order, since the manner in which assistance is provided is the prerogative of the Requested State, according to its internal provisions. In the Costa Rican case, such assistance, once processed by the Requesting State, could well be gathered with the formalities required in rule 24 of the Political Constitution, by strict application of numeral 24 of the Nassau Convention, which reads: “In cases where assistance is appropriate under this Convention, upon prior request and in accordance with domestic procedure, the requested State shall provide the requesting State with copies of public documents, records, or information held by the governmental agencies and departments of the requested State./ The requested State may provide copies of any document, record, or information held by a governmental agency or department of that State which is not publicly available, to the same extent and subject to the same conditions under which they would be provided to its own judicial authorities or other law enforcement authorities. The requested State may, at its discretion, deny totally or partially a request made under this paragraph” (Emphasis supplied). As is evident from rule 24 of the Convention and the aforementioned Constitutional Chamber ruling 2011-11969, obtaining evidentiary elements in Costa Rica as a Requested State must be done in accordance with the legal provisions of our legal system, such that if domestic law establishes, as a requirement, the issuance of an order from a Judge to access the requested information, its issuance shall be indispensable. However, that same course of action is not applicable in the scenario where Costa Rica requests information from another country (Requesting State), as is evident from the same cited ruling 2011-11969: “…When faced with the potential provision of assistance that could be considered harmful to the fundamental rights of the subject of the collaboration, the traditional remedies provided for the protection of such rights in our legal system may be used. For the foregoing reasons, this is an instrument that conforms to basic constitutional values and principles, and is therefore substantially in accordance with the parameter of constitutionality…” (Constitutional Chamber of the Supreme Court of Justice, ruling 2011-11969, at fourteen thirty-four hours, on September seven, two thousand eleven. Emphasis supplied). Added to the foregoing body of interpretation, it is also notable that the TALM, being derived from the Nassau Convention and adopting the same mechanism for obtaining evidence in the Requested States, in no way presents conflicts of constitutionality, according to the criterion expressed by the Constitutional Chamber in ruling 1997-04711, at sixteen twenty-one hours, on August nineteen, nineteen ninety-seven, which resolved a constitutional question on the bill for the Law Approving the Treaty of Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM), now current law of the Republic. The aforementioned ruling 1997-04711 established in its interpretation, firstly, the purposes of the Treaty, and secondly, the questions regarding the constitutionality of the evidence-gathering mechanism once the Requesting State’s request is received in Costa Rica as the Requested State. Finally, our Constitutional Chamber determined the lack of any conflict with the Constitution, even if the Costa Rican Office of the Attorney General (Procuraduría General Costarricense) is assigned administrative functions. Indeed, the cited ruling, for what is of interest, determined: "…IV. Concerning the merits of the matter, it is deemed appropriate to render a non-binding opinion, to point out that through the Treaty, according to the Executive’s statement of motives, it is intended to fulfill the following purposes: 'The States of the Central American Isthmus have signed this Treaty with the aim of creating a legal framework that allows them to assist each other mutually in criminal matters that are aired in their respective Courts of Justice. However, the signatory countries have considered that this assistance is limited to ancillary aspects of the process, which do not detract from the sovereign duty of each State to administer justice. In this sense, its purpose is to facilitate the execution of a procedural act in those cases where the collaboration of authorities of another State is necessary. The assistance covers the following aspects: taking of witness statements, obtaining and executing means of evidence, notification of judicial rulings, execution of precautionary measures, locating persons, as well as any other type of assistance agreed upon between two or more States Parties. However, considering that there are certain competencies that require a specific Agreement for their execution, this Treaty excludes from its scope of application matters related to tax matters, the detention and extradition of persons, the transfer of criminal proceedings, and the transfer of convicts for the purpose of serving criminal sentences in other countries.'/V. Firstly, it is simply worth clarifying that, although the text of the convention permits the execution of measures capable of potentially harming fundamental rights, such as, for example, access to data, the apprehension or seizure of objects; the delegation of the action to a jurisdictional authority and the mandatory subjection to the domestic regime of each country on the matter eliminate any possible contradiction with the Constitution./Finally, the Chamber also does not find it contrary to the Constitution that the Office of the Attorney General of the Republic was designated as the 'central authority' for processing requests for assistance, because the treaty itself clarifies that it does so as an administrative authority (Article 3) and its function consists of forwarding the requests to the competent judicial authority, which will ultimately execute the requested act…”(Constitutional Chamber of the Supreme Court of Justice, ruling 1997-04711, at sixteen twenty-one hours, on August nineteen, nineteen ninety-seven. Emphasis supplied). A criterion of constitutionality that, moreover, was reiterated in judgment 2001-04248, at fifteen hours and four minutes, on May twenty-three, two thousand one, from the same Constitutional Chamber, when resolving a claim of unconstitutionality against Article 13 of the TALM. On that occasion, our highest constitutional body, upon studying the procedure adopted by the Treaty for obtaining documentary evidence, established that consular processing was unnecessary as a mechanism for evidentiary validation, provided that diligence had been carried out in accordance with the domestic law rules of the Requested Country, stating: “…From the reading of the questioned article, this Court verifies that it sets forth the guidelines for sending copies of public documents as a consequence of a request for assistance made by any of the States party to the Treaty of Mutual Legal Assistance in Criminal Matters, indicating that the documents shall be provided under the same conditions under which they would be provided to its own law enforcement authorities. These documents must be prepared by the official of the requested State in charge of their custody and certified by the Central Authority, by means of a seal whose format appears in the annex to this Treaty. That is, even though the rule exempts the copies of the requested documents from processing before the consular notary, the fact is that it establishes a mechanism that guarantees the veracity and authenticity of their content by requiring that such documents be created by the official responsible for their custody and certified exclusively by the Central Authority (as indicated for each Contracting State in Article 3 of the Treaty), by means of the seal designed for this purpose; a mechanism that is consistent with the principle of due process insofar as, in each case, the competent authorities of the requested State have prepared and exercised control over the actions indicated in the rule, and the document has been certified by the respective central authority, so that the requirements of due process at the constitutional level have been satisfied…” (Constitutional Chamber of the Supreme Court of Justice, ruling 2001-04248, at fifteen hours and four minutes, on May twenty-three, two thousand one). A position that reaffirms the thesis that the mechanism for obtaining evidence must be that followed by the domestic legislation of each Requested Country, and the prior issuance of a jurisdictional order originating from the Requesting Country cannot be interpreted as a validity requirement. To further elaborate, this same approach was reiterated more recently by the Constitutional Chamber in ruling 2011-002074, at seventeen forty-three hours, on February fifteen, two thousand eleven, when resolving a claim of unconstitutionality filed against Articles 2.5 and 12.1 of the TALM. In that ruling, although it was rejected outright, it determined regarding the request for assistance from the Requesting State that: “…It should be observed that the assistance provided for in the aforementioned Treaty covers the taking of witness statements, the obtaining and execution of means of evidence, the notification of judicial rulings, the execution of precautionary measures, the location or tracking of persons, as well as any other type of assistance agreed upon between two or more States Parties. Rules which exclude from their sphere of application matters related to tax matters, the detention and extradition of persons, the transfer of criminal proceedings, and concerning persons deprived of liberty, with the objective of serving criminal sentences in other countries. Of course, even though the integral literal text of the convention empowers the potential execution of restrictive measures on fundamental rights, such as, for example, access by the competent jurisdictional authorities in accordance with the domestic law of each Social and Democratic State of Law to data, to the apprehension or seizure of assets; this subjection dismisses any contradiction with the Constitution, where what is relevant lies in the non-interference with the exercise of the natural function of entities of another Branch of Government (See resolution number 1997-04711, at 16:21 hours, August 19, 1997, Constitutional Chamber, Supreme Court of Justice)…” (In the same sense, Constitutional Chamber of the Supreme Court of Justice, ruling [Telf2], at fifteen hours and four minutes, on May twenty-three, two thousand one). Finally, from the letter of the TALM and the principle of the sovereignty of States, it is possible to conclude that the evidentiary elements gathered in the Requested States, provided they have been formally processed by the Central Authorities previously established in the Contracting States and that the formal internal procedures in their obtaining are followed, shall be valid, as Costa Rica has recognized, as part of the obligations acquired upon ratifying the Model Treaty on Reciprocal Assistance in Criminal Matters, in the report of April twenty-eight, two thousand eleven, sent to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, formed since the year two thousand by Ministers of Justice and Attorneys General of the member countries of the Organization of American States. In that document, our country admitted before the rest of the Signatory States of that normative body, the existence and validity of national and international procedures assumed by Costa Rica, aimed at obtaining evidentiary elements in the investigation of criminal proceedings, among which the mechanism accepted with the ratification of the TALM stands out widely. No limitation or reservation in that regard is denoted or derived from that report, but rather a strict adherence to the principle of good faith in the interpretation of the Treaty (Article 31 of the Vienna Convention on the Law of Treaties), by registering as part of the Costa Rican legal system: “...various means for receiving requests and processing them, one at the domestic level, and the rest at the international level, which are derived from the signing of conventions on different matters that in turn allow reciprocal judicial assistance:/1.-At the level of national legislation, for use in those cases where no international convention exists that provides the corresponding rules on assistance, we have the provisions set forth in Article 705 and following of the Civil Procedure Code, which establishes the Title on “Efficacy of foreign judgments and awards,” a mechanism devised for providing international judicial assistance./ Likewise, we have Law No. 7786 of April 30, 1998 (Law on Narcotics, Psychotropic Substances, Unauthorized Drugs, and Related Activities), amended by Law No. 8204 of December 26, 2001, related to the topic of drugs, whose numeral 8 briefly and concisely provides competencies to provide and obtain judicial and police collaboration in this matter. Likewise, Article 65 of the Criminal Procedure Code attributes to the Public Prosecutor’s Office (Ministerio Público) the possibility of forming joint investigation teams with foreign or international institutions./2.-Regarding the system of judicial assistance predetermined by international conventions, it is necessary to point out that Costa Rica does not have a single central authority, but rather has several central authorities to fulfill its international obligations, in accordance with the treaties in force, for the sending and receiving of requests for mutual assistance in criminal matters./After more than three years of discussions with the Ministers of Foreign Affairs and Worship, Ministers of Justice, and the Attorney General of the Republic, the President of the Republic [Name10] and the Minister of Justice [Name11] issued Decree Number 34501-J, published in La Gaceta on May 7, 2008, designating the Office of the Public Prosecutor (Fiscalía General) as the central authority for the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, ratified by Costa Rica since the year 2002. Likewise, the President of the Republic and the Minister of Justice approved Decree Number 34543-J, in which the Office of the Public Prosecutor of the Republic is designated as the Central Authority for channeling reciprocal judicial assistance and technical cooperation, provided for within the framework of the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. The Public Prosecutor entrusted the OATRI with the task of central authority in these two conventions by administrative resolution number 74-08 of June nine, 2008, and by administrative resolution number 167-2008 of September 8, 2008./The system imposed by the United Nations Convention against Transnational Organized Crime and the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, establishes the intermediation of the central authority, in these two cases the OATRI, which will have the obligation to process the request for assistance./The central authorities in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and in the Treaty of Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, and Panama, are the Costa Rican Institute on Drugs (Instituto Costarricense sobre Drogas) and the Office of the Attorney General of the Republic (Procuraduría General de la República), respectively./ Regarding the Central American Treaty on Mutual Legal Assistance in Criminal Matters, the system imposed by said convention establishes, in principle, the intermediation of a central authority with sufficient administrative capacity, which will be in charge of processing the request for assistance. Said central authority shall proceed to forward it to the competent jurisdictional authority, which will finally process the judicial request made, all in accordance with the rules in force in the Requested State’s legal system. This task, in the case of Costa Rica, currently falls to the Office of the Attorney General of the Republic, in accordance with Article 2 of the cited international text, with the Office of the Public Prosecutor of the Republic being the recipient of requests at the national level for the Judicial Branch...” (Report submitted by Costa Rica, on April twenty-eight, two thousand eleven, to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, at Http://www.oas.org/juridico/mla/sp/index.html. Emphasis supplied), the latter cooperation mechanism has remained in force, even though it has been reviewed on several occasions by the Costa Rican Constitutional Chamber, through the aforesaid rulings.

Based on the foregoing and in strict adherence to the purpose of the TALM, this Chamber considers, by the stated majority, that the procedure used to obtain the bank records of the company [Name [Nombre12]] in Panama was protected by law, inasmuch as the Costa Rican Public Prosecutor's Office (Ministerio Público), as an organ of criminal prosecution, was empowered by numerals 62 of the Code of Criminal Procedure (Código Procesal Penal) and 2 of the Organic Law of the Public Prosecutor's Office (Ley Orgánica del Ministerio Público) to manage assistance and investigation under the terms of application of the TALM, before the Costa Rican Office of the Attorney General (Procuraduría General Costarricense), as happened in this particular case with the request for assistance directed to the Republic of Panama, making the issuance of a Costa Rican jurisdictional order unnecessary at the time of requesting it. Now, regarding the administrative and non-jurisdictional formalities that should have been fulfilled when processing the respective cooperation through the Costa Rican Central Authority to the Requested State, it remains to be noted that Article 3 of the TALM is what determines the procedure to be followed in the Requesting State, by regulating that the provision of evidence between the Contracting Countries shall be governed by the domestic law of each country, which, through the competent Central Authority "with sufficient administrative capacity" ("con capacidad administrativa suficiente"), shall have the function of processing requests for assistance from the various Signatory Countries. Immediately following that definition, Article 4 of the TALM details the requirements to be satisfied in the written request presented to the Requested Country, among which are distinguished: "a) The competent authority requesting the assistance. b) Purpose of the request and description of the assistance requested. c) Description of the facts constituting the crime that is the subject of the assistance in accordance with the laws of the Requesting State. The text of the pertinent legal provisions must be attached or transcribed. d) Detail and basis of any particular procedure that the Requesting State wishes to be carried out. e) Specifications regarding the term within which the Requesting State wishes the request to be fulfilled. 2.- In pertinent cases, the request for assistance shall also include: a) Available information on the identity and presumed whereabouts of the person or persons to be located. b) The identity and presumed whereabouts of the person or persons to be notified and the link those persons have with the case. c) The identity and presumed whereabouts of those persons required for the purpose of obtaining evidence. d) The description and precise address of the place subject to search and of the objects to be seized; and e) Any other information that is necessary for the execution of the request for assistance…" (Emphasis added). Deriving from that rule, as the first requirement, the specification of the "Competent Authority" (Autoridad Competente) requesting the assistance in the Requesting State. It cannot be inferred from that phrase, as the Court of Appeals of Judgment (Tribunal de Apelación de Sentencia) seems to understand in the contested judgment [Telf1], the formality of the prior issuance of a "judicial decision" (resolución judicial) issued by a "competent jurisdictional authority" of the Requesting State, because this fourth article refers to a "competent authority," immediately after the State Parties to the Treaty designate, for each of their territories, the respective administrative Central Authorities responsible for centralizing and directing the requests for assistance from their counterparts. Likewise, it is unquestionable that subsection b of Article 4 of the TALM refers to the term "purpose of the request and description of the assistance requested" ("propósito de la solicitud y descripción de la asistencia solicitada"), and not to the concepts of "resolution," "ruling," or "jurisdictional order" ("resolución," "fallo," "orden jurisdiccional"). Therefore, the petition of the Requesting State could not mean that a Judge of that State orders the Central Authority of the Requested State to obtain evidence in its territory. First: because judicial action in any State is limited by the very concept of jurisdiction, understood as: "the public function of administering justice, emanating from the sovereignty of the State and exercised by a special organ (...) As jurisdiction is an emanation of the State's sovereignty, or better, sovereignty applied to the function of administering justice, we can say that its limits are the same as those of sovereignty, i.e., a limit regarding territory and a limit regarding persons; where and to whom it applies…" (DEVIS [Nombre13], Teoría General del Proceso, Editorial Universidad, Buenos Aires, 1984, p.73 and 99). Thus, if that resolution exceeds the population and territorial limits over which the Judge can act, an overreach would have occurred, which would have the effect of invalidating the evidence obtained. Second: unlike a jurisdictional resolution that has the virtue of being enforceable even by force, the action of assistance or collaboration in the Requested country is discretionary or optional, since if the request shows non-compliance with one or several of the requirements stipulated in Articles 4 and 6 of the TALM, the Requested State may condition its sending or, alternatively, refuse entirely to send the evidence. Thirdly, the issuance of a judicial order emanating from the Requesting Country implies an inappropriate interference by the petitioner in the domestic law of the country from which assistance is requested, which entails an inconceivable violation of the principle of sovereignty of States.

Having clarified the questions regarding the powers granted in the TALM, it is necessary to analyze the domestic legislation of Costa Rica regarding the right to privacy of communications and the necessary issuance of a judicial order to access that information. Thus, although Article 24 of the Political Constitution (Constitución Política) establishes that: “…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 amendment shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall determine in which cases the Courts of Justice may order the seizure, search, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance (...) Judicial resolutions protected under this rule must be reasoned and may be executed immediately. Their application shall be the non-delegable responsibility of the judicial authority” (Emphasis added), it is true that, in our territory, Article 1 of Law 7425 (Ley 7425), Law on the Search, Seizure, and Examination of Private Documents and Intervention of Communications (Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones), grants exclusive competence to order the search and seizure of private documents to Costa Rican Judges, who, by means of a substantiated judicial resolution, can order such diligence, authorizing “…the search, seizure, or examination of any private document, when it is absolutely indispensable for clarifying criminal matters submitted to their cognizance…” (Article 1 of Law 7425. Emphasis added), and being able, as part of their powers, to “…order, ex officio, at the request of the police authority in charge of the investigation, the Public Prosecutor's Office, or any of the parties to the process, the search, seizure, and examination of any private document, provided it can serve as indispensable evidence in the commission of some criminal conduct…” (Article 2 of Law 7425).

Based on the foregoing premises and on the treatment that our legal system grants to the right to privacy of communications, it is evident that our Judges lack the power and jurisdiction for their provisions, embodied in a judicial resolution ordering the breach of the fundamental right of secrecy of communications, to transcend our territory. Moreover, they also lack the legal authority to direct public officials of another country in obtaining necessary evidence for the investigation of criminal cases, since their coercive powers are limited to Costa Rican territory (Cf. Article 1 of the Organic Law of the Judicial Branch, Ley Orgánica del Poder Judicial) and to personal action, as comprised in Article 2 in fine of Law 7425.

In light of these premises, for the majority of this Chamber, the procedure adopted by the TALM aimed at obtaining evidence in the investigation of criminal matters is in accordance with the law. This is because, if the requirement of a judicial order in Costa Rica were hypothetically assumed, in keeping with the safeguarding of the rights of the intervened party, our Costa Rican Judges, as part of the obligations contained in our domestic law, would even have had to notify and personally deliver “…a copy of the judicial order authorizing it, to the person whose documents are searched or examined. An act shall be drawn up of this, a copy of which shall also be delivered to them upon completion of the diligence...” (Article 4 of Law 7425. Emphasis added). This action is unthinkable when dealing with the jurisdiction of another country.

On this matter, precisely, this Third Chamber, in vote [Telf3], at ten o'clock, on September twenty-second, two thousand eight, when resolving a case in which, to carry out an anticipated jurisdictional proof (anticipo jurisdiccional de prueba), the Costa Rican Criminal Judge traveled to a Consular Office, established that such diligence could not be carried out in a territory other than our own, stating that: “…Regarding the lack of competence of the Criminal Judge who directed the act (…) In relation to this issue, what is established in Article 132 of the Code of Criminal Procedure is basic, which clearly states that: “…The court may be constituted in any place within the national territory, when it deems it indispensable to directly know decisive evidentiary elements in a case under its cognizance and competence (…) It is evident that a Judge cannot perform a jurisdictional act in another country, since such power to resolve finds its limit in the territory where it was granted, and to that extent, the action of Judge [Nombre14] in traveling to Colombia to personally direct the statement that xxxx gave through an anticipated jurisdictional proof violated the principle of sovereignty of that country…” (Third Chamber of the Supreme Court of Justice, vote [Telf3], at ten o'clock, on September twenty-second, two thousand eight, emphasis added).

Now, regarding the issue of the order as a requirement for requesting assistance from Panama in the present case, the majority of this Chamber does not observe any defect to declare in the procedure followed to collect the bank movements of the accounts of the company [Name [Nombre12]] in Panama. This is because the regulations contained in Article 24 of the Constitution and Law 7425 only refer to those cases in which the obtaining of evidentiary elements found in Costa Rica is sought, or failing that, when our country acts as the Requested State, according to the TALM, insofar as it is a judicial resolution that can well be executed by force, a requirement not contemplated for cases in which our country acts as the Requesting State, since under no circumstances does the Costa Rican Judge have the legal power to give orders to foreign Authorities. In this regard, note that Article 12 of the TALM prohibits the Requesting States from imposing their domestic law, given that the Treaty is nothing more than an agreement in which the voluntary action and good understanding of the Contracting Countries prevail. These countries commit, through the signature of that Agreement, to act in the search for the requested evidence under their domestic law. It can be derived from the mentioned Article 12 in conjunction with Rule 4, both of the TALM, that the petition for the delivery of evidence between signatory countries must be made through the competent Central Authority of the Requesting State, explaining the facts under investigation, the alleged crimes for which assistance is being managed, its purpose, and the detail of the requested evidentiary elements. This is for the purpose of corroborating the requirement of dual criminality (bilateralidad) of the illicit conducts investigated and highlighting its denial or conditioning.

Having clarified this point, what remains is to analyze the procedure followed in the sub examine for obtaining the Evidence in Panama. Precisely, from the study of the case file, it can be deduced that on May twentieth, two thousand four, the Office of the Attorney General of the Costa Rican Republic (Fiscalía General de la República costarricense) petitioned, under the protection of Articles 2, 3, and 4 of the TALM; 62, 65, 154, 180, and 181 of the Code of Criminal Procedure; and 41 of the Political Constitution, for formal Mutual Legal Assistance (Asistencia Judicial Recíproca) (Cf. f.14-26 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]), before the Office of the Attorney General of the Costa Rican Republic, in which it requested to investigate all bank movements of account No. [Value [Nombre3]] at BAC International Bank in Panama, in the name of the company [Name [Nombre12]], file number 413986, “…from its opening until the present date, as well as the account opening file and all the documents that have been presented to the Bank by whoever is authorized on it…” (Cf. f.23 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]). It also requested that instructions be issued “…to the National Banking System of Panama (Sistema Bancario Nacional de Panamá) so that it indicates if the cited company [Name [Nombre12]] holds accounts or investments in any Bank, Brokerage House, or financial entity of any type, and the details of the same. If accounts exist, ALL documentation from the moment it was opened is necessary…” (Cf. f.24 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]], the capitalization belongs to the original. Emphasis added). This Organ, in accordance with the mechanism devised in the TALM, forwarded the petition administratively to the Central Authority of Panama, that is, to the Panamanian Ministry of Government and Justice (Ministerio de Gobierno y Justicia Panameño), not without first stating that: “…If an order from a competent judicial authority is necessary to collect the evidentiary elements, in compliance with the legal system of the Republic of Panama, the performance of the pertinent steps for that purpose is respectfully requested, for each of the Banks of the National Banking System of Panama, and especially at BAC International Bank (Panama Inc.)…” (Cf. f.11 and 27 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]. Emphasis added).

As part of the rules of Panamanian domestic law, the National Directorate for the Execution of Mutual Legal Assistance Treaties (Dirección Nacional para la Ejecución de los Tratados de Asistencia Legal Mutua), attached to the Panamanian Ministry of Government and Justice, sent the Costa Rican request via official communication No.193-DN-TALM-04, dated June first, two thousand four, to the Office of the Attorney General of that Nation (Procuraduría General de esa Nación). This, in turn, by unnumbered official communication of June ninth, two thousand four (Cf. f.29 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]), ordered the commissioning of the First Anti-Corruption Prosecutor's Office (Fiscalía Primera Anticorrupción) of the Office of the Attorney General of that Nation for the purpose of collecting the evidentiary elements requested by Costa Rica, in reference to account No. [Value [Nombre3]] of the company [Name [Nombre12]]. (Cf. f.23 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]). In what is of interest, that entity established that: “…The undersigned Attorney General of the Nation ORDERS: To agree to provide the required assistance within the terms permitted by national legislation, for which purpose the First Anti-Corruption Prosecutor's Office is commissioned” (Cf. f.27 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]. Emphasis added). Once the request became known in the mentioned Prosecutor's Office, it was ordered to carry out: “…Ocular Technical Inspection at BAC INTERNATIONAL BANK (PANAMA INC.), of account No.[Value [Nombre3]] of the Company [Name [Nombre12]]., with file number 413986, in order to inspect all checks that have been issued from that account, from its opening until the present date, as well as the account opening file and all documents that have been presented to the Bank, to know who is authorized on the same. The records of the indicated bank accounts are necessary from the moment it was opened, and must include signature cards, documents related to the account opening, account ledger cards, periodic account statements, records of deposits and withdrawals, instructions related to the receipt or transfer of funds to or from the account, whether by fax, email, or any means of communication. Correspondence to, from, or in favor of the account holder(s), memoranda related to the account, cashier's checks and documentation for the purchase of cashier's checks, balances, closing dates, inactivity, or any other document held for the cited account. All duly authenticated by the bank representatives…” (Cf. f.33-34 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]. The capitalization belongs to the original). In the same act, that entity appointed an expert for the purpose of verifying or ruling out possible irregularities in the Panamanian legal system. The ocular inspection diligence was carried out on Friday, July thirtieth, two thousand four, in Panamanian territory, by the First Anti-Corruption Prosecutor of the Office of the Attorney General of the Nation, Licenciada [Nombre15], who, at the request of expert [Nombre16], previously appointed for the performance of the diligence, seized the following documents: “a) The Account Statements of [Name [Nombre12]]. No. [Value [Nombre3]], from the month of August 2002 to May 2004. b) Account opening application for [Name [Nombre12]]; crossed communications. c) Copy of a money transfer made on April 28, 2004, for the amount of B/.1,060,000.00. d) Copy of deed No.2,054 of May 1, 2002. f) Copy of checks in the name of [Name [Nombre12]]…” (Cf. f.49 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Name [Nombre4]]. The capitalization belongs to the original).

Once the information was in the hands of the Panamanian Prosecutorial Authorities, in strict adherence to the domestic law of that country, it was reviewed by the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism (Unidad de Análisis Financiero para la Prevención del Blanqueo de Capitales y el Financiamiento del Terrorismo), attached to the Ministry of the Presidency of Panama (Ministerio de la Presidencia de Panamá), as cases UAF-04-06-004 [Name [Nombre12]]; UAF-04-06-005 [Nombre17]. Fischel R. y Cia.; and UAF-04-06-006 Harcourt Holdings S.A. had been reported as suspicious.

If observed carefully, the procedure followed in Panama was carried out in accordance with the domestic law of that country, since, before sending the respective information to Costa Rica, the requested accounts were also investigated in that Nation. Under the tenor of Article 2 of the TALM, in the unnumbered report of July fourteenth, two thousand four, from the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, dependent on the Ministry of the Presidency, the officials of that entity corroborated that the alleged crimes for which our country, as the Requesting State, was investigating those companies and the accused [[Nombre18] and [Nombre19]], were also typified in Panama as the Requested State, and the commission of possible criminal actions in that neighboring country was ruled out.

Precisely, as a result of the investigations carried out by the Panamanian State, the report sent to Costa Rica determined that: “…One of the clients appears published in a Costa Rican newspaper, where he is mentioned in an investigation for coercion (coacción), serious threats, forgery, concealment and destruction of documents related to the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social). /That the Office of the Attorney General of Costa Rica (Fiscalía General de Costa Rica) made a request for mutual legal assistance (asistencia judicial) filed by the Attorney General of Costa Rica to Panama regarding said individuals for illicit enrichment (enriquecimiento ilícito), embezzlement (peculado), and others. /That these cases have been requested from the UAF, through Official Communication No. 2772 of the First Anti-Corruption Prosecutor's Office of the Office of the Attorney General of the Nation of Panama. /In consideration of the point set forth above, we believe that this case has merit to be investigated by the competent authorities…” (Cf. f.134 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [[Nombre18]]. Emphasis added).

Based on the foregoing conclusions, it is possible to affirm that the sending of the information to the Office of the Attorney General of the Costa Rican Republic by the Requested State occurred once that Nation had corroborated the requirement of dual criminality of the conducts in both countries. If this verification had not occurred, under Article 6 of the TALM, Panama as the Requested State would have had the power to deny the assistance. This is an even greater reason to consider that, within the procedure contained in the TALM, the issuance of a judicial resolution that coercively decreed the obtaining of that evidence would have implied, without further reasoning, a flagrant violation of the sovereignty of the Panamanian State and of the powers that Article 6 of the TALM itself grants it as a Signatory State.

In short, it is the criterion of the majority of this Chamber that in the sub júdice, for obtaining evidence 588 in Panama, the order or endorsement of a Costa Rican Judge was unnecessary. Therefore, the claim of the Public Prosecutor's Office directed against evidence 588 collected in Panama through the TALM is upheld, and the contested judgment is annulled insofar as it acquits the accused [Name [Nombre20]], [Name [Nombre21]], [Name [Nombre2]], [Name [Nombre4]], [Name [Nombre3]], [Name [Nombre1]], and [Name [Nombre22]]. Consequently, the Court of Appeals of Criminal Judgment (Tribunal de Apelación de Sentencia Penal), with a different composition and in strict adherence to the powers granted in Article 465 of Law 8837, of May third, two thousand ten, must conduct a new comprehensive examination of this evidence together with the remaining evidence of the case.” (The highlighting is from the original).

As can be observed, on the occasion of the appeal for cassation filed by the Public Prosecutor's Office, the Third Chamber resolved the claim that the appellants formulate here, dismissing it. It not only concluded that Evidence No. 588 is lawful but also ordered that the ordered remand be carried out based on that premise. Hence, this court has no competence to resolve the point. This is a situation that is not surprising, since in proper appellate technique, the limits of the remand are defined by the reviewing body that orders it.

It is important to emphasize that although this decision, as well as others adopted by the Third Chamber, were not recorded in the operative part, this in no way releases these second-instance judges from the obligation to respect them, since the cassation judgment, like any other, is a logical-legal unit that must be understood integrally.

In addition to this, it is also necessary to add that we do not ignore that the criterion expressed by the Third Chamber in this matter differs from the one assumed by that same office (composed of titular magistrates) in case file No. 04-005356-0042-PE, specifically, in resolution No. 499 at 11:45 a.m. on May 11, 2011, in which, by a majority vote, the nullity of the evidence collected 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.) was declared, as well as that of the evidentiary elements deriving from it. However, the contradiction that may arise between the aforementioned judgments, or between this resolution and the mentioned No. 499, is a problem that eventually, if that were the case, the cited Chamber must resolve. What corresponds to this Court of Appeals of Criminal Judgment is to examine the appeals in the terms ordered by the higher body for this specific case, namely, starting from the premise of the legality of Evidence No. 588.

Having said the above, the undersigned conclude that the other defects claimed in the appeals (where other additional arguments presented by the trial court are questioned for, despite not having had an order issued by a Costa Rican judge, legitimizing Evidence No. 588; that is, they are additional reproaches but always related to questioning the legality of that Evidence No. 588—legality that, it is reiterated, was already established and declared by the Third Chamber), in light of the criterion expressed by the Court of Cassation for this case, would be inconsequential, to the point that—even hypothetically admitting their existence—what was resolved would remain unaffected.

The a quo stated that there was no resolution from a national judge lifting the bank secrecy of the account of [Name [Nombre12]] in the case known as CAJA-FISCHEL and that it was indispensable (as can be extracted from folios 15,336 and 15,337 front of volume XXXI).

Nonetheless, for the majority vote, evidence No. 588 (which is, in essence, documentary evidence related to the aforementioned bank account and which arrived in the country in September 2004), is lawful, so the following will be stated: i) [Name [Name23]], in his personal capacity and as unlimited general agent and sole shareholder of the company [Name [Name12]]., incorporated in Panama, authorized on May 17, 2010, the obtaining and use of the bank documentation obtained in that country corresponding to the current account No. [Value [Name3]] of BAC International Bank (Panama) Inc., of his represented entity (f. 15,338 front to 15,372 front); ii) there is independent evidence prior to No. 588 that also guided the same line of investigation: "See, for example, that according to the journalistic publications of evidence No. 592.9 'Monitoring of print media from December 9 to 31, 2004,' folios 1, 5, and 6 to 11, it is through a report by [Name24] and [Name25], journalists from a nationally circulated print media outlet, that on April 21, 2004, readers are informed about a house located in [...] that the then Executive President of the Caja Costarricense del Seguro Social and defendant in this process, [Name [Name4]], was renting from the person who at that time was the financial manager of Corporación Fischel. Also in the publication of April 27, 2004, at folio 36, evidence No. 682.1, the appearance of [Name [Name4]] before the Congress of the Republic is made known following his resignation as Executive President of the Caja Costarricense del Seguro Social, at which time the accused acknowledges having offered $700,000 to buy the house [...] that was rented to him by [Name [Name26]], noting that in August and October he visited the dwelling, which was the only one that he and his family liked, a house that was later acquired by the former financial manager of Corporación Fischel, a participant in the sale of goods and services to the Caja Costarricense del Seguro Social for million-dollar sums, it being indicated at that opportunity that the newspaper in charge of disseminating these facts had requested and received from the C.C.S.S. information regarding the different contracts described. The foregoing is important because according to the request of folios 14 to 28 of evidence No. 588, said information was managed by the Fiscalía before the Procuraduría General de la República on May 20, 2004 -according to the stamp on folio 2- and the bank documentation related to the account of [Name [Name12]]. was received by the Fiscalía on September 10, 2004, so the existence of two independent and prior evidentiary sources to said investigative management by the Ministerio Público is clearly noted. Observe that the revelation of the facts based on the original journalistic report and the later publications, according to evidence No. 592.9 and No. 682.1, date back to April 2004, that is, more than a month before the Fiscalía took the initiative to collect the described bank information, so it could even be stated, without room for error, that it was the disclosures in the national press that triggered the judicial investigation of the well-known Caja-Fischel case. On the other hand, the defense also questions the request and the order to lift bank secrecy issued by the criminal judge regarding the bank account of [Name [Name27]]. at Banco Cuscatlán and the authorization of [Name [Name2]] and [Name [Name28]] to obtain information from said account, issues that have already been analyzed and, therefore, are now only brought up to address the allegation that this evidence is also unlawful -according to the defense- for being dependent on the bank documentation of the account of [Name [Name12]].. Again, it must be noted that, in the opinion of this panel, the bank documentation that makes up evidence No. 588 is lawful but, as an intellectual exercise aimed at guaranteeing the rights of the defendants and due process, hypothetically assuming that in the collection of evidence No. 588 there was no bank secrecy lifting ordered by a jurisdictional body and that there was also no legal and valid authorization from the account holder or its administrator for the obtaining and use of such documentation, there are still prior and independent sources to that information. As explained previously, the data revealed by the national press gestated the prosecutorial investigation in the referred 'Caja Fischel' case and, in the scenario now assessed, a similar conclusion fits. The Fiscalía's requests for the lifting of bank secrecy of the account of [Name [Name27]]. at the various financial entities that make up the Grupo Cuscatlán are from September 17 and 29, 2004. The resolutions granting them date from September 21 and 29, 2004, and the requested bank information is delivered to the prosecuting body on September 28 and 29, 2004, according to notes at folios 5 and 90 of Volume I. However, before the Fiscalía became aware of the requested data, the national media were already revealing details about [Name [Name27]]. and his connection with [Name [Name29]] and directors of the Instituto Costarricense de Electricidad. Note that the report by journalists [Name30], [Name31], and [Name32], folio 19 of evidence No. 592.1, although published on September 28, 2004, in a nationally circulated media outlet, the information had been compiled since the previous day, that is, September 27, 2004. The news communicates that two ICE directors had received $3.6 million that came from [Name [Name33]], indicating the money transfers to [Name [Name34]] and to [Name [Name22]] through the company of the latter, [Name [Name35]], and the wife of the second, Mrs. [Name [Name36]]. It was said that the funds were transferred from the account that [Name [Name27]] maintained at Cuscatlán International Bank and that he had received such monies from the account of [Name [Name33]] at Banco ABN AMRO. It was also mentioned that representatives of the journalistic outlet, on September 27, had contacted [Name [Name36]] by telephone at her home and she had told them that she would give information later, although she later did not answer their calls, while [Name [Name34]] did not respond to messages and [Name [Name22]] explained that he had hearing problems, also attempting -unsuccessfully- to consult [Name [Name3]], although there was communication with [Name [Name37]] and with [Name [Name2]]. It was reported that from the account of [Name [Name27]]. payments had been made to companies, persons, and politicians, citing the transfer of $100,000 to [Name [Name38]], who explained that it was a donation from [Name [Name29]] to the political campaign of leader [Name39]; reference was also made there to monies received by [Name [Name40]] that passed through the account of [Name [Name12]]. of the president of Corporación Fischel, [Name [Name23]], and to other persons consulted by the journalists. At folio 20 of evidence No. 592.1 (the originals of which appear added at folios 2 and 3 of Volume I) there also appears the publication of the journalistic interview conducted that same day with [Name [Name38]], who acknowledged having received the contribution from [Name [Name29]] to the campaign of [Name39] after a meeting at which the accused [Name [Name3]], manager of said company, and a 'French gentleman' whose name he told the journalists he did not remember, had been present. On the other hand, at that moment, what the described bank documentation reveals are the transfers from [Name [Name33]] to [Name [Name27]], but not its detailed analysis, which is possible much later with the intervention and study of the experts from the Accounting and Financial Studies Section of the OIJ. Hence, it cannot be dismissed that in the interim, that is, while the bank data marks new paths in the investigation and its concordance with each of those implicated, other information-revealing sources are also emerging independently of the cited source No. 588. There are multiple elements that could be cited, but let the following serve as an example:

- all the information compiled by the declarants [Name [Name41]] and [Name [Name42]], employees of Corporación [Name [Name29]], who recount meetings held with the accused [Name [Name3]] in early October 2004 following the journalistic revelations linking [Name [Name29]] with payments to public officials and how, in the second meeting they held with [Name [Name3]], upon asking him about what was reported by the newspapers (regarding payments to [Name [Name43]] sister of [Name [Name3]], to a son of this lady and to [Name [Name1]], by [Name [Name27]], all with the intervention of [Name [Name3]]), he accepted having participated in such payments and told them about 4 persons to whom they had been made, namely: [Name [Name22]], [Name [Name1]], [Name [Name34]], and [Name [Name4]], the last of whom had not even been mentioned by the journalistic information; - evidence No. 110 consisting of the authorizations that since September 20, 2004, both Mrs. [Name [Name28]] and the accused [Name [Name2]] had directed to Grupo Financiero Cuscatlán de Costa Rica S.A. and Cuscatlan International Bank and Trust Co Ltd., expressing that, irrevocably and unlimitedly, they authorized the supply of any type of information and/or documentation that any of the supervisory authorities of the national banking system or Costa Rican judicial authorities have requested or may request in the future regarding the operations of [Name [Name27]]., so this would also be an independent and prior avenue for obtaining the described bank documentation; - the documentation provided by Corporación [Name [Name33]], among others, evidence Nos. 19 to 22, No. 23, No. 24, No. 25, No. 26, No. 27, No. 28, No. 29, No. 30, No. 31, No. 32, No. 33, No. 34, No. 35, No. 36, No. 36, No. 37, No. 38, No. 39, No. 40, No. 41, No. 42, No. 67, No. 69, No. 71, No. 74, and No. 75, the latter referring to the reports sent by [Name [Name44]]. and by [Name [Name27]]. in relation to the consultancy contracts; as well as that which was seized at the company [Name [Name29]]: No. 55, No. 57, No. 59, No. 80, No. 81, and No. 630; - the testimonies of witnesses such as [[Name45]] and [Name46], who not only supply information related to the facts to the Fiscalía, but also provide documentation that is later used as evidence by that representation, among others: No. 267 and No. 404; - the documentation seized at the facilities of the Instituto Costarricense de Electricidad: No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8, No. 9, No. 10, No. 11, No. 17, and No. 19, or requested from other government agencies: No. 15, No. 16, No. 82, No. 85.

In conclusion, although for this court there is absolute certainty that evidence No. 588 is lawful and only that verification would give rise to the rejection of the protest, going further and based on a hypothetical exercise in which such a source is assumed to be spurious, the truth is that the petition formulated by the defense would not be appropriate either because there are independent and prior sources to the bank revelation that is labeled as illicit, both with respect to those of the "Caja-Fischel" case and those that are of interest here." (F. 15,377 to 15,381 front, the underlining is from the original); iii) in this case, evidence No. 588 collected in another proceeding, constitutes not only evidence, but also a criminis notice (noticia criminis). The relationship of [Name [Name4]] with the case [Name47]. Caja-Fischel came to light through a journalistic investigation made public in April 2003, one month before the bank documentation was requested from Panama. The evidence was requested to clarify the purchase of a [...], as well as the relationship between [Name [Name4]], [Name [Name26]], the C.C.S.S, and the Fischel company. This information arrived at the Fiscalía on September 10, 2004. Now, finding in that proceeding and particularly, in that documentation, proof of deposits from SNQC S.A. to the account of [Name [Name12]]. was a casual finding, because what was sought was information regarding the relationship between the C.C.S.S., the Fischel corporation/[Name [Name12]] and [Name [Name4]]. To that extent, says the majority vote, regarding SNQC S.A., evidence No. 588 is a criminis notice (noticia criminis) (f. 15,381 to 15,383 front). iv) Based on the legitimate investigations that were being carried out, it was inevitable and/or certain that the connections between [Name [Name33]], [Name [Name27]]. and the I.C.E. would be discovered (F. 15,387 front to 15,393 front). As already stated above, the appellants understand that the previous reasoning is not legitimate. In this regard, they argue that the consent of [Name [Name23]], granted years after the evidence was collected, does not eliminate the fact that the information was collected without having a judicial order that lifted the bank secrecy. Likewise, say the challengers, the evidence that the trial court cites as autonomous and subsequent to No. 588, is not such, to the point that without it, the case would not have been initiated. The same applies to what the a quo considered inevitable or casual findings in the CAJA-Fischel case and which do not have such a character, or regarding the consideration of evidence No. 588 as a criminis notice (noticia criminis) as far as this procedure is concerned. These are arguments that were unsuccessfully formulated to provide legality to evidence that, from its origins, presents an absolute defect that cannot be remedied, namely, having been obtained without the endorsement of a Costa Rican judge. After examining the foregoing, this Court of Criminal Sentencing Appeal concludes that, even assuming that the reasoning set forth by the majority vote is not acceptable, these are arguments that were destined to legitimize evidence that, without said correctives, for the instance court was unlawful for having been obtained without a jurisdictional order. However, given that the Sala Tercera concluded that said order was unnecessary, all that reasoning and the errors it may contain lose relevance, to the point that they can well be hypothetically removed without this implying a modification of what was agreed. As a consequence of the foregoing, its questioning by the defense would also be ineffective. Said in other words and by way of example, based on the criterion expressed for this case by the Sala de Casación, evidence No. 588 is not lawful because [Name [Name23]], years later, endorsed the use of the information; because there was evidence independent and autonomous from No. 588 that also guided the inquiries towards [Name [Name27]]; or because the role of the cited corporation was a casual or inevitable finding. All highly debatable arguments. It is lawful, according to the Sala Tercera, because in the case of evidence to be collected in Panama under the T.A.L.M., a resolution by a national judge that lifted the bank secrecy was unnecessary. Therefore, all the other arguments invoked by the majority vote to legitimize the evidence, to which -it is reiterated- it had to resort because it considered it illicit given the absence of a jurisdictional order, lose significance. Finally, regarding the document that [Name [Name23]] presented to this court on August 27, 2015 (cf. 176,925 front, volume XLIV), in which he expressed his will to revoke the consent he had given for the bank information of the company [Name [Name12]] to be used in this proceeding, it is enough to underline that the decision of the Sala Tercera, in the sense of considering evidence No. 588 legitimate, was not based on that consent, but on the conclusion that the order of a national judge was unnecessary in the case of evidence to be obtained in Panama. Due to the foregoing, as irrelevant as it is that the a quo appealed to that argument to legitimize the referred evidence, so too is it that [Name [Name23]], with his revocation, intended to strip it of all value. Therefore, the reproaches formulated by attorney Wilson Flores Fallas, defender of [Name [Name21]] and by the defendants [Name [Name1]], [Name [Name2]], [Name [Name3]], and [Name [Name4]], on a personal basis, are declared without merit. […] XXVIII.- The allegations are not acceptable. In Considerando VIII.- of the Sala Tercera's resolution, it ruled on the issues indicated here, stating: "VIII. Section III of the challenge raised by the Ministerio Público. Motives for the Cassation Appeal related to the declaration of illegality of the so-called 'Evidence No. 543, 544 and 545.' The non-observance of procedural norms 142 second paragraph and 184 in relation to ordinal 408 subsection b) all of the Código Procesal Penal constitutes the first motive of the third section of the appeal filed, since in the opinion of the prosecuting entity, the challenged ruling presents at least seven flaws in its intellectual reasoning, related to the confirmation of illegality of evidence 543, 544, and 545, namely: 1.- Supposedly, it does not contain the citation of the norms of the Constitution, of Ley 7425, or of the Código Procesal Penal that expressly prohibit the use of legitimate documentary evidence within another criminal case. 2.- It argues, that although the [Telf1] sentence alludes, generically, to the right to informational self-determination of Article 24 of the Constitution and to the constitutional jurisprudence that develops it, it does not point out the part of that norm or the specific precedents of the constitutional body that expressly prohibit using in one case documentary evidence legitimately obtained in another proceeding, which prevents the prosecuting body from verifying its existence and correspondence between its ratio decidendi and the appealed vote (Cf. f. 175095 of volume XLII of the expediente). 3.- The ruling fails to rule on the factual and legal aspects that the Ministerio Público alleged in the oral appellate hearing, referring to the third motive of the appeal of Attorney [Name48], in favor of [[Name18]], and to the seventh motive of the appeal filed by the co-defendants [[Name18]], [[Name49]], [[Name50]], and [[Name51]], specifically on that: a) [Name [Name2]] used products and services contracted in Costa Rica, both from the current account of [[Name52]] at Banco Cuscatlán in Costa Rica and from SAFI and Cuscatlán Valores, which also belong to the same Grupo Cuscatlán. b) According to the proven facts of the convicting sentence 167-2011, both the defendant [Name [Name2]] and [Name [Name4]] used the services of Costa Rican private banking to create and receive transfers of money and securities from [[Name53]], the former through account executive [[Name54]] of Banco Cuscatlán and the latter, through BAC San José and its branches, so that, they are private banks and subsidiaries that operate in Costa Rica and are part of the Sistema Bancario Nacional, according to Article 1 of the Ley Orgánica del Sistema Bancario Nacional. Furthermore, that although the information requested from these banks requires a judicial order, in this particular case, a sui generis situation occurred, since apart from the fact that the acts were committed in Costa Rican territory, the Costa Rican Authorities did not order either the Grupo Cuscatlán or BAC, in Costa Rica, to send documents from Cuscatlán Internacional Bank &amp; Trust Limited or from Bahamas Bank Limited in that country, rather it was both Financial Groups that voluntarily delivered the information generated by them, on the occasion of the commercial relationship with [Name [Name27]] and the co-defendant [[Name18]]. They allege that unlike the [Telf1] vote, the Trial Tribunal, in convicting sentence 167-2011, did make a broad pronouncement on the matter, according to the section 'H. Protests of the technical defense of [Name [Name4]]' (Cf. f. 867 of the first instance sentence). 3. Opposition to the incorporation of Report No. 082-DEF because the documentation from the (sic) bank of the Bahamas, upon which it is based, was obtained based on a rogatory letter that was not provided in this process' (Cf. f. 175097 of volume XLII of the expediente). They reiterate that, from the alleged lack of pronouncement, the appealed Tribunal obtained an underived conclusion, with which it held that the Authorities of the aforementioned Financial Groups required an order directed to the Authorities of the Bahamas so that both the Grupo Cuscatlán and BAC would remit to the Costa Rican Authorities the information that they themselves generated in Costa Rica, on the occasion of the commercial relationship they had with both co-defendants. 4) Again, the complainants allege, the [Telf1] sentence fails to rule on the factual and legal aspects alleged by the Ministerio Público in the oral appellate hearing held, only now with reference to: a) That the international transfers made by the co-defendants [Name [Name2]] and [Name [Name4]], through bank accounts in Costa Rica, were not deposited into accounts in the Bahamas, but were generated and stored here in Costa Rica at their request. b) That both the bank information of the Grupo Cuscatlán and that of BAC, form part of the bank secrecy that those entities had to observe. However, once said secrecy was lifted, by means of a judicial order issued by a competent Judge, they were also obliged to deliver that information, as indeed happened.

• c)The information obtained by order of a Costa Rican Judge was not in the possession of Banks in the Bahamas but rather of the Cuscatlán financial group (Banco Cuscatlán, SAFI, Cuscatlán Valores) and BAC, domiciled in Costa Rica, meaning that the issuance of an order to lift bank secrecy directed at Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary. In addition to this, in the case of the certificates that compromised the accused [[Nombre18]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">], these were physically located at BAC San José here in Costa Rica, because the transactions carried out were conducted from our country, under the correspondent contract (contrato de corresponsalía) with the Bank of the Bahamas (See file folios 175099-175100 of volume XLII of the case file). By virtue of the foregoing, despite this, they argue that: "…</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">the Sentence Appeal Tribunal(sic)</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">failed to rule on these factual and legal aspects specifically alleged by the Prosecution and extensively developed by the trial court(sic)</span><span style="font-family:Arial; font-style:italic">, </span><span style="font-family:Arial; font-weight:bold; font-style:italic">and without knowing for what reason, argument, or evidence, it started from the alternative factual hypothesis that(sic) the transfers made to the Bahamas banks from Costa Rica were documented in information that</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">could only be under the exclusive custody of the offshore banks</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">, just as if the transfer operations had been carried out entirely outside the national territory and solely at the offshore bank. With this, the Sentence Appeals Tribunal managed to reach an underived conclusion, which is that the authorities(sic) needed an order directed to the authorities(sic) of the Bahamas so that Grupo Cuscatlán and Grupo BAC would give the Costa Rican authorities(sic) information </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">that they themselves had generated and was in their own possession here in Costa Rica</span><span style="font-family:Arial; font-weight:bold; font-style:italic">, and that furthermore had been generated in connection with the commercial relationship of Grupo Cuscatlán and Grupo BAC with [Name [Nombre27]]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">and the accused [Name [Nombre4]] in accordance with national law and with the services contract that(sic) both parties signed in our country…"</span><span style="font-family:Arial; font-style:italic"> (See file folio 175101 of volume XLII of the case file, the emphasis belongs to the original). 5) According to the Public Ministry, unlike judgment 167-2011, the appellate decision does not substantiate why the correspondent relationship between BAC San José and Bahamas Bank Limited was not proven, nor does it explain the reason why it did not find credible evidence 413, referring to the official communication of January 31, 2006, signed by the Head of Operational Risk Management of BAC San José (See file folio 6673 of volume XV of the case file), which reveals the existence of a correspondent contract in which BAC San José operates as the agent bank for BAC Bahamas Limited. Nor does it set forth why it was possible for the co-defendants [Name [Nombre2]]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Name [Nombre4]], to conduct transactions before the Bahamas banks without needing to travel to that Island, did that correspondent contract not exist. Insisting, furthermore, that the Second Instance Judges express even less why they did not find credible the note on folio 80 of volume I of the case file, dated September 27, 2004, in which representatives of Banco Cuscatlán inform the Public Ministry of the preparation of respective documents to send to them, among them, point e), </span><span style="font-family:Arial; font-weight:bold; font-style:italic">"…</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">operations under the direct correspondent contract that Cuscatlán Bank and Trust co Ltd in Nassau maintains with Banco Cuscatlán de Costa Rica</span><span style="font-family:Arial; font-weight:bold; font-style:italic">…"</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">(See file folio 175102 of volume XLII of the case file. The insertion belongs to the original). 6) They emphasize, that in no way does the appellate Tribunal substantiate how, in the case of the co-defendants [Name [Nombre2]]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Name [Nombre4]], the information from the Bahamas can, legally, be excluded from checking account services carried out in Costa Rica, nor do they mention the specific legal rule with which the information that these Costa Rican banks manage about the movements of a particular account can be excluded, generated by the activities of its account holder in accounts in other countries as a product of money transfers that, through that same checking account in Costa Rica, the client sent or received money from abroad. 7) They add that the Second Instance Tribunal did not examine the implications of the hypothetical exclusion of evidence 543, 544, and 545 in this particular case, nor the thesis of the majority vote of conviction judgment 167-2011, of the Criminal Court of the Treasury and Public Function, insofar as there are other documentary elements provided by BAC San José, which allow for determining the criminal liability of [[Nombre18]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, such as "the joint relation of Annex No. 19 of report 082 DEF, relating to the movements of the bank account of [[Nombre52]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">]., with the evidence expressly authorized by [[Nombre49]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">] and [Name [Nombre28]] through the notes dated September 21 and 29, 2004, contained in turn in evidence No. 110, and likewise through folios 28 to 33 of evidence No. 132, coming from Banco Cuscatlán…" (See file folio 175103 of volume XLII of the case file, the capital letters belong to the original). As a grievance, they outline that the lack of substantiation in the judgment regarding that entity's allegations, in relation to evidence 543, 544, and 545, caused impairment to the defense of the social interests entrusted to that Body, since the legal reasons considered by the Ad quem to reject the arguments presented are unknown to date, for which reason they request, as a claim, that the contested ruling be annulled, the proceedings be returned to the competent Appeals Tribunal, so that, with a new panel, it issues a new ruling that analyzes the points questioned in the present ground. In accordance with article 468 subsection b) of the Criminal Procedure Code, at the same time, </span><span style="font-family:Arial; font-weight:bold; font-style:italic">the Public Ministry, in the second ground of the third section</span><span style="font-family:Arial; font-style:italic">, claims erroneous application of substantive rules 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica and failure to observe article 615 of the Commercial Code, because the appealed judgment considered that the information provided by the Banks BAC San José and Grupo Cuscatlán in Costa Rica, in relation to the transfers made to financial entities domiciled in the Bahamas, exceeded the ordered lifting of bank secrecy. According to the petitioners, the conclusion reached by the judgment [Telf1], when it states that: "The bank domiciled in the Bahamas is not a simple extension of BAC San José, but a bank that has been founded according to the rules of another country, so the procedure to obtain banking information from that institution must </span><span style="font-family:Arial; font-weight:bold; font-style:italic">be done through official channels</span><span style="font-family:Arial; font-style:italic"> and, of course, with a judicial order to lift bank secrecy…"(See file folio 175105 of volume XLII of the case file, the highlighting is inserted), is incorrect, precisely because articles 141, 145, and 147 above mentioned and cited literally in the Public Ministry's Appeal, regulate the situation that occurred in this case, namely "Offshore Banking", insisting that it is not true that, to obtain banking information from Bahamas Bank Limited, it was essential to carry out the corresponding procedures through the General Chancellery of the Republic, since the request made to the National Financial Group alone sufficed. Also, that article 615 of the Commercial Code was violated, because documents that, by virtue of business relations between the Bank and the client, appeared in those checking accounts were erroneously excluded from the lifting of bank secrecy ordered for National Banks. They affirm that the serious error of the appealed vote consisted of misinterpreting the meaning and scope of bank secrecy, as well as arbitrarily limiting the information covered by the lifting of bank secrecy imposed on related Financial Groups, establishing through the doctrine of the author [Nombre55]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">, in the book "</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Contratos Bancarios. Su significado en América Latina</span><span style="font-family:Arial; font-style:italic">", Legis, 5th Edition, p.380, that bank secrecy comprises "…</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">all the information that has been provided to it on the occasion of its relationship with the client</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">…" (See file folio 172107 of volume XLII of the case file), specifically: "…•The private information it has received from its clients about their activities, businesses, plans, etc./ •Results of operations between bank and client, such as amount, purpose, types of credit, etc./ • The papers of its client that, by reason of the business relations, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">have come into the hands of the bank</span><span style="font-family:Arial; font-style:italic">, and that it could not show to third parties without the procedural formalities indicated by law…"(See file folio 172107 of volume XLII of the case file). Likewise, they point out that when applying that doctrine to the specific case, it is clear that the banking information that a financial group has in Costa Rica is not limited solely to that generated by the client's activities in our country, but also to accounts in other countries, as a product of money transfers made from the same account abroad, to reiterate that, the international transfers to which the judgment refers, were made through bank accounts located in Costa Rica, so the information of those transactions to Bahamas banks, having been generated and stored in Costa Rica, at the request of the co-defendants themselves, formed part of the bank secrecy that the Cuscatlán and BAC San José Financial Groups were required to observe, but also comprised the information that, once the corresponding bank secrecy had been lifted, should be handed over to the Costa Rican Judicial Authorities, as it involved banking information, obtained in our country, by virtue of Bank-client business relations, as indeed occurred. Based on the preceding argument, they state that an order to lift bank secrecy directed at Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary, and therefore, from that perspective, evidence 543, 544, and 545 are valid. As a grievance, they state that the non-application of the legal rules cited above caused illegitimate harm to the punitive claims of the Public Ministry, because it prevented them from developing a theory of the case linked to the remaining evidence, especially, with the testimony of the collaborating witness [Name [Nombre34]]. As a claim, they request that the ground be upheld, the annulment of the ruling be ordered, and the case be remanded for the issuance of a new decision in accordance with law. Finally, pursuant to numeral 468 subsection b) of the Criminal Procedure Code, </span><span style="font-family:Arial; font-weight:bold; font-style:italic">in the third claim of the third section of the Public Ministry's cassation appeal</span><span style="font-family:Arial; font-style:italic">, erroneous application of article 24 of the Constitution is claimed, at the time of invalidating evidence 543, 544, and 545. For the Public Ministry, the alleged defect is verifiable when the appellate Tribunal, based on an erroneous conception of said numeral, equates the use of the same evidence in two different criminal cases with a "second lifting of bank secrecy," without a judicial order (See file folio 175119 of volume XLII of the case file). Precisely, the prosecuting entity, in its challenge, explains two supposed errors incurred by the Appeals Tribunal when resolving the issue of the previously cited evidence: 1.- The judgment presents confusion when interpreting article 24 of the Constitution, when it refers to "Courts of Justice" (plural) for "the matters" (plural), since the rule does not specify that information, once obtained by means of letters rogatory or lifting of bank secrecy, can only be used in the proceeding in which it was originally requested, given that, on the contrary, it establishes the Courts of Justice as the sole entities competent to obtain that private information, when it presents the phrase "submitted to their knowledge," which means that it is a matter of exclusive use for criminal causes, where the request to the jurisdictional body is indispensable, since it excludes from that obtaining any powers or institutions other than the Courts of Justice (See file folio 175120 of volume XLII of the case file). 2.-For the claimants, the Second Instance Tribunal disregards the procedural principles of publicity and community that govern evidentiary matters: bank secrecy, in relation to the information disclosed, compiled, systematized, and brought to the knowledge of all parties, can only be lifted once, precisely because it has lost its condition of secrecy (See file folio 175121 of volume XLII of the case file). Furthermore, the petitioners mention that evidence 543, 544, and 545 acquired that publicity when they were added, discussed, and incorporated into the debate in the CCSS-Fischel process, as part of the information remitted from BAC Bahamas, in which copies of investment certificates referenced by the co-defendant [[Nombre18]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">to BAC Bahamas were delivered, which were received by BAC San José, for the purpose of being transferred to BAC Bahamas, together with an amount in dollars debited from that account, according to the correspondent contract, in which BAC San José operated as an Agent of BAC Bahamas Bank Limited (See file folio 175122 of volume XLII of the case file). On the same subject, the appellants make a literal transcription of folios 16016 and 16017 of the first-instance judgment 167-2011, to support the reasoning set forth and affirm that the documentation from BAC Bahamas delivered by Mrs. [Name [Nombre56]], as Head of Operational Risk Management of BAC San José, is lawful, by virtue of the fact that it was generated and was physically located in Costa Rica. For the prosecuting entity, the lifting of bank secrecy of the BAC San José accounts, in addition to having been obtained in accordance with the legal regulations, was public and common to all parties when it was incorporated into the CCSS-Fischel criminal process, so it is absurd to maintain that in both processes the bank secrecy should have been lifted, as it is only one and is lifted only once. Likewise, the petitioners affirm that the judgment fails to indicate the constitutional and legal rules (Ley 7425 or Criminal Procedure Code), that expressly prevent the use of evidence legitimately obtained within one process in another, so for the prosecutorial representatives, that evidence must be studied from the doctrinal concept of "transferred evidence" (prueba trasladada) (See file folios 175124-175125 of volume XLII), which is based on the unity of jurisdiction, not requiring identity of parties, but the prior existence of adversarial proceedings and cognizance of the evidence in the other process, where its full efficacy has been determined, according to the principle of freedom of evidence, enshrined in articles 182 and [Nombre57] of the Criminal Procedure Code and vote 2001-764, of the Third Chamber, from which they cite an extract (See file folios 175125-175126 of volume XLII of the case file). Thus, for the prosecutorial representatives, not only was there an evident connection between the CCSS-Fischel and ICE-[Name [Nombre29]] cases, but also the information obtained from BAC Bahamas Bank Limited in the Bahamas, on the occasion of the connection with the BAC San José account in Costa Rica, in the CCSS-Fischel case, was brought to the knowledge of all the co-defendants, including [Name [Nombre4]], who had the opportunity, together with his defense counsel, to refute it, its incorporation being valid in that other process. Therefore, they set forth as a grievance, an illegitimate harm to the punitive claims of the Public Ministry, a body that failed to prove its theory of the case, due to the exclusion of the aforementioned evidentiary elements, the prosecutorial appeal petitioning for both the annulment of the appealed ruling regarding the declaration of illegality of evidence 543, 544, and 545, and the issuance of a new ruling that resolves the issue raised. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">For reasons of procedural economy and because they refer to interrelated points, the first, second, and third grounds of the Third Section of the prosecutorial appeal are resolved jointly, and are upheld: </span><span style="font-family:Arial; font-style:italic">By the nature of the claims, the following considerations must be made: i) Regarding evidence 543, 544, and 545 in this particular case: Just as the Criminal Court of the Public Treasury, of the Second Judicial Circuit of San José, did in its time in judgment 167-2011, before resolving on the lawfulness or unlawfulness of the aforementioned evidence 543, 544, and 545, it is necessary to dimension what refers to that material. According to the accusatory pleading, which appears on folios 8020 to 8364 of volume XIX of the case file, evidentiary elements 543, 544, and 545 were described by the Public Ministry in its petition of "</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">FORMAL ACCUSATION AND REQUEST TO OPEN TRIAL</span><span style="font-family:Arial; text-decoration:underline"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">"</span><span style="font-family:Arial; font-style:italic"> (See file folios 8020-8364 of volume XIX of the case file. The insertion belongs to the original), within the section called "</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Judicial Letters Rogatory</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">", as: "…543) Certified Copy of the request to the Criminal Court by the prosecutorial entity for the issuance of a Letter Rogatory addressed to the Republic of the Bahamas, dated October 5, 2004 (...) 544) Certified copy of the Letter Rogatory issued by the Criminal Court of Costa Rica to the authorities of the Bahamas (…) 545) Certified copy of the Response to the letter rogatory to the Bahamas by Consul [Nombre58]), Bahamas and a copy of the English translation of the Letter Rogatory issued by the Criminal Judge of Costa Rica to the authorities of the Bahamas…" (See file folio 8324 of volume XIX of the case file), given that with evidence 543, the prosecuting entity sought to prove, the "…request of the Public Ministry to access the banking information related to [Name [Nombre4]], [Name [Nombre12]] among others for the 'offshore' branch of the Bank of San José in the Bahamas(…)…"(See file folio 8324 of volume XIX of the case file); with 544, both the legalization procedure for obtaining that evidence and "…the banking backing documents for the operations made by [Name [Nombre4]] in "….the entry of money coming from [Nombre27] into the account of [Name [Nombre12]] and the English translation of the request made…" (See file folio 8324 of volume XIX of the case file). Hence, as an important fact, the unnumbered official communication, of October five, two thousand four, subsequently called evidence 544, refers to the letter rogatory sent by Licenciado [Nombre59]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">, in his capacity as Criminal Judge of the Treasury and Public Function of the Second Circuit, through the Secretariat of the Supreme Court of Justice and the Ministry of Foreign Affairs, to the Government of the Bahamas, which was carried out on the occasion of investigation 04-0005356-042-PE, initiated against [Name [Nombre4]]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, [Name [Nombre23]]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, [Name [Nombre26]], [Name [Nombre57]], [Name [Nombre60]], and [Name [Nombre61]], for the crimes of aggravated corruption, illicit enrichment, and others, to the detriment of the Caja Costarricense del Seguro Social, in the case called Caja-Fischel, as is evident from folio 6629 et seq. of volume XV of the case file. In that request, the factual scenario motivating the proceeding was also set forth, indicating that it was an inquiry to prove facts referring to the "Proyecto Finlandia" (facts 1 and 57) and to the "Purchase of a House in [...]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">" (facts 58 through 59 given that the document offered by the prosecuting entity was determined to be incomplete) (See file folios 00015313-00015314 of volume XXXI of the case file), it being the case that, although other possible involved parties were mentioned in said petition, it was essentially aimed at verifying the actions of the defendants [Name [Nombre4]], [Name [Nombre23]], and [Name [Nombre26]], given that information was required for accounts [Valor 044]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, [Valor 045], and [Valor 046] at the Bank of San José in the Bahamas, specifically, the names of the owners of the indicated accounts, in addition to the "</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">delivery of ALL original documentation since it was opened</span><span style="font-family:Arial; font-style:italic">…"(See file folio 6550 of volume XV of the case file. The insertion is ours), requiring the inclusion of: "…for each account, but not limited to: • Signature cards/• Documents related to the opening of the accounts/• Account general ledgers/• Periodic account statements/ • Deposit and withdrawal records/ • Instructions related to the receipt or transfer of any funds to or from the account whether by fax, email, or any other means of communication/ • Correspondence to, from, or on behalf of the account holder(s)/• Memorandums related to the account/• Cashier's checks and documentation for the purchase of cashier's checks/• Balances/• Closing dates/• Inactivity/• Any other documentation of the account, operation, or financial activity…"(See file folio 6550 of volume XV of the case file. The insertion is ours), in such a way that the content of evidence 545 corresponds to the records and documents yielded by the bank accounts. Once all of those evidentiary elements were provided by the prosecuting body in its request to open trial, the defense counsels discussed their lawfulness, insofar as the fragmentation has been questioned, because the document incorporated as evidence 543 was incomplete, as well as the absence of the corresponding judicial order to access sensitive information such as that relating to bank accounts abroad (See file folio 00015310 of volume XXXI of the case file). However, judgment 167-2011, issued in first instance, by means of the majority vote, on the occasion of the defensive claim of lawyer [Nombre62], established in the section </span><span style="font-family:Arial; font-weight:bold; font-style:italic">"…1. </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Bank evidence from the Bank of San José in the Bahamas requested in the 'Caja-Fischel' case and provided as evidentiary material in this process (evidence No. 543, No. 544, and No. 545</span><span style="font-family:Arial; font-weight:bold; font-style:italic">)</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">" (See file folio 15310 of volume XXXI of the case file. The insertion belongs to the original), the legality of both those probative sources and their subsequent incorporation to the present process, when it determined that said material, despite coming from file 04-5356-042-PE, against [Name [Nombre63]] and others, called "Caja-Fischel," and having been added to the present file 04-6835-647-PE, could be transferred, as there was no express legal prohibition in this regard, and it determined that: "…at the time the Prosecution makes the referred request to the criminal judge(sic) of the preparatory stage so that he asks the competent authorities(sic) of the Bahamas, the evidence of its interest did not have the necessary clarity to discern that these facts were unlinked from those it was then investigating in the context of the 'Caja-Fishel' case (See file folio 00015312 of volume XXXI of the case file). Likewise that, although the copy of at least ten folios from the last part of the original document, delivered by the Costa Rican Prosecution, had been omitted, the truth was that ill intent could not be extracted from those photocopies, on the part of the prosecutorial representatives, given that the authorization of Judge [Nombre59]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">, to gather that evidence in the Bahamas, was derivable from them without any problem (See file folio 00015313 of volume XXXI of the case file). However, the Sentence Appeals Tribunal, regarding the defensive questions, determined that BAC San José in the Bahamas did not constitute an extension of its counterpart in Costa Rica, for which reason any banking information coming from that entity should have been processed through the corresponding legal means, that is, through the issuance of the respective judicial order, absent in this process. Moreover, according to the Ad quem, its use was restricted to case 04-0005356-042-PE, so its transfer for this new process was not appropriate, apart from the fact that the correspondent relationship between BAC San José and BAC Bahamas Limited had not been demonstrated (See file folios 174525-174526 of volume XLI of the case file). For these latter reasons, the Public Ministry again discusses the lawfulness of that evidence, only now under the guidelines and restrictions contemplated in article 468 subsection b) of the Criminal Procedure Code.

Now, given the foregoing account, it is necessary to offer some relevant reflections, since from a reading of the section titled: “…B. Spurious Evidence. In the second ground of the appeal filed by [[Nombre18] ], an erroneous application of the rules concerning the lifting of bank secrecy is raised, meaning that the banking evidence used to demonstrate the deposits in his favor is illicit and unusable for the conviction…” (Cf. folio 174525 of Volume XLI of the case file) contained in the challenged judgment [Telf4], this Court of Cassation notes the existence of errors regarding the erroneous application of constitutional and legal norms, an infringement of the principle of derivation, and an absence of intellectual reasoning, with respect to evidence 110, as alleged by the prosecutorial body, based on the following considerations: i) Erroneous application of Articles 24 of the Political Constitution; 1, 28, and 29 of Law 7425, of August 9, 1994, "Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones" and 615 of the Commercial Code. According to the reasoning set forth in the challenged judgment, it is possible to verify that the Ad quem required, as a condition to deem evidence items 543, 544, and 545 lawful, a new judicial order in the present proceeding, by maintaining that the information from Bac Bahamas Bank Limited, tending to lift the bank secrecy of the accounts of the accused [[Nombre18] ], should have been collected by means of a judicial resolution that permitted it, and that the transfer of those evidentiary elements from one proceeding to another is not possible, when the truth is that the supra-cited numerals do not contain an express prohibition on their use in subsequent cases. Certainly, before continuing with the study of the aforementioned evidence, it is necessary to reiterate that rule 24 of our Political Constitution enshrines the fundamental right to privacy, freedom, and secrecy of communications, for which the article is transcribed again, in order to establish that said rule indicates: "The right to privacy, freedom, and secrecy of communications is guaranteed./ Private documents and the written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, a law, whose approval and reform will require the votes of two-thirds of the Deputies of the Legislative Assembly, will determine in which cases the Courts of Justice may order the seizure, inspection (registro), or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their knowledge./ Likewise, the law will determine in which cases the Courts of Justice may order the intervention of any type of communication and will indicate the crimes in the investigation of which the use of this exceptional power may be authorized and for how long. It will also stipulate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions protected under this rule must be reasoned and may be executed immediately. Their application and control will be the non-delegable responsibility of the judicial authority./ The law will determine the cases in which the competent officials of the Ministry of Finance and the Office of the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to oversee the correct use of public funds./ A special law, approved by two-thirds of all Deputies, will determine which other Public Administration bodies may review the documents that said law indicates in relation to the fulfillment of their regulatory and oversight competences to achieve public purposes. Likewise, it will indicate in which cases said review is appropriate./ Correspondence that has been stolen and information obtained as a result of the illegal intervention of any communication shall not produce legal effects. / (Thus amended by Article 1 of Law No. 7607 of May 29, 1996. Emphasis added). From the cited Constitutional norm, it is evident that the fundamental right to privacy enshrined in that article is intimately related to the sphere of protection of the private life of persons within a Democratic State, since it is comprised of: “…those phenomena, behaviors, data, and situations of a person that are normally withheld from the knowledge of strangers. Said sphere of privacy is justified because, in a democratic system, every person has the right to maintain reserve over certain activities, data, documents, or opinions of their own, since it is impossible or very difficult to coexist and fully develop the purposes a person sets for themselves without enjoying a framework of privacy, protected from interference by the State or other persons (see Article 11.2.3 of the American Convention on Human Rights or Pact of San José)…” (Contentious-Administrative Tribunal, Section VI, Voto 2010-02958, at eight o'clock, on August tenth, two thousand ten. Emphasis added). However, as defined by Voto 2010-02958, of the Contentious-Administrative Tribunal, Section VI cited above, with emphasis on Voto 2005-02703, at ten hours and seventeen minutes, on March tenth, two thousand five of the Constitutional Chamber, within the right to privacy contemplated in rule 24 of the Political Constitution, the inviolability of private data and documents must be considered a manifestation of that guarantee, insofar as this is understood as a safeguard so that private individuals cannot access them and, at the same time, as a prohibition so that the public or private entities that handle this information cannot supply it to third parties, given that: “…Article 24 of the Political Constitution guarantees to all persons a sphere of intangible intimacy for all other subjects of law, such that those intimate, sensitive, or nominative data that a public entity or body has collected, processed, and stored, by being part of its archives, records, and physical or automated files, cannot be accessed by any person, as this would imply an unconstitutional external intrusion or interference…” (Sala Constitucional de la Corte Suprema de Justicia, Voto 2005-02703, at ten hours and seventeen minutes, on March tenth, two thousand five. In a similar sense, Voto 2003-00136, at fifteen hours and twenty-two minutes, on January fifteenth, two thousand three, cited in Contentious-Administrative Tribunal, Section VI, rulings 2010-02958, at eight o'clock, on August tenth, two thousand ten and 838-2009, at eight hours and thirty minutes, on May sixth, two thousand nine). Despite the indicated restrictions, the inviolability of private data and documents is also not unrestricted, since the Political Constitution itself establishes limitations or exceptions, when it refers to the law, with Law 7425 being enacted to establish specific regulations, in the case of interventions of oral or written communications and the right to privacy in general, while specifically, for bank secrecy, it refers to Article 615 of the Commercial Code. In this regard, concerning the notion of bank secrecy, as an essential topic for the resolution of the grounds raised by the prosecutorial body, it must be maintained that the Constitutional Chamber itself has understood it as “…a legal manifestation of the juridical good protected through the provisions of Article 24 of the Political Constitution (fundamental right to privacy). In this sense, bank secrecy is ‘...the duty imposed on every financial intermediation entity not to reveal the information and data it possesses about its clients from any banking operation or contract it has entered into with them, especially in the case of current accounts, since numeral 615 of the Commercial Code expressly enshrines it for this scenario...’ " (Sala Constitucional de la Corte Suprema de Justicia, Voto 2005-02703, at ten hours and seventeen minutes, on March tenth, two thousand five cited by Contentious-Administrative Tribunal, Section VI, Voto 2010-02958, at eight o'clock, on August tenth, two thousand ten. In a similar sense, Sala Constitucional de la Corte Suprema de Justicia, Votos 2014-005599, at fourteen hours and thirty minutes, April thirtieth, two thousand fourteen; 2004-14210, at fifteen hours and four minutes, on December fourteenth, two thousand four and 2003-00136, at fifteen hours and twenty-two minutes, on January fifteenth, two thousand three. In a similar position, DE [Nombre64] (Mario), Secreto Bancario, in [Nombre65] (Gustavo) and others, Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p.525. A notion that is, without a doubt, closely linked to Law 7425, to which rule 24 refers, and especially, to the first article, which imposes as the exclusive competence of the Courts of Justice the power to “authorize the inspection (registro), seizure, or examination of any private document, when it is absolutely indispensable to clarify matters submitted to their knowledge,” and exclusively, Article 615 of the Commercial Code sets forth what is related to the topic of bank secrecy in bank account contracts, stating 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. Interventions made in compliance with their functions determined by law by the General Superintendence of Financial Entities, or the General Directorate of Taxation authorized for this purpose, are excepted.” (Thus amended by Law 9068, "Ley para el cumplimiento del estándar de Transparencia Fiscal," of September 10, 2012. Emphasis added). From the regulations present in both norms, it is evident that in our legal system, bank secrecy constitutes a derivation of the fundamental right to privacy, which presents as a fundamental requirement to be infringed, the issuance of a resolution by a competent jurisdictional entity. However, by its nature, it can also be made available through the free and voluntary authorization of the account holder. Even so, in either of the two options, its use is not restricted to the criminal case in which the lifting of the banking documents was carried out. It must be recognized that the only restriction is with respect to written or telephonic communications, which is expressly contained in numeral 28 of Law 7425, "Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones," which specifically prohibits the transfer of evidence related to the intervention of written or telephonic communications, when it states: “Article 28. Restricted use of information. The results of the intervention of oral and written communications may not be used for any purpose other than that which motivated the measure.” (Emphasis added), since it must be remembered that in the case of interventions of oral, written, telephonic, or any other type of communications, Article nine of the same Law 7425, as it concerns the violation of a fundamental right, by the principle of proportionality, specifies in an exhaustive list the crimes for which this restriction is permitted. On this topic, note that both Constitutional case law and case law from this Third Chamber have considered, as a practice violating the right to privacy, the use of the results obtained through written or oral interventions, ordered in one criminal proceeding, that are used in another proceeding of the same matter, or, for example, within sanctioning or disciplinary proceedings (See in a similar sense, Sala Constitucional de la Corte Suprema de Justicia, Voto 2014-004035, at eleven o'clock, on March twenty-first, two thousand fourteen, which also alludes to CED1, at sixteen hours and eight minutes, on September twenty-sixth, two thousand two; CED2, at fourteen hours and sixteen minutes, on March twenty-seventh, nineteen ninety-one; CED3, at ten hours and fifty-four minutes, on February eighteenth, nineteen ninety-four; CED4, at sixteen hours and forty-seven minutes, on March eighteenth, two thousand three. In a similar sense Sala Tercera de la Corte Suprema de Justicia, Voto 2013-00073, at nine hours and seven minutes, on February twelfth, two thousand thirteen). However, the restriction contained in Article 28 of Law 7425 could not be applied to private banking information derived from the lifting of bank secrecy, since this is only referred to the intervention of oral and written communications. In contrast, Article 22 of the same Law contains a duty of confidentiality for those in charge of intervening in these communications, be they police officers, auxiliary justice administration staff, or judges, when it expressly refers, within the title of “RESPONSIBILITIES, PROHIBITIONS, AND SANCTIONS” that: “… Officials and employees participating in the intervention of communications, the inspection, seizure, or examination of documents, or those who have the power to request these measures, are prohibited from the following: 1. Using the results of the intervention for purposes other than those that motivated it…”. The foregoing demonstrates that these are two dissimilar situations, since there is no rule, within Law 7425, that restricts the transfer of evidence derived from banking information obtained from another proceeding, which leads to establishing that, in the absence of an express prohibition, said evidence, fulfilling the requirements of transferred evidence demanded by legal doctrine, can be used in subsequent proceedings, albeit, only those of a criminal nature. On the topic, based on the principles of freedom and breadth of evidence, unity of jurisdiction, and procedural economy, the majority position of criminal procedural law doctrine has admitted, with respect to evidentiary activity, the concept of "prueba trasladada" (transferred evidence), "prueba prestada" (borrowed evidence), or "traslación de la prueba" (transfer of evidence) as that evidence that has been produced for a specific proceeding and is asserted in another. Thus, for author [Nombre66], prueba trasladada is nothing other than that which "...is practiced or admitted in another proceeding and is presented in authentic copy or by the dismemberment of the original, if the law permits it" (DEVIS [Nombre67] (Hernando), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68]., 1981, p.367), while for [Nombre69] (Ada), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in [Nombre70] (), Prueba Trasladada (o producida en otro expediente judicial), in [Nombre71] () and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, it is "that which is produced in one proceeding to generate effects therein, later being transportated documentarily to another, thereby generating effects in a different proceeding." For both authors, it results, as a general rule, for applying the transfer of evidence, that if a regulation to the contrary, which prohibits it, is nonexistent, any evidence can be useful in one or several proceedings, hence, as essential requirements for the admissibility of said evidence, the same author [Nombre70] (), Prueba Trasladada (o producida en otro expediente judicial), in [Nombre71] () and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.371-377, has described at least five prerequisites for its validity: 1. Participation of the counterparty in the production of the evidence: that is, that in the obtention of the transferred evidence, the principles of contradiction and defense must have been guaranteed (In a similar sense, [Nombre66] (Hernando), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68]., 1981, p.367 and 373). 2. Identity of parties: for the majority doctrine, according to [Nombre72], the borrowed evidence does not need to possess the characteristic of identity of parties in both proceedings, but rather that the affected person had the possibility of a contradictory hearing in the previous proceeding. 3. Collection of evidence in a jurisdictional proceeding: by the principle of jurisdictional unity, for the borrowed evidence to be valid, it is essential that its collection was produced within a jurisdictional proceeding (In a similar sense, [Nombre66] (Hernando), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68]., 1981, p.373). 4. Identity of facts: by the principle of ne bis in idem, absolute identity of the facts of both proceedings would not be necessary, but at least a simple relation. 5. Compliance with legal formalities: according to [Nombre72], for the transfer of evidence in a second proceeding to be valid and effective, the regularity of the evidence obtained in the original proceeding is indispensable. In this way, regarding the last of the established requirements, it is clear that if the procedural regulation in the legal system restricts evidentiary activity solely to the specific case, the transfer of evidence from one file to another would invalidate that evidence for the second proceeding, even when the origin of the first was valid. In this regard, in the present proceeding, the principles of contradiction and defense have been guaranteed, since the accused and their defenses have been able to object to that evidence, to the point that the Criminal Sentencing Appeals Tribunal declared it illicit. Likewise, evidence items 543, 544, and 545 were collected within a jurisdictional proceeding, where a relationship existed between the facts of the first proceeding and those that the Public Prosecutor's Office investigated in this other case, with the compliance with legal formalities finally being met, as well as the nonexistence of a legal or supra-legal norm that would prevent the transfer of the mentioned evidence. (On the requirements of prueba traslada, see [Nombre69] (Ada), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in [Nombre70] (), Prueba Trasladada (o producida en otro expediente judicial), in [Nombre71] () and others, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, cited in Section VI of this judgment). Precisely, note that the letter rogatory sent by Judge [Nombre73] to the Government of the Bahamas was grounded in Articles 62, 65, 154, 180, and 181 of the Criminal Procedure Code, Article 41 of the Costa Rican Political Constitution, and Articles 5 and 6 of the Vienna Convention, so that, regarding the requirements demanded by our legislation concerning the letter rogatory, the resolution fully complied, and the objections that aim to determine its illegality based on its transfer from case file 04-005356-042-PE or Caja-Fischel to the present case are unacceptable, since Law 7425, as analyzed supra, does not contain restrictions for this type of information, because the only reference to the prohibition of transferring evidence is contained in Article 28 of Law 7425, but it refers to other scenarios, i.e., the interventions of oral or written communications. This being the case, this Chamber not finding, under the indicated regulations, any defect that conflicts with the requirements of transferred evidence, in application of the principle of freedom of evidence contained in Article 182 of the Criminal Procedure Code, the lawfulness of this evidence must be declared. Moreover, note that when the Appeals Tribunal resolved the defensive objections, it was also remiss in determining the procedural importance of said evidentiary collection, by foregoing, in the construction of its reasoning, an examination of whether this evidence was the product of an independent source or whether, on the contrary, it was evidence derived from another piece of evidence that was transcendental for the proceeding. In this sense, given that the Appeals Tribunal declared null evidence that was not so, due to the erroneous application of constitutional and legal norms, judgment [Telf4] lacks sufficient reasoning and must be so declared. Despite this, in strict adherence to the legal restrictions incorporated with the entry into force of Law 8837 on the competences of this Third Chamber, regarding evidentiary assessment, it will correspond to the Criminal Sentencing Appeals Tribunal, with a new composition, to analyze, according to the rules of sound judgment, evidence items 543, 544, and 545, based on their comprehensive assessment in harmony with the evidentiary elements incorporated into the debate. ii) The second-instance judgment presents an infringement of the principle of derivation, which prevents its effectiveness: According to the reasoning contained on folios 174525 to 174526 of Volume XLI of the case file, it is clear that the Appeals Tribunal, in judgment [Telf1], incurs an infringement of the rules of sound judgment, specifically the principle of derivation, when it categorically affirms that evidence items 543, 544, and 545 are illicit and unusable in this proceeding, because: “…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 the species and it is also not known whether the mentioned banks can exchange available information on their accounts by a mere internal administrative request for the normal course of their financial activities (…) This being the case, the evidence obtained without any correspondent banking 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, of the appeal filed by the defendants [Nombre [Nombre1]], [Nombre [Nombre2]], [Nombre [Nombre3]], and [Nombre [Nombre4]], are applied…” (Cf. folio 174526 of Volume XLI of the case file).

(The emphasis is ours), while from exhibit 413, linked to the official letter of January thirty-first, two thousand six, signed by the Head of Operational Risk Management of BAC San José, [Name [Name56]], (Cf. f. 6673 of Volume XV of the case file), a different conclusion can be drawn, since the aforementioned document certifies that: “…According to our correspondent agreement, in which BAC San José operates as the agent bank of BAC Bahamas Bank Limited and duly authorized by the legal counsel and the Administration of that institution, we proceed to make the following clarifications related to the information provided by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, document reference CLE-GEN-00293, in response to your official letter No. 40-FADECT-06-MM dated January 19, 2006. / As part of the information sent by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, photocopies of the following three investment certificates with their respective coupons were delivered (…) These certificates were received by BAC San José (sic) on January 15, 2002, to be transferred to BAC Bahamas along with an amount of $8,165.23 debited from account No. [Value 047] in the name of [Name [Name4]]. With this money plus the principal and interest of certificate [Telf5] in the name of [Name [Name4]] totaling $161,725, BAC Bahamas constituted certificate No. 720096897 in the name of [Name [Name4]] for $200,000 on January 15, 2002…” (Cf. f. 6673 of Volume XV of the case file). Thus, it is clear that from this evidence, it is possible to derive a commercial relationship between BAC San José and BAC Bahamas Bank Limited, which undoubtedly determines the existence of the aforementioned correspondent relationship between the banking entities indicated above and that the conclusion of the Court of Appeals did not integrally consider evidence of transcendental value, such as the content of exhibit 413, taking the aforementioned statement lightly. iii) Nor did the Ad quem evaluate exhibit 110, which is specifically related to probative material 543, 544, and 545. Within the concept of bank secrecy, as held by legal doctrine, “…there are limits (…) of a merely private nature or subjective limits, such as the express consent of the client, interbank information, or the Bank's legitimate interest in lifting bank secrecy, the latter normally referring to cases of conflict with the client…” (GUILLÉN [Name74]), [Name75], Bank Secrecy and its Legal Limits (Limits of Public Law) (El secreto bancario y sus límites legales (límites de derecho público)), [Name76], 1997, p. 115. Regarding the client's express consent, it has also been established that “…the basis of this limit lies in the fact that (sic) the very holder of the secrecy, the principal party interested in (sic) maintaining confidentiality, agrees to the revelation of the secrecy itself, considered as the will to conceal. The client's express consent to the lifting of bank secrecy constitutes a limit unanimously admitted by doctrine, which relates to the waivable nature of the right to privacy in general held by any natural or legal person. Consent in these cases does not imply the absolute abdication of this right or an absolute and abstract waiver thereof, but rather a partial and voluntary relinquishment of the powers conferred by the right to privacy…” (GUILLÉN [Name77]), Bank Secrecy and its Legal Limits (Limits of Public Law) (El secreto bancario y sus límites legales (límites de derecho público)), [Name76], 1997, p. 115-116. This subjective limit of bank secrecy law, unlike in other legal systems, is legally recognized in our country in articles 615 of the Commercial Code and 29 of Law 7425, since the lifting of bank secrecy can derive either from an express judicial resolution, or from the respective authorization of the holder thereof. However, in the specific case, those items of evidence were never examined in relation to the authorizations issued by the accused [Name [Name2]] and [Name [Name28]] who, freely and voluntarily, empowered Grupo Financiero Cuscatlán to supply any information and documentation requested by the Judicial Authorities of Costa Rica concerning their bank accounts, nor was it examined that these Banks, in light of articles 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica), have the particularity of forming a financial group, headquartered in Costa Rica, where the information on those accounts was stored in our country, which allowed for the establishment that all movements in the accounts were carried out from Costa Rica. In this regard, it must be recognized that article 29 of Law 7425 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. This consent shall be revocable at any time” (The emphasis is ours), which implies that this right to privacy is available to the account holder, such that the individual may waive it, provided they do so freely and voluntarily, since bank secrecy, belonging to the natural person, is available individually or through a legal entity. (See in the same vein, DE [Name64] (Mario), Secreto Bancario, in [Name65] (Gustavo) and others, Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p. 525.), so that, if the co-defendant [Name [Name2]] and his wife decided, through respective official letters, to reveal their accounts to third parties, given the criminal proceedings being followed against them, this Chamber finds no illegality; on the contrary, it is considered that said evidence should have been analyzed by the competent Court in light of exhibits 543, 544, and 545, which is notably absent in the case at hand. Ultimately, in accordance with articles 467, 468, 469, and 471 of the Criminal Procedure Code (Código Procesal Penal), the first, second, and third grounds of the Third Section of the Cassation Appeal filed by the Public Prosecutor's Office are declared well-founded, and therefore, for these reasons, the acquittal judgment issued in favor of [Name [Name1]], [Name [Name2]], [Name [Name3]], [Name [Name4]], [Name [Name22]], [Name [Name20]], and [Name [Name21]] is annulled…”.

As extracted from the text transcribed above, the Third Chamber concluded that exhibits 543, 544, and 545 were lawful, just as the trial court had indicated. Specifically, the cassation court considered that, as it is not prohibited by the legal system, there was no impediment to transferring the information related to BAC Bahamas Bank Limited, obtained in proceeding 04-005356-042-PE, known as Caja-Fischel, to the present case. Similarly, it concluded, based on exhibit No. 413, that there was a correspondent agreement through which BAC San José operated as the agent bank for the former. Thus, by upholding the claims made by the requesting body, the Chamber settled the questions raised by the defense counsel of [[Name18] ] and by the accused himself, since by reason of the first point (the legitimacy of the transfer of evidence carried out), it is ruled out that this information should be weighed solely in the [Name78] proceeding, or that it was necessary to fulfill in this matter the requirements that had already been satisfied in the original proceeding (e.g., the judicial resolution that authorized the lifting of bank secrecy). Also, due to the foregoing, it loses relevance that when translating the letter rogatory from English to Spanish, a piece of data contained in the one sent to the Bahamas was omitted, namely, the indication that the evidence would be used solely to elucidate the facts investigated in case [Name78]. (cf. folios 6.628 and 6.6524 of Volume XV). This is to the extent that such a statement, which in the letter rogatory is inserted in the section intended to explain the relevance of the requested evidence (f. 6.628 front, second paragraph), does not change the fact that within Law No. 7425, there is no rule whatsoever prohibiting the transfer of banking information obtained in one proceeding to another, the only scenario in which, according to the Third Chamber, the transferred evidence would be unlawful. Likewise, by reason of the second point (the existence of the correspondent agreement between BAC San José and Bahamas Bank Limited, which for the cassation court is reasonably derived from the evidence, particularly from exhibit No. 413), the local bank had no impediment whatsoever to delivering the questioned information. Finally, the Third Chamber, upon ordering the remand, ordered this court to analyze exhibits 543, 544, and 545, “…from their integral assessment in consonance with the probative elements incorporated into the debate”. In this regard, two considerations must be made. The first is that the appellant is not questioning the examination that the trial court made of such evidence, or the conclusions it derived from them, but rather their legitimacy, by understanding that they were obtained and incorporated into the proceeding irregularly, a point that, as already explained, was settled in cassation, concluding that the evidence is lawful. The second is that indeed, as pointed out by the a quo at folio 15,323 front of Volume XXXI and as suggested by the Third Chamber in its resolution, specifically at folios 176,472 front to 176,473 back, the cited evidence also does not have the essential nature that is claimed, since there is other evidence that allows for the establishment of the transit of the funds, namely, the information gathered in relation to the transactions carried out by [[Name52] ] through the different entities that make up the Grupo Financiero Cuscatlán, of special importance, exhibit No. 132, folios 28 to 33 which this chamber has reviewed and where the three original investment certificates and their respective coupons appear, all with the received stamps of BAC San José and the endorsement of BSJ International Bank. Thus, the grounds must be rejected, not only because exhibits 543, 544, and 545 have been considered lawful by the Third Chamber which, in essence, confirmed what was stated by the trial court, but also because there is other evidence that equally allows for the association of [[Name18] ] with the admission of the certificates in question. For the foregoing reasons, the challenge is declared without merit. [...]

XXVIII.- The arguments are not admissible. In considerando VIII.- of the resolution of the Third Chamber, it ruled on the issues indicated here, stating: “VIII. Section III of the challenge raised by the Public Prosecutor's Office. Grounds for the Cassation Appeal related to the declaration of illegality of the so-called “Evidence No. 543, 544, and 545”. The disregard of procedural rules 142, second paragraph, and 184 in relation to article 408 subsection b), all of the Criminal Procedure Code (Código Procesal Penal), constitutes the first ground of the third section of the appeal filed, since in the opinion of the prosecuting entity, the challenged judgment presents at least seven shortcomings in its intellectual reasoning, related to the confirmation of illegality of exhibits 543, 544, and 545, namely: 1.- Supposedly, it does not contain the citation of the norms of the Constitution, of Law 7425, or of the Criminal Procedure Code that expressly prohibit the use of legitimate documentary evidence within another criminal case. 2.- It argues that although the judgment [Telf1] generically alludes to the right to informational self-determination of article 24 of the Constitution and to the constitutional jurisprudence that develops it, it does not indicate the part of that norm or the specific precedents of the constitutional body that expressly prohibit using in one case documentary evidence legitimately obtained in another proceeding, which prevents the prosecuting body from verifying its existence and correspondence between its ratio decidendi and the appealed ruling (Cf. f. 175095 of Volume XLII of the case file). 3.- The judgment fails to rule on the factual and legal aspects that the Public Prosecutor's Office alleged in the oral hearing of the appeal, referring to the third ground of the appeal filed by Attorney [Name48] , on behalf of [Name [Name4]], and to the seventh ground of the appeal filed by the co-defendants [Name [Name4]], [Name [Name2]], [Name [Name3]], and [Name [Name1]], specifically regarding: a) [Name [Name2]] used products and services contracted in Costa Rica, both from the checking account of [[Name52] ] at Banco Cuscatlán in Costa Rica and from SAFI and Cuscatlán Valores, which also belong to the same Grupo Cuscatlán. b) According to the proven facts of the conviction judgment 167-2011, both the accused [Name [Name2]] and [Name [Name4]] used the services of Costa Rican private banking to prepare and receive money transfers and negotiable instruments from [Name [Name29]], the former through account executive [Name [Name79]] of Banco Cuscatlán and the latter, through BAC San José and its branches, such that they are private banks and subsidiaries that operate in Costa Rica and form part of the National Banking System, according to article 1 of the Organic Law of the National Banking System (Ley Orgánica del Sistema Bancario Nacional). Furthermore, that although the information requested from these banks requires a court order, in this particular case, a sui generis situation occurred, since aside from the fact that the acts were committed in Costa Rican territory, the Costa Rican Authorities did not order either the Grupo Cuscatlán or BAC, in Costa Rica, to send documents from Cuscatlán International Bank & Trust Limited or from Bahamas Bank Limited in that country; rather, it was both Financial Groups that voluntarily delivered the information generated in them, on the occasion of the commercial relationship with [Name [Name27]] and the co-defendant [Name [Name4]]. They argue that unlike the ruling [Telf1], the Trial Court, in the conviction judgment 167-2011, did make a thorough pronouncement in this regard, according to section “H. Objections of the technical defense of [Name [Name4]]” (Cf. f. 867 of the first instance judgment) 3. Opposition to the incorporation of Report No. 082-DEF because the documentation from the bank (sic) of the Bahamas, on which it is based, was obtained based on a letter rogatory that was not provided in this proceeding” (Cf. f. 175097 of Volume XLII of the case file). They reiterate that, based on the alleged lack of a ruling, the appealed Court reached an underived conclusion, with which it held that the Authorities of the aforementioned Financial Groups required an order directed to the Authorities of the Bahamas so that both the Grupo Cuscatlán and BAC would send to the Costa Rican Authorities the information that they themselves generated in Costa Rica, on the occasion of the commercial relationship they had with both co-defendants. 4) Again, the complainants argue that the judgment [Telf1] fails to rule on the factual and legal aspects raised by the Public Prosecutor's Office in the oral hearing of the appeal conducted, only now in reference to: a) That the international transfers carried out by the co-defendants [[Name49] ] and [[Name18] ], through bank accounts in Costa Rica, were not deposited in accounts in the Bahamas, but rather generated and stored here in Costa Rica at their request. b) That both the banking information of the Grupo Cuscatlán and of BAC form part of the bank secrecy that those entities were required to observe. However, once said secrecy was lifted, by means of a court order issued by a competent Judge, they were also obligated to deliver that information, as indeed occurred. c) The information obtained by order of a Costa Rican Judge was not in the possession of Banks in the Bahamas but rather of the financial group Cuscatlán (Banco Cuscatlán, SAFI, Cuscatlán Valores) and BAC, domiciled in Costa Rica, so it was unnecessary to issue a bank secrecy lifting order to Cuscatlán International Bank & Trust Limited or to BAC Bahamas Bank Limited. In addition to the fact that, in the case of the certificates that compromised the accused [[Name18] ], these were physically located at BAC San José here in Costa Rica, because the transactions carried out were made from our country, under the figure of the correspondent agreement with the Bank of the Bahamas (Cf. f. 175099-175100 of Volume XLII of the case file). By virtue of the foregoing, despite this, they argue that: “…the Sentencing Appeals Court (Tribunal de Apelación de sentencia) (sic) failed to rule on these factual and legal aspects specifically raised by the Public Prosecutor's Office and extensively developed by the trial court (sic), and without knowing from what reason, argument, or evidence, it started from the alternative factual hypothesis that (sic) the transfers made to the banks of the Bahamas from Costa Rica were documented in information that could only be under the exclusive custody of the off-shore banks, as if the transfer operations had been made entirely outside the national territory and solely at the off-shore bank. With this, the Sentencing Appeals Court managed to obtain an underived conclusion, which is that the authorities (sic) needed an order directed to the authorities (sic) of the Bahamas so that Grupo Cuscatlán and Grupo BAC would give the Costa Rican authorities (sic) information that they themselves had generated and was in their own possession here in Costa Rica, and that, moreover, had been generated on the occasion of the commercial relationship of the Grupo Cuscatlán and Grupo BAC with [Name [Name27]] and the accused [Name [Name4]] in accordance with national law and the services contract (sic) that in our country both parties signed…” (Cf. f. 175101 of Volume XLII of the case file, the emphasis belongs to the original). 5) According to the Public Prosecutor's Office, unlike judgment 167-2011, the appellate resolution does not substantiate why the correspondent relationship between BAC San José and Bahamas Bank Limited was not demonstrated, nor does it explain the reason why exhibit 413, referring to the official letter of January 31, 2006, signed by the Head of Operational Risk Management of BAC San José (Cf. f. 6673 of Volume XV of the case file), which reveals the existence of a correspondent agreement in which BAC San José operates as the agent bank of BAC Bahamas Limited, did not deserve credibility. Nor does it explain why it was possible for the co-defendants [[Name49] ] and [Name [Name4]], to carry out transactions before the banks of the Bahamas without needing to travel to that Island, if that correspondent agreement did not exist. Insisting further, that the Second Instance Judges even less explain why the note at folio 80 of Volume I of the case file, dated September 27, 2004, in which personnel of Banco Cuscatlán inform the Public Prosecutor's Office of the preparation of several documents to be sent to them, including, point e), “…operations under the direct correspondent agreement that Cuscatlán Bank and Trust Co Ltd in Nassau maintains with Banco Cuscatlán de Costa Rica…” did not deserve credibility (Cf. f. 175102 of Volume XLII of the case file. The emphasis belongs to the original). 6) They underline that the appellate Court in no way substantiates how, in the case of the co-defendants [[Name49] ] and [[Name18] ], the information from the Bahamas can legally be excluded from current account services provided in Costa Rica, nor do they mention the specific legal norm by which the information that these Costa Rican banks manage about the movements of a particular account, generated by the activities of its account holder in accounts in other countries as a result of money transfers that the client sent or received from abroad through that same current account in Costa Rica, can be excluded. 7) They add that the Second Instance Court did not examine the implications of the hypothetical exclusion of exhibits 543, 544, and 545 in this particular case, nor the thesis of the majority vote of conviction judgment 167-2011, of the Criminal Court of Finance and Public Function, insofar as there are other documentary elements provided by BAC San José that allow for the determination of the criminal responsibility of [[Name18] ], such as “the joint relationship of Annex No. 19 of report 082 DEF, relating to the movements of the bank account of [[Name52] ], with the evidence expressly authorized by [Name [Name2]] AND [Name [Name28]] through the notes dated September 21 and 29, 2004, contained in turn in exhibit No. 110, and likewise through folios 28 to 33 of exhibit No. 132, coming from Banco Cuscatlán…” (Cf. f. 175103 of Volume XLII of the case file, the capitalization belongs to the original). As a grievance, they outline that with the lack of substantiation of the judgment related to the allegations of that entity, in relation to exhibits 543, 544, and 545, harm was caused to the defense of the social interests entrusted to that Body, since the legal reasons considered by the Ad quem for rejecting the arguments presented are unknown to date, for which they request, as a claim, that the challenged judgment be annulled, the case file be returned to the competent Appeals Court, so that, with a new composition, a new judgment is issued that analyzes the points questioned in this ground. In accordance with article 468 subsection b) of the Criminal Procedure Code (Código Procesal Penal), at the same time, the Public Prosecutor's Office, in the second ground of the third section, claims erroneous application of substantive rules 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica) and disregard of article 615 of the Commercial Code, because the appealed judgment considered that the information provided by the Banks BAC San José and Grupo Cuscatlán in Costa Rica, in relation to the transfers made to financial entities domiciled in the Bahamas, exceeded the bank secrecy lifting order issued.

According to the petitioners, the conclusion reached by judgment [Telf1], when it states that: "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 done through official channels and, of course, with a judicial order to lift bank secrecy…" (Cf. f.175105 of volume XLII of the case file, emphasis supplied), is incorrect, precisely because articles 141, 145, and 147 mentioned above and cited verbatim in the Public Prosecutor's Appeal regulate the situation that occurred in this case, that is, "Offshore Banking," insisting that it is not true that, to obtain banking information from Bahamas Bank Limited, it was indispensable to carry out the corresponding procedures through the General Chancellery of the Republic, since a request made to the National Financial Group was sufficient. Also, that Article 615 of the Commercial Code was violated, because documents that, due to business relations between the Bank and the client, were recorded in those current accounts were erroneously excluded from the lifting of bank secrecy ordered to National Banks. They affirm that the serious error of the appealed decision consisted of misinterpreting the meaning and scope of bank secrecy, as well as arbitrarily limiting the information covered by the lifting of bank secrecy imposed on related Financial Groups, establishing through the doctrine of author [Name55], in the book "Contratos Bancarios. Su significado en América Latina" (Banking Contracts. Their Meaning in Latin America), Legis, 5th Edition, p. 380, that bank secrecy comprises "… all the information that has been provided to it on the occasion of its relationship with the client …" (Cf. f.172107 of volume XLII of the case file), specifically: "…•The private information it has received from its clients about their activities, businesses, plans, etc./ •Results of operations between bank and client, such as amount, destination, credit modalities, etc./ • The papers of its client that, by reason of the business relations, have come into the hands of the bank, and which it could not show to third parties without the procedural formalities indicated by law…" (Cf. f.172107 of volume XLII of the case file). Likewise, they point out that when applying this doctrine to the specific case, it is clear that the banking information that a financial group has in Costa Rica is not limited solely to that generated by client activities in our country, but also to accounts in other countries, as a product of money transfers made from the same account abroad, to reiterate that, the international transfers referred to in the ruling were made through bank accounts located in Costa Rica, so the information on those transactions to banks in the Bahamas, being generated and stored in Costa Rica, at the request of the co-defendants themselves, formed part of the bank secrecy that the Cuscatlán and BAC San José Financial Groups had to observe, but also formed part of the information that, once the corresponding bank secrecy was lifted, had to be delivered to the Costa Rican Judicial Authorities, as it was banking information, obtained in our country, by virtue of business relations between Bank-client, as indeed occurred. Based on the foregoing approach, they state that a judicial order to lift bank secrecy on Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary, therefore, from that perspective, items of evidence 543, 544, and 545 were valid. As a grievance, they state that the non-application of the aforementioned regulations caused illegitimate harm to the punitive claims of the Public Prosecutor's Office, because it prevented the development of a theory of the case connected with the remaining evidence, especially with the testimony of the collaborating witness [Name [Name34]]. As a claim, they request that the ground be granted, the annulment of the ruling be ordered, and the case be remanded for a new decision according to law. Finally, pursuant to subsection 468(b) of the Criminal Procedure Code, in the third claim of the third section of the Public Prosecutor's Office's cassation appeal, erroneous application of Article 24 of the Constitution is claimed, when invalidating items of evidence 543, 544, and 545. For the Public Prosecutor's Office, the alleged defect is verifiable when the Appellate Court, based on an erroneous conception of said article, equates the use of the same evidence in two different criminal cases to a "second lifting of bank secrecy," without a judicial order (Cf. f.175119 of volume XLII of the case file). Precisely, the prosecuting entity, in its challenge, explains two alleged errors that the Court of Appeals incurs when resolving the issue of the aforementioned items of evidence: 1.- The ruling presents confusion when interpreting Article 24 of the Constitution, when it refers to "Courts of Justice" (plural) for "the matters" (plural), since the rule does not specify that information, once obtained by means of a letter rogatory or lifting of bank secrecy, can only be used in the proceeding in which it was originally requested, whereas, on the contrary, it establishes the Courts of Justice as the only competent bodies to obtain such private information, when it presents the phrase "submitted to their jurisdiction," which means it is a use exclusive to criminal cases, where the request to the judicial body is indispensable, since it excludes those powers or institutions other than the Courts of Justice from obtaining it (Cf. f.175120 of volume XLII of the case file). 2.- For the claimants, the second-instance court disregards the procedural principles of publicity and community that govern evidentiary matters: bank secrecy in relation to the information revealed, collected, systematized, and made known to all parties can only be lifted once, precisely because it has lost its condition as secret (Cf. f.175121 of volume XLII of the case file). Furthermore, the petitioners mention that items of evidence 543, 544, and 545 acquired that publicity when they were added, discussed, and incorporated into debate in the CCSS-Fischel case, as part of the information sent from BAC Bahamas, in which copies of investment certificates referenced by co-defendant [Name [Name4]] to BAC Bahamas were delivered, which were received by BAC San José, for the purpose of being transferred to BAC Bahamas, along with an amount in dollars debited from that account, according to the correspondent contract, in which BAC San José operated as Agent of BAC Bahamas Bank Limited (Cf. f.175122 of volume XLII of the case file). On the same subject, the appellants make a verbatim transcription of folios 16016 and 16017 of the first-instance judgment 167-2011, to support the reasoning presented and to affirm that the documentation from BAC Bahamas delivered by Ms. [Name [Name56]], as Head of Operational Risk Management of BAC San José, is lawful, given that it was generated and materially located in Costa Rica. For the prosecuting entity, the lifting of bank secrecy of the BAC San José accounts, in addition to having been obtained in accordance with legal regulations, was public and common to all parties when it was incorporated into the CCSS-Fischel criminal proceeding, so it is absurd to maintain that in both proceedings the bank secrecy had to be lifted, since it is only one and is lifted only once. Likewise, the claimants affirm that the judgment is remiss in indicating the constitutional and legal norms (Law 7425 or the Criminal Procedure Code) that expressly prevent the use of evidence legitimately obtained in one proceeding from being used in another, so for the prosecuting representatives, that evidence must be studied from the doctrinal concept of "transferred evidence" (Cf. f.175124-175125 of volume XLII), which is based on the unity of jurisdiction, not requiring identity of parties, but the prior existence of an adversarial debate and cognizance of the evidence in the other proceeding, where its full efficacy has been determined, according to the principle of freedom of evidence, embodied in articles 182 and [Name57] of the Criminal Procedure Code and decision 2001-764 of the Third Chamber, from which they cite an excerpt (Cf. f.175125-175126 of volume XLII of the case file). Thus, for the prosecuting representatives, there was not only an evident connection between the CCSS-Fischel and ICE-[Name [Name29]] cases, but the information obtained from BAC Bahamas Bank Limited in the Bahamas, on the occasion of the connection with the BAC San José account in Costa Rica, in the CCSS-Fischel case, was made known to all the co-defendants, including [Name [Name4]], who had the opportunity, together with his defense counsel, to refute it, its incorporation in that other proceeding being valid. Therefore, they argue as a grievance, an illegitimate harm to the punitive claims of the Public Prosecutor's Office, an organ that could not prove its theory of the case due to the exclusion of the aforementioned evidentiary elements, the prosecutorial appeal requesting both the annulment of the appealed ruling regarding the declaration of illegality of evidence 543, 544, and 545, and the issuance of a new decision that resolves the point raised. For reasons of procedural economy and because they refer to interrelated points, the first, second, and third grounds of the Third Section of the prosecutorial appeal are resolved jointly, and are granted: Due to the nature of the claims, the following considerations must be made: i) Regarding items of evidence 543, 544, and 545 specifically: Just as the Criminal Court of the Public Treasury, of the Second Judicial Circuit of San José, did in its judgment 167-2011, before deciding on the lawfulness or unlawfulness of items of evidence 543, 544, and 545 cited above, it is necessary to dimension what pertains to that material. According to the accusatory document, found on folios 8020 to 8364 of volume XIX of the case file, items of evidence 543, 544, and 545 were described by the Public Prosecutor's Office in its petition for "FORMAL ACCUSATION AND REQUEST FOR OPENING OF TRIAL" (Cf. f.8020-8364 of volume XIX of the case file. The emphasis belongs to the original), within the section called "Judicial Letters Rogatory," as: "…543) Certified Copy of the request to the Criminal Court by the prosecuting body for the issuance of a Letter Rogatory addressed to the Republic of the Bahamas, dated October 5, 2004 (...) 544) Certified copy of the Letter Rogatory formulated by the Criminal Court of Costa Rica to the authorities of the Bahamas (…) 545) Certified copy of the Response to the letter rogatory to the Bahamas by Consul [Name58]), Bahamas and a copy of the English translation of the Letter Rogatory issued by the Criminal Judge of Costa Rica to the authorities of the Bahamas…" (Cf. f.8324 of volume XIX of the case file), since with evidence 543, the prosecuting body intended to prove, the "…requirement of the Public Prosecutor's Office to access the banking information related to [Name [Name4]], [Name [Name12]] among others for the 'off shore' of Banco de San José in the Bahamas (…)…" (Cf. f.8324 of volume XIX of the case file); with 544, both the legalization procedure for obtaining that evidence and "…the banking records of the operations made by [Name [Name4]] in '…the income of money from [Name [Name27]] to the account of [Name [Name12]] and the English translation of the request made…'" (Cf. f.8324 of volume XIX of the case file). Hence, as an important fact, the unnumbered official communication, of October 5, 2004, subsequently designated as evidence 544, refers to the letter rogatory sent by Licentiate [Name59], in his capacity as Criminal Judge of the Public Treasury and Public Function of the Second Circuit, through the Secretariat of the Supreme Court of Justice and the Ministry of Foreign Affairs to the Government of the Bahamas, which was carried out on the occasion of investigation 04-0005356-042-PE, brought against [Name [Name4]], [Name [Name23]], [Name [Name26]], [Name [Name57]], [Name [Name60]], and [Name [Name61]], for the crimes of aggravated corruption, illicit enrichment, and others, to the detriment of the Caja Costarricense del Seguro Social, in the case known as Caja-Fischel, as emerges from folio 6629 et seq. of volume XV of the case file. In that request, the factual framework motivating the action was also set out, indicating that it was an investigation to prove facts related to the "Proyecto Finlandia" (Project Finland) (facts 1 and 57) and to the "Purchase of House in [...]" (facts 58 to 59 since the document offered by the prosecuting body was determined to be incomplete) (Cf. f.00015313-00015314 of volume XXXI of the case file), given that, although other possible parties involved were mentioned in said request, it was essentially aimed at proving the conduct of defendants [Name [Name4]], [Name [Name23]], and [Name [Name26]], given that the information from accounts [Value 044], [Value 045], and [Value 046] of Banco de San José in the Bahamas was required, specifically, the names of the owners of the indicated accounts, in addition to the "…delivery of ALL the original documentation since the account was opened…" (Cf. f.6550 of volume XV of the case file. The emphasis is our own), which must include: "…for each account, but not be limited to: • Signature cards/• Documents related to the opening of the accounts/• Account general ledgers/• Periodic account statements/ • Deposit and withdrawal records/ • Instructions regarding the receipt or transfer of any funds to or from the account whether by fax, email, or any other means of communication/ • Correspondence to, from, or on behalf of the account holder(s)/• Memorandums related to the account/• Cashier's checks and documentation of the purchase of cashier's checks/• Balances/• Closing dates/• Inactivity/• Any other documentation of the account, operation, or financial activity…" (Cf. f.6550 of volume XV of the case file. The emphasis is our own), such that the content of evidence 545 corresponds to the records and documents that the bank accounts produced. Once all these evidentiary elements were provided by the prosecuting body in its request for the opening of trial, the defense counsels argued about their lawfulness, insofar as the fragmentation has been questioned, due to the document incorporated as evidence 543 being incomplete, as well as the absence of the corresponding judicial order to access sensitive information such as that relating to bank accounts abroad (Cf. f.00015310 of volume XXXI of the case file). However, judgment 167-2011, issued at first instance, through the majority vote, with respect to the defense claim of attorney [Name62], established in section "…1. Prueba bancaria procedente del Banco de San José en Bahamas requerida en el caso 'Caja-Fischel' y aportada como material probatorio en este proceso (pruebas Nº 543, Nº 544 y Nº 545)" (1. Banking evidence from Banco de San José in the Bahamas requested in the 'Caja-Fischel' case and provided as evidentiary material in this proceeding (items of evidence No. 543, No. 544, and No. 545)) (Cf. f.15310 of volume XXXI of the case file. The emphasis belongs to the original), the legality of both those sources of evidence and their subsequent incorporation into the present proceeding, when it determined that said material, despite coming from case file 04-5356-042-PE, against [Name [Name63]] and others, denominated "Caja-Fischel" and having been added to the present case file 04-6835-647-PE, could be transferred, as there was no express legal prohibition in this regard and determined that: "…at the time the Prosecutor's Office formulates the referred petition to the criminal judge (sic) of the preparatory stage so that they request from the competent authorities (sic) of the Bahamas, the evidence of their interest did not have the necessary clarity to foresee that these facts were unrelated to those it was then investigating in the context of the 'Caja-Fishel' case" (Cf. f.00015312 of volume XXXI of the case file). Likewise, that, although the copy of at least ten folios of the last part of the original document, delivered by the Costa Rican Prosecutor's Office, had been omitted, the truth was that bad intention could not be extracted from those photocopies, on the part of the prosecuting representatives, given that the authorization of Judge [Name59], to gather such evidence in the Bahamas, could be derived from them without any problem (Cf. f.00015313 of volume XXXI of the case file). However, the Court of Appeal of Judgment, in light of the defense challenges, determined that BAC San José in the Bahamas did not constitute an extension of its counterpart in Costa Rica, and therefore any banking information coming from that entity should have been processed through the corresponding legal means, that is, through the issuance of the respective judicial order, absent in this proceeding. Furthermore, according to the Ad quem, its use was restricted to case 04-0005356-042-PE, so its transfer to this new proceeding was not appropriate, apart from the fact that the correspondent relationship between BAC San José and BAC Bahamas Limited had not been demonstrated (Cf. f.174525-174526 of volume XLI of the case file). It is for these last reasons that the Public Prosecutor's Office again argues the lawfulness of these items of evidence, only now under the guidelines and restrictions contemplated in subsection 468(b) of the Criminal Procedure Code. Now then, based on the foregoing account, it is necessary to make some reflections of interest, since from the reading of the section called: "…B. Prueba espuria. En el segundo motivo del recurso planteado por [[Name18]], 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…” (B. Spurious evidence. In the second ground of the appeal filed by [[Name18]], the erroneous application of the rules concerning the lifting of bank secrecy is raised, so the banking evidence used to demonstrate the deposits in his favor is unlawful and unusable for conviction…) (Cf. f.174525 of volume XLI of the case file) contained in the challenged decision [Telf4], this Court of Cassation notes the existence of errors of erroneous application of constitutional and legal norms, infringement of the derivation principle, and absence of intellectual reasoning, with respect to item of evidence 110, alleged by the prosecuting body, based on the following considerations: i) Erroneous application of articles 24 of the Political Constitution; 1, 28, and 29 of Law 7425 of August 9, 1994, Law on the Recording, Seizure, and Examination of Private Documents and Intervention of Communications, and 615 of the Commercial Code. According to the reasoning set out in the challenged judgment, it is possible to verify that the Ad quem required, as a prerequisite for decreeing items of evidence 543, 544, and 545 as lawful, a new judicial order in the present proceeding, by maintaining that the information from BAC Bahamas Bank Limited, intended to lift the bank secrecy of the accounts of the accused [[Name18]], had to be obtained by means of a judicial decision that so permitted, the transfer of those evidentiary elements from one proceeding to another not being possible, when the truth is that the aforementioned articles do not contain an express prohibition against their use in subsequent cases. Certainly, before continuing with the study of the evidence mentioned above, it is necessary to reiterate that Article 24 of our Political Constitution enshrines the fundamental right to intimacy, freedom, and privacy of communications, for which the article is transcribed again, in order to establish that this norm indicates: "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. (The right to intimacy, freedom, and privacy 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 amendment 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, examination, or search of private documents, when it is absolutely indispensable to clarify matters submitted to their jurisdiction./ 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 the investigation of which the use of this exceptional power may be authorized and for how long. Likewise, it shall indicate the responsibilities and penalties incurred by officials who illegally apply this exception. Judicial decisions protected under this norm must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority./ The law shall establish the cases in which the competent officials of the Ministry of Finance and the Contraloría General de la República may review the accounting books and their annexes for tax purposes and to supervise the correct use of public funds./ A special law, approved by two-thirds of the total number of Deputies, shall determine which other bodies of the Public Administration may review the documents that such law indicates in relation to the fulfillment of their regulatory and supervisory competencies to achieve public purposes. Likewise, it shall indicate in which cases such review is appropriate./ Correspondence that is stolen and information obtained as a result of the illegal intervention of any communication shall not produce legal effects./ (Thus amended by Article 1 of Law No. 7607 of May 29, 1996. The emphasis is our own). From the cited Constitutional norm, it emerges that the fundamental right to intimacy enshrined in that article is intimately related to the sphere of protection of individuals' private lives within a Democratic State, since it encompasses: "…por aquellos fenómenos, comportamientos, datos y situaciones de una persona que normalmente están sustraídos al conocimiento de extraños (those phenomena, behaviors, data, and situations of a person that are normally withheld from the knowledge of strangers). Said sphere of intimacy is justified because, in a democratic system, every person has the right to maintain reserve about certain activities, data, documents, or opinions of theirs, since it is impossible or very difficult to coexist and fully develop the goals a person sets for themselves, without enjoying a framework of intimacy, protected from interference by the State or other persons (see Article 11.2.3 of the American Convention on Human Rights or Pact of San José)…" (Tribunal Contencioso Administrativo, Sección VI, decision 2010-02958, of eight hours, on August tenth, two thousand ten. The highlighting is our own). However, as defined by decision 2010-02958 of the Tribunal Contencioso Administrativo, Sección VI cited earlier, with emphasis on decision 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five, of the Constitutional Chamber, within the right to intimacy contemplated in Article 24 of the Political Constitution, the inviolability of private data and documents must be considered as a manifestation of that guarantee, insofar as it is understood as a safeguard so that private individuals cannot access them and, at the same time, as a prohibition for public or private entities that handle that information to provide it to third parties, given that: "…El artículo 24 de la Constitución Política le garantiza a todas las personas una esfera de intimidad intangible para el resto de los sujetos de derecho, de tal forma que aquellos datos íntimos, sensibles o nominativos que un ente u órgano público ha recolectado, procesado y almacenado, por constar en sus archivos, registros y expedientes físicos o automatizados, no pueden ser accedidos por ninguna persona por suponer ello una intromisión o injerencia externa e inconstitucional…" (Article 24 of the Political Constitution guarantees all persons a sphere of intimacy that is intangible for the rest of the subjects of law, in such a way that those intimate, sensitive, or nominative data that a public entity or body has collected, processed, and stored, as they appear in their archives, registries, and physical or automated files, cannot be accessed by any person as this would constitute an unconstitutional external intrusion or interference…) (Constitutional Chamber of the Supreme Court of Justice, decision 2005-02703, of ten hours seventeen minutes, on March tenth, two thousand five. In a similar sense, decision 2003-00136, of fifteen hours twenty-two minutes, on January fifteenth, two thousand three, cited in Tribunal Contencioso Administrativo, Sección VI, judgments 2010-02958, of eight hours, on August tenth, two thousand ten, and 838-2009, of eight hours thirty minutes, on May sixth, two thousand nine). Despite the indicated restrictions, the inviolability of private data and documents is not unrestricted either, since the Political Constitution itself establishes limitations or exceptions, when it refers to the law, Law 7425 having been enacted to establish specific regulations for the case of interventions of oral or written communications and the right to intimacy in general, while specifically, for bank secrecy, to Article 615 of the Commercial Code. In this regard, regarding the notion of bank secrecy, as an essential topic for the resolution of the grounds raised by the prosecuting body, it must be held that the Constitutional Chamber itself has understood it as: "…una manifestación legal del bien jurídico tutelado a través de lo dispuesto en el artículo 24 de la Constitución Política (derecho fundamental a la intimidad)." (…a legal manifestation of the legal right protected through the provisions of Article 24 of the Political Constitution (fundamental right to intimacy).

In that sense, banking secrecy is “...the duty imposed on every financial intermediation entity not to reveal the information and data it possesses about its clients from any banking operation or banking contract entered into with them, especially regarding current accounts, since Article 615 of the Commercial Code expressly enshrines it for that scenario...” (Sala Constitucional de la Corte Suprema de Justicia, voto 2005-02703, of ten hours and seventeen minutes, of March tenth, two thousand five, cited by Tribunal Contencioso Administrativo, Sección VI, voto 2010-02958, of eight hours, of August tenth, two thousand ten. In the same vein, Sala Constitucional de la Corte Suprema de Justicia, votos 2014-005599, of fourteen hours and thirty minutes, of April thirtieth, two thousand fourteen; 2004-14210, of fifteen hours and four minutes, of December fourteenth, two thousand four; and 2003-00136, of fifteen hours and twenty-two minutes, of January fifteenth, two thousand three. In a similar position, DE [Nombre64] (Mario), Banking Secrecy, in [Nombre65] (Gustavo) et al., Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p.525. A notion that, without doubt, is closely linked to Ley 7425, to which norm 24 refers, and especially to the first article, which imposes as the exclusive competence of the Courts of Justice the power to “authorize the search, seizure, or examination of any private document, when absolutely indispensable to clarify matters submitted to their knowledge,” it being that exclusively, Article 615 of the Commercial Code addresses the matter of banking secrecy in bank account contracts, stating that: “…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 Financieras, o la Dirección General de Tributación autorizada al efecto”. (As amended by Ley 9068, Ley para el cumplimiento del estándar de Transparencia Fiscal, of September 10, 2012. Emphasis added). From the regulations present in both norms, it is manifest that in our legal system, banking secrecy constitutes a derivation of the fundamental right to privacy, which presents as a fundamental requirement to be infringed, the issuance of a resolution issued by a competent jurisdictional body. However, by its nature, it can also be available through the free and voluntary authorization of the account holder. Nevertheless, in either of the two options, its use is not restricted to the criminal case in which the release of the banking documents was carried out. It must be recognized that the only restriction is with respect to written or telephone communications, which is expressly contained in Article 28 of Ley 7425, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, which specifically prohibits the transfer of evidence related to the interception of written or telephone communications, when it states: “Article 28. Restricted use of information. The results of the intercepting oral and written communications may not be used for any purpose other than that which motivated the measure” (Underlining is ours), since it must be remembered that in the case of interceptions of oral, written, telephone, or any other type of communications, Article 9 of the same Ley 7425, dealing with the violation of a fundamental right, by the principle of proportionality, specifies in an exhaustive list the crimes for which that restriction is permitted. On the subject, it should be noted that both Constitutional jurisprudence and that of this Sala Tercera have considered the use of results obtained through written or oral interceptions, ordered in one criminal proceeding and used in another of the same matter, or, for example, within sanctioning or disciplinary proceedings, as a practice violating the right to privacy (See in the same vein, Sala Constitucional de la Corte Suprema de Justicia, voto 2014-004035, of eleven hours, of March twenty-first, two thousand fourteen, in which reference is also made to rulings 1571-96, of twelve hours and thirty-six minutes, of March twenty-ninth, nineteen ninety-six; 06378-1995, of sixteen hours, of November twenty-second, nineteen ninety-five; and 2007-003890, of fifteen hours and fifty-one minutes, of March twentieth, two thousand seven; CED1, of sixteen hours and eight minutes, of September twenty-sixth, two thousand two; CED2, of fourteen hours and sixteen minutes, of March twenty-seventh, nineteen ninety-one; CED3, of ten hours and fifty-four minutes, of February eighteenth, nineteen ninety-four; CED4, of sixteen hours and forty-seven minutes, of March eighteenth, two thousand three. In the same vein, Sala Tercera de la Corte Suprema de Justicia, voto 2013-00073, of nine hours and seven minutes, of February twelfth, two thousand thirteen). However, the restriction contained in Article 28 of Ley 7425 could not be applied to private banking information derived from the lifting of banking secrecy, since this is only referred to the interception of oral and written communications. In contrast, Article 22 of the same Law contains a duty of confidentiality for those in charge of intercepting those communications, whether police, auxiliary justice administration personnel, or judges, when it expressly states, within the title of “RESPONSIBILITIES, PROHIBITIONS AND SANCTIONS,” that: “…Officials and employees participating in the interception of communications, the search, seizure, or examination of documents, or those who have the power to request these measures, are prohibited from the following: 1. Using the results of the interception for purposes other than those that motivated it…”. The foregoing evidences that these are two dissimilar situations, since there is no norm within Ley 7425 that restricts the transfer of evidence derived from banking information obtained from another proceeding, which leads to establishing that, in the absence of an express prohibition, such evidence, complying with the requirements of transferred evidence demanded by doctrine, can be used in subsequent proceedings, albeit of a criminal nature. On the subject, based on the principles of freedom and breadth of evidence, unity of jurisdiction, and procedural economy, the majority position of criminal procedural doctrine has admitted, with respect to evidentiary activity, the concept of “transferred evidence” (prueba trasladada), “borrowed evidence” (prueba prestada), or “transfer of evidence” (traslación de la prueba) as that evidence that has been produced for a specific proceeding and is asserted in another. Thus, for author [Nombre66], transferred evidence is nothing other than that which “…is practiced or admitted in another proceeding and is presented in authentic copy or by detachment of the original, if the law permits” (DEVIS [Nombre67] (Hernando), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68], 1981, p.367), while for [Nombre69] (Ada), The Evolving Process (O processo em evoluçâo), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in [Nombre70] (), Transferred Evidence (or produced in another judicial file), in [Nombre80] (Marcelo) et al., Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, it is “that which is produced in a proceeding to generate effects therein, later being transported documentarily to another, going on to generate effects in a different proceeding.” For both authors, the general rule for applying the transfer of evidence is that if there is no regulation to the contrary prohibiting it, any evidence can be useful in one or several proceedings; hence, as essential requirements for the admissibility of such evidence, the same author [Nombre70] (), Transferred Evidence (or produced in another judicial file), in [Nombre80] (Marcelo) et al., Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.371-377, has described at least five presuppositions for its validity: 1. Participation of the counterparty in the production of the evidence: that is, in obtaining the transferred evidence, the principles of contradiction and defense must have been guaranteed (In the same vein, [Nombre66] (Hernando), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68], 1981, p.367 and 373). 2. Identity of parties: for the majority doctrine, according to [Nombre72], the borrowed evidence need not possess the characteristic of identity of parties in both proceedings, but rather that the affected person(s) had the possibility of contradiction in the prior proceeding. 3. Collection of evidence in a jurisdictional proceeding: by the principle of jurisdictional unity, for the borrowed evidence to be valid, it is essential that its collection took place within a jurisdictional proceeding (In the same vein, [Nombre81] (), Teoría General de la Prueba Judicial, Volume I, Buenos Aires, 5th Edition, Editor [Nombre68], 1981, p.373). 4. Identity of facts: by the principle of ne bis in idem, absolute identity of the facts of both proceedings would not be necessary, but at least a simple relationship. 5. Compliance with legal formalities: according to [Nombre72], for the transfer of evidence in a second proceeding to be valid and effective, the regularity of the evidence obtained in the originating proceeding is indispensable. In this way, regarding the last of the established requirements, it is clear that if the procedural regulation in the legal system restricts evidentiary activity solely to the specific case, the transfer of evidence from one file to another would invalidate that evidence for the second proceeding, even when the origin of the first was valid. In this regard, in the present proceeding, the principles of contradiction and defense have been guaranteed, since the defendants and their defenses have been able to object to that evidence, to the point that the Tribunal de Apelación de Sentencia Penal declared it unlawful. Likewise, evidence items 543, 544, and 545 were collected within a jurisdictional proceeding, where there was a relationship between the facts of the first proceeding and those that the Public Prosecutor’s Office investigated in this other case, with the fulfillment of legal formalities finally being presented, as well as the non-existence of a legal or supra-legal norm that prevented the transfer of the aforementioned evidence. (On the requirements of transferred evidence, see [Nombre69] (Ada), The Evolving Process (O processo em evoluçâo), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in [Nombre70] (), Transferred Evidence (or produced in another judicial file), in [Nombre80] (Marcelo) et al., Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.367, cited in section VI of this judgment). Precisely, observe that the letter rogatory (exhorto) sent by Judge [Nombre73] to the Government of the Bahamas was grounded on Articles 62, 65, 154, 180, and 181 of the Código Procesal Penal, Article 41 of the Costa Rican Political Constitution, and Articles 5 and 6 of the Vienna Convention, such that, regarding the requirements demanded by our legislation concerning the letter rogatory, the resolution fully complied, and the questions aimed at determining its illegality based on its transfer from file 04-005356-042-PE or Caja-Fischel to the present case are not admissible, since Ley 7425, as analyzed supra, does not contain restrictions for this type of information, because the only reference to the prohibition of transferring evidence is contained in Article 28 of Ley 7425, but refers to other scenarios, namely interceptions of oral or written communications. That being the case, this Chamber not finding any defect under the indicated regulations that conflicts with the requirements of transferred evidence, in application of the principle of freedom of evidence contained in Article 182 of the Código Procesal Penal, the lawfulness of that evidence must be declared. Moreover, note that when the Tribunal de Apelación resolved the defense’s challenges, it also failed to determine the procedural importance of said evidentiary body, by dispensing, in constructing its reasoning, with examining whether it was the product of an independent source or whether, on the contrary, it was evidence derived from another that was transcendental for the proceeding. In this sense, given that the Tribunal de Apelación declared evidence null that was not, due to the erroneous application of constitutional and legal norms, the judgment [Telf4] lacks sufficient motivation and must be declared so. Despite this, in strict adherence to the legal restrictions incorporated with the entry into force of Ley 8837 to the competencies of this Sala Tercera regarding evidentiary evaluation, it will be for the Tribunal de Apelación de Sentencia, with a new composition, to analyze, in accordance with the rules of sound criticism, evidence items 543, 544, and 545, from their integral assessment in consonance with the evidentiary elements incorporated into the debate. ii) The second-instance judgment presents an infringement of the principle of derivation, which prevents its efficacy: In accordance with the grounds contained in folios 174525 to 174526 of volume XLI of the file, it is clear that the Tribunal de Apelación, in judgment [Telf1], incurs an infringement of the rules of sound criticism, specifically the principle of derivation, when it categorically affirms that evidence items 543, 544, and 545 are unlawful and unusable within this proceeding, due to the fact that: “…the supposed correspondent relationship (corresponsalía) or contract of reciprocal representation between BAC San José and Bahamas Bank Limited is another important matter that has not been demonstrated in the case and neither is it known if the mentioned banks can exchange available information about their accounts by mere internal administrative request for the normal course of their financial activities (…) That being the case, the evidence obtained without any correspondent relationship contract between the banks, and without the lifting of banking secrecy, makes the information obtained unlawful and unusable as evidence in the criminal proceeding under examination. In addition, the effects already considered of the appeal filed by the defendants [Nombre [Nombre1]], [Nombre [Nombre2]], [Nombre [Nombre3]], and [Nombre [Nombre4]] apply…” (Cf. f.174526 of volume XLI of the file. Emphasis added), while from evidence 413, related to the official communication of January thirty-first, two thousand six, signed by the Operational Risk Management Chief of BAC San José, [Nombre [Nombre56]] (Cf. f.6673 of volume XV of the file), a different conclusion can be drawn, since the mentioned document certifies that: “…In accordance with our correspondent relationship contract, in which BAC San José operates as agent bank for BAC Bahamas Bank Limited and duly authorized by the legal advisory and the Administration of said institution, we proceed to make the following clarifications related to the information delivered by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, document with reference CLE-GEN-00293, thereby responding to your official communication No. 40-FADECT-06-MM of January 19, 2006./ As part of the information sent by BAC Bahamas to the Attorney General of the Bahamas on June 9, 2005, photocopies of the following three investment certificates with their respective coupons were delivered (…) These certificates were received by BAC San José on January 15, 2002, for transfer to BAC Bahamas together with an amount of $8,165.23 debited from account No. [Valor 047] in the name of [Nombre [Nombre4]]. With this money plus the principal and interest of certificate [Telf5] in the name of [Nombre [Nombre4]], totaling $161,725, BAC Bahamas constituted on January 15, 2002, certificate No. 720096897 in the name of [Nombre [Nombre4]] for $200,000…” (Cf. f.6673 of volume XV of the file). In this way, it is evident that from said evidence it is possible to derive a commercial relationship between BAC San José and BAC Bahamas Bank Limited, which determines, without a doubt, the existence of the mentioned correspondent relationship between the banking entities indicated above and that the conclusion of the Tribunal de Apelación did not integrally consider evidence of transcendental value, such as the content of evidence 413, the aforementioned affirmation being taken lightly. iii) Neither did the Ad quem assess evidence 110, which has a special relationship with evidentiary material 543, 544, and 545. Within the concept of banking secrecy, as maintained by doctrine, “…there exist limits (…) of a merely private nature or subjective limits, such as the express consent of the client, interbank information, or the legitimate interest of the Bank in the lifting of banking secrecy, the latter normally referring to the case of conflict with the client…” (GUILLÉN [Nombre74]), [Nombre75], El secreto bancario y sus límites legales (límites de derecho público), [Nombre76], 1997, p.115. Regarding the express consent of the client, it has also been established that “…the basis of this limit finds its raison d'être in the fact that the same holder of the secrecy, the principal interested party in maintaining the reserve, consents to the revelation of the secrecy itself, considered as the will to conceal. The express consent of the client to the lifting of banking secrecy constitutes a limit unanimously admitted by doctrine, which must be placed in relation to the waivable nature of the right to privacy in general that every person, both natural and legal, possesses. Consent in these cases does not imply the absolute abdication of this right or an absolute and abstract renunciation thereof, but rather concerns its partial and voluntary relinquishment of the faculties conferred by the right to privacy…” (GUILLÉN [Nombre77]), El secreto bancario y sus límites legales (límites de derecho público), [Nombre76], 1997, p.115-116. This subjective limit of the right to banking secrecy, unlike other legal systems, is legally recognized in our country in Articles 615 of the Commercial Code and 29 of Ley 7425, since the lifting of banking secrecy can derive both from an express judicial resolution and from the respective authorization of the holder thereof. However, in the specific case, that evidence was never examined in relation to the authorizations issued by the defendant [Nombre [Nombre2]] and [Nombre [Nombre28]], who, freely and voluntarily, empowered Grupo Financiero Cuscatlán to provide any information and documentation requested by the Judicial Authorities of Costa Rica regarding their bank accounts, and neither was it examined that those Banks, in light of Articles 141, 145, and 147 of the Ley Orgánica del Banco Central de Costa Rica, have the particularity of forming a financial group headquartered in Costa Rica, where the information from those accounts was stored in our country, which allowed establishing that all the movements in the accounts were made from Costa Rica. On this point, it must be recognized that Article 29 of Ley 7425 establishes that: “There shall be no illegitimate intrusion when the holder of the right grants express consent. If there are several holders, the express consent of all must be obtained. This consent shall be revocable at any time” (Emphasis added), which implies that this right to privacy is available to the account holder, in such a way that the subject can waive it, as long as it is done freely and spontaneously, since banking secrecy, belonging to the natural person, is available individually or through a legal entity. (See in the same vein, DE [Nombre64] (Mario), Banking Secrecy, in [Nombre65] (Gustavo) et al., Legitimación de Activos Ilícitos, Buenos Aires, Ad-Hoc, 2010, p.525.), so that, if co-defendant [Nombre [Nombre2]] and his wife decided, through respective official communications, to disclose their accounts to third parties, given the criminal proceeding pending against them, this Chamber finds no illegality whatsoever, being, on the contrary, that it is considered that said evidence should have been analyzed by the competent Tribunal in light of evidence items 543, 544, and 545, which is notably absent in the case at hand. In conclusion, in accordance with Articles 467, 468, 469, and 471 of the Código Procesal Penal, the first, second, and third grounds of the Third Section of the Cassation Appeal of the Public Prosecutor’s Office are granted, and therefore, for these reasons, the acquittal judgment issued in favor of [Nombre [Nombre1]], [Nombre [Nombre2]], [Nombre [Nombre3]], [Nombre [Nombre4]], [Nombre [Nombre22]], [Nombre [Nombre20]], and [Nombre [Nombre21]] is annulled…”. As extracted from the text transcribed above, the Sala Tercera concluded that evidence numbers 543, 544, and 545 were lawful, just as the trial court had indicated. Specifically, the cassation body held that, being not proscribed by the legal system, there was no impediment to transferring the information related to BAC Bahamas Bank Limited, obtained in proceeding 04-005356-042-PE, known as Caja-Fischel, to the present case. Likewise, it concluded, based on evidence No. 413, that there was a correspondent relationship contract under which BAC San José operated as agent bank for the former. Thus, by accepting the claims made by the requesting body, the Chamber settled the questions raised by the defense counsel of [Nombre [Nombre4]] and by the defendant himself, since by reason of the first point (the legitimacy of the transfer of evidence carried out), it is ruled out that this information should be weighed solely in proceeding [Nombre78], or that it was necessary to fulfill in this matter the requirements that had already been satisfied in the originating proceeding (e.g., the judicial resolution that authorized the lifting of banking secrecy). Also, because of the foregoing, it loses relevance that, when translating the letter rogatory from English to Spanish, a piece of data contained in the one sent to the Bahamas was omitted, namely, the indication that the evidence would be used solely to elucidate the facts investigated in case [Nombre78] (cf. folios 6,628 and 6,6524 of volume XV). This is to the extent that such affirmation, which in the letter rogatory is inserted in the section intended to explain the pertinence of the requested evidence (f.

6,628 front, second paragraph), it does not change the fact that within Law No. 7425 there is no rule whatsoever prohibiting the transfer of banking information obtained in one procedure to another, the only scenario in which, according to the Third Chamber, the transferred evidence would be unlawful. Likewise, due to the second point (the existence of the correspondent contract between BAC San José and Bahamas Bank Limited, which for the cassation court is reasonably inferred from the evidence, particularly from item No. 413), the local bank had no impediment whatsoever to deliver the questioned information. Finally, the Third Chamber, upon ordering the remand, instructed this court to analyze evidence items 543, 544, and 545, “… from their integral assessment in consonance with the evidentiary elements incorporated into the debate.” In this regard, two considerations must be made. The first is that the appellant is not challenging the examination that the trial court made of such evidence, or the conclusions it derived from them, but rather their legitimacy, understanding that they were obtained and incorporated into the procedure irregularly, a point that, as already explained, was settled in cassation, concluding that the evidence is lawful. The second is that indeed, as the lower court (a quo) indicated on folio 15,323 front of volume XXXI and as the Third Chamber suggests in its resolution, specifically on folios 176,472 front to 176,473 back, the cited evidence also lacks the essentiality that is claimed, since there is other evidence that allows establishing the transit of funds, namely, the information gathered in relation to the transactions carried out by [Name [Name27]] through the different entities that make up the Cuscatlán Financial Group, of special importance, evidence item No. 132, folios 28 to 33, which this chamber has reviewed and which contains the three original investment certificates and their respective coupons, all with the received stamps of BAC San José and the endorsement of BSJ International Bank. Thus, the grounds must be rejected, not only because evidence numbers 543, 544, and 545 have been considered lawful by the Third Chamber which, in essence, confirmed the trial court's position, but also because there is other evidence that similarly allows associating [Name [Name4]] with the admission of the certificates in question. Therefore, the objection is declared without merit.

This is a possibility that may only be considered in the following cases: a) That the subject has died or suffers from a chronic illness that prevents his prosecution and there is a risk that the facts may be subject to the statute of limitations (prescribir), b) is in default (rebeldía) and this prevents the facts from being prosecuted within a reasonable time, or c) no penalty is imposed on him because he is exempt from criminal responsibility or because it has been extinguished. Comparing our regulation on confiscation (comiso) with that of other countries allows us to conclude, without any doubt, that considering *the crime* as the sole prerequisite for applying this legal institution is insufficient. If it concerns effects and instruments, their confiscation must be conditioned on the intrinsic dangerousness of the asset and the need to protect the community against its eventual use. In the case of proceeds (ganancias), the prerequisite for confiscation must be the demonstration of conduct that is at least typical and unlawful (típica y antijurídica) and from which an irregular enrichment (enriquecimiento irregular) was obtained. What is not possible, in this chamber's view, is for the legal operator, faced with a clear rule, to resort to an extensive interpretation (interpretación extensiva) to give cited Article 110 a content it does not have, with a view to ordering a confiscation that is not proper. That said, in this particular case, at folio 16,339 front of volume XXXIV, the trial court ordered the confiscation of investment certificate No. [Telf1] which was renewed in certificate No. [Telf2] for the amount of ₡5,463,555.65 (five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five céntimos), without stating any reason why it should proceed in this manner, that is, without explaining, whether in this subsection or in any other part of the judgment, what the relationship is between said certificate and the crime, specifically, whether it is an instrument, an effect, or a proceeds derived from it. This is a transcendental error if two issues are taken into account. The first is that the conduct of [[Name18]], of admitting economic retributions coming from [[Name19]] after leaving the position of deputy, is atypical (atípica). These patrimonial advantages (ventajas patrimoniales) cannot be considered proceeds from the crime (ganancias provenientes del delito) and therefore, are not subject to confiscation. The second point to consider is that although the trial court, in the subsection designated to examine the situation of [Name [Name20]], affirmed that certificate No. [Telf2] is related to the vehicle RAV 4 license plate [[Placa1]] that this defendant bought, <u>the conclusion is not drawn from the evidence cited to support the foregoing</u>. Let us see. According to the relationship of accused and proven facts, the vehicle RAV 4 license plate [[Placa1]] was acquired by [Name [Name20]] for his daughter, [[Name21]], with monies originating in [Name [Name22]] that were transferred to him in the year 2003 and that were in the bank account of [Name [Name23]], located in Panama (thus, cf. order of opening of trial (auto de apertura a juicio), imputed facts numbers 237 to 239, f. 10,484 to 10,485 front, volume XXIII and proven facts numbers 224 to 228, previously transcribed). Based on the evidence identified with numbers 418 to 422, the trial court indicated that in April 2004, [Name [Name24]] sold the mentioned vehicle to Mr. [Name [Name25]] and that on April 30, 2004, he acquired the vehicle Peugeot style Berlina license plate [[Placa2]] (f. 16,040 to 16,044, volume XXXIII), this being *“…delivered to the Procuraduría General de la República* <u>*as confirmed in evidence No. 764*</u><u> </u><u>*”*</u> (F. 16,044 front). Now, having reviewed this last piece of evidence by this Court of Criminal Sentencing Appeals (Tribunal de Apelación de Sentencia Penal), evidence that is described in the trial judgment as *“Official letter AEP-386-2010 of August 18, 2010, signed by [Name26] from the Procuraduría de La Ética y La Función Pública through which the liquidation of the fixed-term deposit certificate No. [Telf1] and interest coupon 62445223-1 is requested, product of the sale of the vehicle delivered by [Name [Name20]]* *to the Procuraduría General de la República”*, we have that it <u>only alludes to the fixed-term deposit certificate No. [Telf1] and to interest coupon 62445223-1, renewed in certificate No. [Telf2] for the amount of ₡5,463,555.65, in the name of the Procuraduría General de la República. Thus, contrary to what the</u> *<u>a quo</u>* <u>states without foundation, at least from evidence No. 764 the relationship between the certificate and the funds obtained after the sale of the vehicle Peugeot license plate [[Placa2]] cannot be inferred. Now, notwithstanding the foregoing, ordering the remand (reenvío) to discuss the point again is unnecessary, since if what is stated in the appealed judgment regarding the origin of the monies supporting certificate No. [Telf2] (and which is a renewal of No. [Telf1]) is admitted, an extreme which was also not subject to any challenge, the only conclusion that can be reached is that this asset does not have a criminal origin, since for the year 2003 [[Placa3]]</u> <u>did not hold the condition of deputy and for that reason, the admission of the economic retribution used to buy the vehicle RAV 4 is a conduct that although reprehensible in ethical terms, is not typical (típica)</u>. Even less could one speak of a criminal wrong (injusto penal) and even less of the commission of a crime as the source of the resources whose confiscation is sought. Finally and for greater abundance, it is important to note that the accusation formulated by the requesting body is absolutely omitted regarding the link between the CED1 with the proceeds originating in [[Placa4]], or at least with the motor vehicle that, according to the *a quo*, was acquired using those proceeds, an issue that was indispensable to guarantee the discussion on the factual prerequisites (presupuestos fácticos) that authorize the imposition of confiscation. The issue is so clear that it was the trial court that, violating the principle of correlation between accusation and judgment (principio de correlación entre acusación y sentencia) and without the due grounding (fundamentación) -as already indicated-, proceeded to incorporate into the judgment the information that is missing, with the purpose of explaining how part of the proceeds obtained by [[Name18]] underwent multiple transformations until becoming investment certificate No. [Telf2], whose confiscation it ordered. In summary, we understand that in this particular case the confiscation of the certificate is not proper, not only because the decision was adopted without adequate grounding, but because in any case, starting from the facts demonstrated by the *a quo* and which were not subject to appeal -some also, not described in the accusation, thus violating the principle of correlation between accusation and judgment-, the funds that support the certificate did not originate in a crime, but in an atypical fact (hecho atípico). For the foregoing, the claim is upheld. The judgment is annulled solely insofar as it ordered the confiscation of investment certificate No. [Telf1] which was renewed in certificate No. [Telf2], ordering its return to whomever proves to be its legitimate owner.” **A.5)** By majority, with the dissenting vote of Associate Judge Camacho Morales, the challenge for defective procedural activity filed in defense of the accused [Name01 018] and requested as being of extended application for the remaining defendants regarding 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 Associate Judge Camacho Morales, the remaining challenges, objections, and exceptions related to the charged offenses 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 criminal prosecution, [Name01 063] is acquitted of all penalty and liability for the crime of **RECEIVING STOLEN PROPERTY (RECEPTACIÓN)**, Nombre02 reclassified, and of **REAL FAVORING (FAVORECIMIENTO REAL)** both to the detriment of the **ADMINISTRATION OF JUSTICE (ADMISTRACIÓN DE JUSTICIA)**; due to atypicality, [Name01 041] is acquitted of a crime of **PENALTY OF THE CORRUPTOR (PENALIDAD DEL CORRUPTOR)** in relation to the crime of AGGRAVATED CORRUPTION by IMPROPER BRIBERY (COHECHO IMPROPIO) attributed to [Name01 018] and reclassified to the crime of **ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO)** to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**. Likewise, by unanimity, in application of the In dubio pro reo principle, [Name01 033] is acquitted of all penalty and liability for four crimes of **ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO)** to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)** and [Name01 001] is acquitted of one crime of **FRAUD BY SIMULATION (FRAUDE DE SIMULACIÓN)** in relation to the transfer of the property registered under Filing Number [Value 001], Sub-Filing , by deed number 244 executed before the notary public Nombre01 to the detriment of the **COSTA RICAN INSTITUTE OF ELECTRICITY (INSTITUTO COSTARRICENSE DE ELECTRICIDAD)** and **COLLECTIVE AND DIFFUSE INTERESTS (INTERESES COLECTIVOS Y DIFUSOS)**. **B.2)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 041] is declared a responsible co-perpetrator of four crimes of **PENALTY OF THE CORRUPTOR (PENALIDAD DEL CORRUPTOR)** for **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)**, in material concurrence, in relation to [Name01 022], [Name02 001], **[Name01 064]** and [Name01 068], to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed for each of the crimes the penalty of FIVE YEARS OF PRISON for a total of TWENTY YEARS OF PRISON which, in application of the rules of material concurrence, are reduced to **FIFTEEN YEARS OF PRISON**, a sanction which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention served has been deducted. The absolute disqualification requested by the Fiscalía is rejected due to the lack of concurrence of the legal prerequisites for its application. **B.3)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 028] is declared a responsible co-perpetrator of three crimes of **PENALTY OF THE CORRUPTOR (PENALIDAD DEL CORRUPTOR)** for **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)** in relation to [Name01 022], [Name01 001] and [Name01 064] to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed for each crime the penalty of **FIVE YEARS OF PRISON** for a total of **FIFTEEN YEARS OF PRISON**, a sanction which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention served has been credited. The absolute disqualification requested by the Fiscalía is rejected due to the lack of concurrence of the legal prerequisites for its application. **B.4)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 046] is declared a responsible co-perpetrator of a crime of **PENALTY OF THE CORRUPTOR (PENALIDAD DEL CORRUPTOR)** for **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)** regarding [Name 068], and a responsible perpetrator of a crime of **PENALTY OF THE CORRUPTOR (PENALIDAD DEL CORRUPTOR)** for **PROPER BRIBERY (COHECHO PROPIO)** in relation to [Name 064], both to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed the penalty of 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 which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention that he may have served has been deducted. The absolute disqualification requested by the Fiscalía is rejected due to the lack of concurrence of the legal prerequisites for its application. **B.5)** By majority, with the dissenting vote of Associate Judge Camacho Morales, **[Name01 022]** is declared a responsible perpetrator of the crime of **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)** to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed the penalty of **FIVE YEARS OF PRISON**, which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention served has been deducted. Likewise, he is **DISQUALIFIED** for a period of **TWELVE YEARS** from obtaining and holding public employments, positions, or commissions. **B.6)** By majority, with the dissenting vote of Associate Judge Camacho Morales, **[Name01 001]** is declared a responsible perpetrator of a crime of **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)**, to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, and a crime of **FRAUD BY SIMULATION (FRAUDE DE SIMULACIÓN)** regarding the vehicles transferred by deed number 267 before the notary public Nombre03 to the detriment of the **COSTA RICAN INSTITUTE OF ELECTRICITY (INSTITUTO COSTARRICENSE DE ELECTRICIDAD)** and **COLLECTIVE AND DIFFUSE INTERESTS (INTERESES COLECTIVOS Y DIFUSOS)**, being imposed the penalty of FIVE YEARS OF PRISON and TEN YEARS OF PRISON respectively, for a total of **FIFTEEN YEARS OF PRISON**, a sanction which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention that he may have served has been deducted. Also, he is **DISQUALIFIED** for a period of **TWELVE YEARS** from obtaining and holding public employments, positions, or commissions. **B.7)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 006] is declared a responsible perpetrator of a crime of **ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO)**, Nombre02 reclassified, committed to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed the penalty of **TWO YEARS OF PRISON** which must be served in the place and manner determined by the respective penitentiary regulations after crediting the preventive detention served. Likewise, he is disqualified for a period of **TWELVE YEARS** from obtaining and holding public employments, 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 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 prison, in which case this benefit will be revoked. **B.8)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 033] is declared a responsible instigator of the crime of **AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA)** in the modality of **IMPROPER BRIBERY (COHECHO IMPROPIO)** to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed the penalty of **FIVE YEARS OF PRISON** which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention served has been deducted. Likewise, he is **DISQUALIFIED** for a period of **TWELVE YEARS** from obtaining and holding public employments, positions, or commissions. **B.9)** By majority, with the dissenting vote of Associate Judge Camacho Morales, [Name01 018] is declared a responsible perpetrator of a crime of **ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO)**, Nombre02 reclassified, committed to the detriment of **PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA)**, being imposed the penalty of **TWO YEARS OF PRISON** which must be served in the place and manner determined by the respective penitentiary regulations once the preventive detention served has been credited, without considering the concurrence of the legally established requirements to be eligible for the benefit of conditional execution of said sanction. Likewise, he is **DISQUALIFIED** for a period of **TWELVE YEARS** from obtaining and holding public employments, positions, or commissions. **C) Civil aspects: C.1)** By unanimity, regarding the **CIVIL ACTION FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA)** filed by the **COSTA RICAN INSTITUTE OF ELECTRICITY (INSTITUTO COSTARRICENSE DE ELECTRICIDAD)**: **C.1.1)** The civil lawsuit filed by the referred institute against [Name 041], who made an express waiver so that the civil plaintiff be ordered to pay costs, is deemed abandoned. **C.1.2)** No ruling is made regarding the substantive right discussed in relation to the civil actions filed by the COSTA RICAN INSTITUTE OF ELECTRICITY against the civil defendants [Name01 028], [Name 022], [Name 033], [Name 063], [Name 018], [Name 001], [Name 006], [Name 058]. and [Name 060]. **C.1.3)** The civil lawsuit brought by the COSTA RICAN INSTITUTE OF ELECTRICITY against the cited defendants is resolved without a special order as to costs for either party. **C.1.4)** Once the judgment is final, the lifting of the attachments decreed in favor of the COSTA RICAN INSTITUTE OF ELECTRICITY regarding the cited civil lawsuits is ordered. **C.1.5)** The request for condemnation for damages caused by the COSTA RICAN INSTITUTE OF ELECTRICITY through the attachments executed to guarantee the results of this process is rejected. **C.2)** By unanimity, regarding the **CIVIL ACTION FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA)** filed by the **GENERAL PROCURATORSHIP OF THE REPUBLIC (PROCURADURÍA GENERAL DE LA REPÚBLICA)**: **C.2.1)** No ruling is made regarding the substantive right discussed in relation to the civil actions brought by the GENERAL PROCURATORSHIP OF THE REPUBLIC against the civil defendants [Name01 041], [Name 028], [Name 022], [Name 033], [Name 063], [Name 018], [Name 001], [Name 046], [Name 006], [Name 058]., [Name 053]., [Name 057]., [Name 056]., [Name 055]. and [Name 054].. **C.2.2)** The civil lawsuit brought by the GENERAL PROCURATORSHIP OF THE REPUBLIC regarding the cited civil defendants is resolved without a special order as to costs for either party. **C.2.3)** Upon the finality of the judgment, the lifting of the attachments decreed in favor of Nombre03 in relation to the civil lawsuits filed is ordered. **C.2.4)** The request for condemnation for damages caused by the GENERAL PROCURATORSHIP OF THE REPUBLIC through the attachments executed to guarantee the results of this process is rejected. **D) Confiscation (Comiso) and declaration of instrumental falsehood:** By majority, with the dissenting vote of Associate Judge Camacho Morales, the confiscation of the following assets is ordered in favor of the State: **D.1)** The properties registered in the Public Registry of Property: Partido de Guanacaste under the Folio Real system Filing Number [Value 002], Sub-Filing 000; Partido de Guanacaste under the Folio Real system Filing Number [Value 003], Sub-Filing 000; Partido de Guanacaste, Folio Real system Filing Number [Value 005], Sub-Filing 002; and Partido de Heredia registered under the Folio Real system, Filing Number [Value 006], Sub-Filing 000. **D.2)** Of the Investment Certificate No. 62445223 which was renewed into Certificate No. 62736757 for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five cents, in the name of Nombre01 Nombre03. **D.3)** Of the sums of fifty-eight thousand dollars and eighty-one thousand four hundred dollars, economic backing of checks No. 11387-9 from Banco Interfin and No. 201-722218 from Bank of New York Delaware, both issued to [Name01 064] and deposited to the order of this tribunal. **D.4)** Of the shares of [Name01 028] in the company [Name01 057]., owner, among others, of the properties registered in the Public Registry under the Folio Real system Filing Number [Value 007], Sub-Filing 000 and Filing Number [Value 009], Sub-Filing 000. **D.5)** Of the vehicles make Nombre04 Grand Vitara XL, plate No. [Value 010]; and make Nombre04 Jimny, plate No. []. **D.6)** The instrumental falsehood of public deed No. 267 granted before the notary public Nombre03 by [Name01 001] and [Name01 075] is declared, therefore the transfer of assets arranged in said instrument by the convicted individuals [Name01 076] must be annulled, proceeding with the corresponding registry rectifications. **E) Precautionary measures: E.1) Preventive detention (Prisión preventiva)**: by majority, with the dissenting vote of Associate Judge Camacho Morales, the request of the Fiscalía is accepted and the precautionary measure of preventive detention is decreed regarding [Name01 028] and [Name01 001] for a period of **eighteen months** to be computed from the twenty-seventh of April, two thousand eleven, until the twenty-seventh of October, two thousand twelve, and regarding [Name01 041] for a period of **twelve months** to be computed from the twenty-seventh of April, two thousand eleven, until the twenty-seventh of April, two thousand twelve.

The foregoing is due to the change in the situation held by the defendants [Nombre01 041], [Nombre01 028], and [Nombre01 001] before this process, 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) Supplementary measures**: by majority, with the dissenting vote of alternate judge Camacho Morales, at the request of the Public Prosecutor's Office (Ministerio Público) representation, the substitute precautionary measures (medidas cautelares sustitutivas) of pretrial detention (prisión preventiva) are imposed on the convicted individuals [Nombre01 022], [Nombre01 033], [Nombre01 046], and [Nombre01 018], consisting of: the prohibition from leaving the country from April twenty-seventh, two thousand eleven, and until the judgment becomes final (firmeza del fallo), for which purpose each of the convicted 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, in witness whereof a record must be kept where they affix their signatures. The described measures shall be in force from the reading of the operative part of the judgment and until the judgment becomes final, with the warning that in the event of non-compliance with the established conditions or the indicated substitute precautionary measures, the now-deferred pretrial detention (prisión preventiva) could be applied. **F) Other relevant aspects:** **F.1) Costs of the proceeding**: unanimously, the costs of the criminal proceeding are to be borne by the State. **F.2) Personal costs**: unanimously, the costs of the proceeding regarding the exercise of the criminal action are borne by the defendants. Given the proven economic solvency of the convicted individuals [Nombre01 022], [Nombre 001], [Nombre02 046], and [Nombre02 006], who opted for legal counsel from lawyers of the Public Defender's Office (Defensa Pública) of the Judicial Branch (Poder Judicial), in accordance with articles 152 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial) and 265 of the Criminal Procedure Code (Código Procesal Penal), each must pay the fees of the professionals who have assisted them during this proceeding. This item is set at the sum of TEN MILLION COLONES, which covers their professional performance from their appearance until the issuance of this judgment, not including any appeals and other procedures that may be required after its issuance. Each of the accused must pay said sum to the Judicial Branch within fifteen days following the date on which the judgment becomes final, with the consequent seizure and auction of their assets in the event of 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 from leaving the country for [Nombre01 022], [Nombre01 046], [Nombre01 033], and [Nombre02 018] to the General Directorate of Immigration and Foreigners (Dirección General de Migración y Extranjería). Once this judgment is final, the corresponding official letters shall be sent to the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) regarding the absolute disqualifications of [Nombre01 022], [Nombre01 033], [Nombre 018], [Nombre 001], and [Nombre02 006] from holding public office by popular election, and to the Civil Service (Servicio Civil) for the absolute disqualifications in the appointment to other public jobs, positions, and commissions. Notify the Public Property Registry (Registro Público de la Propiedad) of the instrumental falsehood declared with respect to the deed granted before the notary public Nombre03. Send the communications to the National Institute of Criminology (Instituto Nacional de Criminología), the Sentence Execution Court (Juzgado de Ejecución de la Pena), and the Judicial Registry (Registro Judicial) so they may proceed accordingly. NOTIFY…” (F. 16,497 to 16,506 frente, volume XXXIV).

**II.-** Against the preceding pronouncement, appeals were filed by Dr. [Nombre01 033], in a personal capacity, as well as his defense attorneys, licensed attorneys Rafael Gairaud Salazar and Cristian M. Arguedas Arguedas; licensed attorney Hugo Santamaría Lamicq, as defense attorney for [Nombre 046]; licensed attorney Mario Gonzalo Soto Baltodano, as president with full powers of general agent without limit of sum of the company called [Nombre 050]; licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defense attorneys for [Nombre 006]; licensed attorney Mario Navarro Arias, as defense attorney for [Nombre02 028], as well as in his capacity as special judicial agent (apoderado especial judicial) for the civil defendants [Nombre01 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]., [Nombre02 058]., and [Nombre 028]; licensed attorney José Miguel Villalobos Umaña, as private defense attorney for [Nombre 018]; the accused [Nombre 001], [Nombre 028], [Nombre 041], and [Nombre 018], in a writing authenticated by licensed attorney José Miguel Villalobos Umaña; Mr. [Nombre 018], in a writing authenticated by licensed attorney Hugo Santamaría Lamicq; licensed attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial agents of the company [Nombre 059] (formerly [Nombre 060]); licensed attorneys Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Attorney General's Office (Procuraduría General de la República); licensed attorney Juan Luis Vargas Vargas, as special judicial agent for Mr. [Nombre02 077], who is the president with full powers of general agent without limit of sum of the company called [Nombre 061]; licensed attorney Yamura Valenciano Jiménez, as defense attorney for [Nombre01 001] and [Nombre 022]; licensed attorneys Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Public Prosecutor's Office (Ministerio Público); as well as licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, as defense attorneys for [Nombre01 041].

**III.-** By resolution No. 2014-1847, at 11:20 a.m. on November 21, 2014, the Third Chamber (Sala Tercera) of the Supreme Court of Justice resolved the following: **“THEREFORE (POR TANTO). The following are declared without merit:** 1) The first claim, of the first section; first and second, of the fourth section, all from the Appeal of the Public Prosecutor's Office (Ministerio Público); 2) The appeal for cassation (recurso de casación) filed, personally, by the accused [Nombre01 001]. **The grounds are accepted**: The second of the first section; the first of the second section; by majority, (Gómez Cortés, López Madrigal, Desanti Henderson, and Sanabria Rojas), the second ground of the second section. Magistrate Cortés Coto dissents; the first, second, and third of the third section; the second, third, fourth, fifth, sixth, seventh, and ninth of the seventh section; the first and second of the eighth section. **For lack of interest**, the fourth, fifth, sixth, seventh, and ninth claims of the sixth section are not heard. The sole admitted ground for cassation of the appeal filed by the Attorney General's Office (Procuraduría General de la República) is declared with merit. Consequently, judgment 2012-2550 is annulled, the Criminal Sentence Appeals Court (Tribunal de Apelación de Sentencia Penal), except regarding the provisions on the crimes of simulation fraud, against [Nombre01 001], and that pertaining to the acquittal of the accused [Nombre01 033], for four crimes of Illicit Enrichment, contemplated in point A) of the operative part of the contested judgment. A remand for new proceedings is ordered, so that the appeals against the criminal sentence judgment, filed by the accused, are resolved, with the exception of that which has become final here. The remand to the Trial Court (Tribunal de Juicio), on the civil matter raised by the Attorney General's Office (Procuraduría General de la República), shall be carried out taking into account all the facts of the Civil Action for Damages (Acción Civil Resarcitoria) writ, presented by that party…” (F. 176,528 frente and vuelto, volume XLIII).

**IV.-** Because the cassation body ordered a *partial* remand to the sentencing appeal stage, this court must rule again on the following appeals that were filed against the resolution of the Criminal Trial Court for Treasury and Public Function (Tribunal Penal de Hacienda y la Función Pública) of the Second Judicial Circuit of San José:

• A)Appeals raised by [Nombre01 033]. B) Appeals filed by licensed attorney Rafael Gairaud Salazar, private defense attorney for [Nombre 033]. C) Appeals filed by licensed attorney Yamura Valenciano Jiménez, in her capacity as defense attorney for [Nombre02 022] and [Nombre 001]. D) Appeals raised by licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defense attorneys for [Nombre 006]. E) Appeal raised personally by the accused [Nombre01 001], [Nombre01 028], [Nombre 041], and [Nombre 018]. F) Appeals filed by licensed attorney José Miguel Villalobos Umaña, defense attorney for [Nombre 018], and by the accused [Nombre 018] personally. G) Appeals filed by licensed attorney Mario Navarro Arias, defense attorney for [Nombre 028]. H) Appeals filed by licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, defense attorneys for [Nombre 041]. I) Appeals filed by licensed attorney Juan Luis Vargas Vargas, special judicial agent for [Nombre 077], who is the president with full powers of general agent without limit of sum of the company called [Nombre 061].

**V.-** Having verified the respective deliberation in accordance with the provisions of article 465 of the Criminal Procedure Code (Código de Procesal Penal), the court considered the issues raised in the appeals.

**VI.-** That the pertinent legal prescriptions have been observed in the proceedings.

Judge Patricia Vargas González writes; and, **CONSIDERING (CONSIDERANDO):** **I.-** As explained in this chamber's resolution No. 2015-695, at 11:00 a.m. on May 12, 2015, a remand (reinstatement of the appeal phase) having been ordered by the Third Chamber (Sala Tercera) of the Supreme Court of Justice, by resolution No. 1847-2014, at 11:20 a.m. on November 21, 2014, this panel of the Criminal Sentence Appeals Court (Tribunal de Apelación de Sentencia Penal) of the Second Judicial Circuit of San José is responsible for resolving the following challenges:

• A)Appeals raised by [Nombre 033], personally, with the exception of point d) of the third section of the criminal sentence appeal, titled *“Impediment to the exercise of my material defense”* (f. 172,524 to 172,526 frente, volume XXXIX). B) Appeals filed by licensed attorney Rafael Gairaud Salazar, private defense attorney for [Nombre 033]. C) Appeals filed by licensed attorney Yamura Valenciano Jiménez, in her capacity as defense attorney for [Nombre 022]. D) Those filed by licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defense attorneys for [Nombre 006]. E) Appeal raised personally by the accused [Nombre 001], [Nombre 028], [Nombre 041], and [Nombre 018], in a writing authenticated by licensed attorney José Miguel Villalobos Umaña. F) Appeals filed by licensed attorney José Miguel Villalobos Umaña, defense attorney for [Nombre 018], and by the accused [Nombre 018] personally, in a writing authenticated by licensed attorney Hugo Santamaría Lamicq, except for the last two claims filed in both challenges (specifically, the fourteenth and fifteenth grounds), as they are related to the matter of the civil action for damages (acción civil resarcitoria). G) From the appeal raised by licensed attorney Yamura Valenciano Jiménez, in her capacity as defense attorney for [Nombre01 001], the first, second, and sixth grounds will be heard, the latter solely regarding the penalty imposed on [Nombre01 001] for the crime of aggravated corruption in its modality of improper bribery. H) Appeals filed by licensed attorney Mario Navarro Arias (deceased), in his capacity as defense attorney for [Nombre01 028], and only with respect to the criminal aspects of the contested judgment. Excepted, therefore, are the last three grounds of the criminal sentence appeal that he filed in his capacity as special judicial agent for the civil defendants [Nombre01 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]., [Nombre 058]., and [Nombre01 028] in their personal capacity, in which he challenges what the trial court decided on the civil aspects of the case (see, f. 172,262 to 172,270, volume XVIII). I) Appeals filed by licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, as defense attorneys for [Nombre 041]. J) Appeals filed by licensed attorney Juan Luis Vargas Vargas, in his capacity as special judicial agent for Mr. [Nombre01 077], who is the president with full powers of general agent without limit of sum of the company called [Nombre 061].

**II.-** As explained in the aforementioned resolution No. 2015-0695, the Third Chamber (Sala Tercera) of the Supreme Court of Justice, in ordering the remand to this procedural phase, *expressly* excluded from the knowledge of this appeals court a series of topics, specifically, matters related to the civil aspects of the proceeding; the simulation frauds attributed to [Nombre01 001]; and matters pertaining to the acquittal of the accused [Nombre02 033] for four crimes of illicit enrichment. In addition to the foregoing, this appeals court proceeded to exclude other aspects that, having not been appealed for cassation, became final, that is, the definitive dismissal (sobreseimiento definitivo) issued in favor of [Nombre01 046] due to his death, and what was ordered regarding the confiscation of the vehicle with license plate No. []. Finally, the Third Chamber also made other decisions regarding a series of topics related to this case, which although they were not detailed in the operative part of its resolution must be complied with by this office, since the judgment is a legal-logical unit, and as such must be understood integrally. For example, in resolving the issue of the statute of limitations (prescripción), the Third Chamber expressly indicated: *“[…] the acquittal judgment for statute of limitations of the criminal action 2012-2550, issued in the proceedings by the Criminal Sentence Appeals Court, is annulled, ordering a remand for new proceedings as legally appropriate, **this Chamber clearly establishing that, in this case, the criminal action is not time-barred**.”* (F. 176,431, volume XLIII, the underlining is not from the original). Another example is found in what was agreed with respect to evidence No. 588. According to the cited Chamber, that evidence is lawful because the order or endorsement of a Costa Rican judge was unnecessary for its collection. For this reason, it annulled the second-instance judgment issued by this appeals court (with a different panel) insofar as it acquitted the accused, and ordered this office *“…**to conduct a new comprehensive examination of this evidence together with the remaining evidence of the case**.”* (F. 176,448 frente, emphasis is ours). As can be seen, the cassation body not only ruled on these topics, *but expressly conditioned the analysis that must be done with the second-instance remand*. Apart from those already mentioned, there are other aspects which the Chamber also resolved on the merits, with preclusive and declaratory force, finalizing the discussion that was generated around them. These are decisions that, it is reiterated, although they are not included in the operative part of the cassation judgment, cannot be ignored, as some of the parties requested during the oral hearing held at the end of September of this year, insofar as they have been issued for the specific case by the reviewing body that resolves in the last instance. This means that one is not faced with the dilemma of accepting or not the criteria expressed by the Third Chamber, but rather with the duty to respect the limits that that jurisdictional body established for the remand to the second instance, that is, the duty to comply with the decisions it made with a preclusive and declaratory nature, and which this appeals court cannot, therefore, circumvent or reverse. It should be noted that in an appeals system like ours, where there are two remedies and in which the Public Prosecutor's Office (Ministerio Público) can also appeal, it is not surprising that the Third Chamber, granting a cassation appeal filed by that party, either for contradictory precedents, or for nonobservance or erroneous application of a substantive or procedural precept, annuls the resolution issued by the criminal sentence appeals court and confirms that of the trial court (thus, e.g., judgments No. 2014-00416 at 10:18 a.m. on March 13, 2014; No. 2013-00992 at 9:52 a.m. on August 9, 2013; 2013-0956 at 2:36 p.m. on July 31, 2013; and 2013-01814 at 4:03 p.m. on December 3, 2013, among others). Likewise, as occurs in this matter, it may be that the Third Chamber, despite annulling the appeals court judgment and validating some of the arguments put forth by the trial court, considers it necessary to order a remand to this procedural stage (e.g., because there are pending claims to be resolved), which in no way authorizes this office to disregard the matters that have been resolved and defined. This is because the remand to the second instance does not constitute a new examination in the broadest sense of the term, but rather an examination that is necessarily linked to the judgment, in this case the cassation judgment, that annulled the previous resolution. Therefore, the remand must be carried out within the limits established by that cassation pronouncement. This being the case, and regardless of the opinion that this appeals court may hold regarding the aspects that the Chamber resolved and defined on the merits, it is concluded that regarding these, one is not in a position to disagree, or to issue a different pronouncement. Below, a recount will be made of those decisions that condition or limit the remand to the second instance ordered by the Cassation Chamber.

**III.- On what was resolved and defined (with declaratory effect) by the Third Chamber for the specific case**: In resolution No. 1847-2014 cited above, the Third Chamber ruled on several topics that need to be recapitulated, namely:

• 1)It concluded that the criminal action was not time-barred for any of the accused. 2) It considered evidence No. 588 to be lawful, in that *“… the order or endorsement of a Costa Rican Judge was unnecessary…”*. This chamber does not ignore that the aforementioned criterion is different from that assumed by the Third Chamber, with a different panel, in case file No. 04-005356-0042-PE, specifically, in resolution No. 499 at 11:45 a.m. on May 11, 2011. In that judgment, by a majority vote, the nullity of the evidence collected 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 (Name06.), as well as the evidentiary elements derived from it, was declared. However, the divergence that may exist between the aforementioned judgments is a situation that the cassation body must eventually resolve, and the task of this appeals court is to examine the claims formulated by the parties based on what the Chamber decided in the specific case, namely, that evidence No. 588 is lawful. Finally, it is important to add here that the document presented by [Nombre01 158] to this court on August 27, 2015 (see, 176,925 frente, volume XLIV), and in which, based on article 29 of the Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications, No. 7425 of August 9, 1994, he revoked the consent he had given for the bank information of the company [Nombre01 215] to be used, is of no importance, since the Third Chamber's decision, in finding the referenced evidence valid, did not rely on said consent, thus the decision made by the holder of the right is completely inconsequential. 3) The Third Chamber also declared evidence No. 543, 544, and 545 lawful, the same evidence that had previously been declared unlawful by this Criminal Sentence Appeals Court, with a different panel (f. 176,473 vuelto, volume XLIII). 4) It dismissed the existence of a defect of lack of correlation between accusation and judgment regarding the conviction imposed on [Nombre01 006], as well as the erroneous application of article 346, paragraph 3) of the Penal Code (Código Penal) (f. 176,499 vuelto). 5) It concluded that the criminality of the corruptor does not require proof of an effective agreement of wills between the active subject and the public official to be corrupted, the description of the functional act requested by the corruptor (f. 176,502 vuelto), or the verification of the acts supposedly carried out by the public officials one intends to corrupt (f. 176,508 and 176,512 frente). 6) It considered that the accusation formulated by the Public Prosecutor's Office (Ministerio Público) did describe what the functional act requested from [Nombre01 001] was (f.

176.502 vuelto to 176.503 vuelto).</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">7) It concluded that the verb </span><span style="font-family:Arial; font-style:italic">dar</span><span style="font-family:Arial"> (to give), as contemplated in the penalty type for the corruptor applicable to the particular case, can include the actions of </span><span style="font-family:Arial; font-style:italic">ofrecer</span><span style="font-family:Arial"> (offering) and </span><span style="font-family:Arial; font-style:italic">prometer</span><span style="font-family:Arial"> (promising) (f. 176.507 vuelto and 176.512 frente and vuelto); and, finally,</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">8) It indicated that Article 346, subsection 3) of the Penal Code contemplates a series of actions that do not contradict what is prescribed in Article 26 of Law No. 6872, on illicit enrichment of public servants of June 17, 1983, in force until the enactment of Law No. 8422, against corruption and illicit enrichment in public office of October 6, 2004, hence the existence of one did not imply the exclusion or repeal of the other (f. 176.513 vuelto to 176.515 vuelto). Having made the foregoing clarifications, we will proceed to resolve the appeals filed. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">IV.-</span><span style="font-family:Arial"> Given the existing relationship and for procedural economy (economía procesal), this chamber will address jointly and firstly, the second ground of the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Nombre01 041], and the second section point D.-, and the third section point A.-, of the appeal against the judgment (recurso de apelación de sentencia) filed by the accused [Nombre02 033], in a personal capacity. </span><span style="font-family:Arial; font-weight:bold">Appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Nombre01 041]. Second ground. Disregard and/or erroneous application of procedural law. The contested judgment is essentially based on unusable evidence (prueba ilícita). </span><span style="font-family:Arial">The court erroneously applied Articles 22, 23, and 24 of the Code of Criminal Procedure and, consequently, disregarded the provisions of numbers 96, 180, 181, and 182 of the Code of Criminal Procedure: “… </span><span style="font-family:Arial; font-style:italic">The reasoning of the ruling is erroneous in determining the factual framework because it relies, to support the core aspects of the declaration of criminal responsibility of [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, on information obtained through the breach of due process. The total annulment of the ruling is required (since the same unusable information served as the essential basis for the conviction of other accused) and a remand (reenvío) so that a court, composed of judges different from those who already intervened in this case, conducts a new trial (debate) in which due process is respected…</span><span style="font-family:Arial">” (F. 173.091 frente). As a grievance, they affirm that the ruling illegitimately declared the criminal responsibility of [Nombre01 041], as it relied on unusable evidence, specifically, a witness who testified at trial under the protection of a procedural advantage derived from a defective procedural act. According to them, had the actions (gestiones) filed by several parties during the trial been resolved in accordance with the law, the aforementioned testimonial evidence would not have been produced. According to the private defenders</span><span style="font-family:Arial; font-style:italic">“… in the case of the co-accused [Nombre01 064], the Public Prosecutor's Office (Ministerio Público) disrespected essential regulations when deciding and negotiating with him and his legal representative the suspension of the exercise of criminal prosecution (suspensión del ejercicio de la acción penal) -to which the Prosecutor's Office was bound as a consequence of the principle of mandatory prosecution (principio de obligatoriedad)- and, transmitting information in an omitted and incomplete manner, caused the jurisdiction to incur a procedural error (the jurisdiction also did not strictly follow the procedures imposed by law) so that it would order the admission of the prosecutorial discretion (criterio de oportunidad) requested. Because such is the purpose of the jurisdictionally authorized prosecutorial discretion in the case, [Nombre01 064] appeared before the Sentencing Court (Tribunal sentenciador) and, under the protection of an improperly promised procedural advantage, testified at trial and provided information that the sentencing body essentially used to declare the criminal responsibility of [Nombre01 041] and other convicted individuals in this case. The contested Judgment, then, is contrary to law precisely because it substantially uses the information provided by the “collaborating accused” to essentially uphold the imposed conviction</span><span style="font-family:Arial">…” (F. 173.092 and 173.093 frente). After citing several excerpts from the judgment, where reference is made to the testimony of [Nombre01 064], the defenders affirm that it constituted essential evidence, as the trial court itself recognizes in Considerando XI.-, point A). From this point on, the appellants present a series of arguments to explain why they consider the granting of a prosecutorial discretion in favor of [Nombre01 064] and the subsequent use of the information he provided to be contrary to law: “ </span><span style="font-family:Arial; font-style:italic">…Description of Procedural Actions: FIRST: On January 31, 2006, the individual who appeared as a collaborating co-accused during the trial, Mr. [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, his trusted defender 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 a prosecutorial discretion, pursuant to the provision of Article 22, subsection b) of the Code of Criminal Procedure (as evidenced by exhibit 776, legitimately incorporated in due course into the Trial). In the same sense, see what is recorded in the objected ruling at folio 1653. SECOND: In accordance with said agreement, the Public Prosecutor's Office agreed to request in favor of the collaborating accused [Nombre01 064] that his prosecution in case 04-006835-647-PE be completely waived (se prescinda totalmente de su persecución). The foregoing was conditional on the collaborating accused [Nombre01 064] rendering at trial -as indeed happened- a declaration similar to the one previously given before the Public Prosecutor's Office and that constitutes the ANNEX to the aforementioned prosecutorial discretion. Likewise, on said declaration not being discredited by other evidentiary elements that make it appear false. And the prosecutorial action (gestión fiscal) was also conditioned on the information provided by [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">allowing the trial to establish the participation -among others- of the accused in this same case [Nombre01 041], [Nombre01 078], [Nombre02 033], and [Nombre01 046]. 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 brief (memorial) dated May 30, 2007, before the Criminal Court of the Intermediate Stage (Juzgado Penal de la Etapa Intermedia) of the Second Judicial Circuit of San José, requesting the application of a prosecutorial discretion for collaboration. In said brief (which we understand is also part of exhibit 776) the Prosecutor's Office includes in the section called Relation of Facts, 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 referred brief the Prosecutor's Office states: “As a result of that 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. FOURTH: Similarly, the physical file (Legajo) for the Application of Prosecutorial Discretion 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 prosecutorial discretion pursuant to subsection b) of Article 22 of the Code of Criminal Procedure in favor of the accused [Nombre01 064]. In said document, the Deputy Prosecutor makes a synthetic reference to the facts under investigation in said case (specifically at folios 2 and 3 -folios 33 and 34 of the Legajo- and at folio 8 -39 of the Legajo). FIFTH: The referred actions (gestiones) resulted in 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 identifying data of the case and, then, establishes in a Considerando I, called Relation of Facts, exactly the same thing that 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 (gestión) promoted by Prosecutors Marcela Morera Molina and Amelia Robinson Molina has the approval (visto bueno) of the Deputy Prosecutor. Subsequently, a Considerando III called On the Merits (Sobre el Fondo) is included, in which the Judge points out the nature of the prosecutorial discretion requested and examines the legal requirements for its admissibility. Since the resolution is almost completely lacking due reasoning (fundamentación), it suffices to point out that it refers, as appreciated and valued facts or conducts for determining greater reprehensibility, to the conduct of [Nombre01 064] and the conduct of [Nombre01 033]. Additionally, the jurisdictional decision refers to the facts investigated in this case in relation to [Nombre01 041], [Nombre01 078], [Nombre01 046], and [Nombre01 033], which are clearly linked to the contracting of the 400,000 cellular telephone lines that was extensively discussed in the oral and public trial that preceded the issuance of the Judgment now being contested</span><span style="font-family:Arial">…” (F. 173.096 to 173.099 frente). For the appellants, the Prosecutor's Office must provide the jurisdictional authority with complete information so that it, in turn, can control the legality of the granted prosecutorial discretion, especially to assess whether the reproach that can be made to the collaborator is of lesser significance. Now, the factual framework provided by the prosecutorial representation to Attorney Ana Gabriela Sánchez Arroyo, in the brief dated May 30, 2007, through which it requested the application of the prosecutorial discretion for collaboration in favor of the accused [Nombre01 064], did not fully correspond to what was being investigated at that time, since by then, there was evidence linking [Nombre01 064] with other questionable acts: “… </span><span style="font-family:Arial; font-style:italic">Indeed, by that moment of the investigation, several declarations given by the co-accused [Nombre02 064], as well as several expert reports from the Economic and Financial Crimes Section of the Judicial Investigation Agency (Organismo de Investigación Judicial), had already been added to the respective file; among others, Report 297-DEF-540-04/05 in which, at the point identified as 4.8 point 12., the following is established: “Finally, check No. 49-1 for U.S. $46,000.00 was mentioned, issued by Holding de Valores y Capitales, S.A., on May 26, 2003, to the name of Mrs. [Nombre02 080]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which he claimed to have received from [Nombre 046], supposedly, for collection efforts he had made with [Nombre02 091], at the request of both the latter and [Nombre01 033]. On this point, it is worth noting that in other of his statements, [Nombre01 064] had briefly referred to other sums of money received from [Nombre01 046]: a check for U.S. $4,000.00 and a certificate for U.S. $9,062.50. He also mentioned other royalties for U.S. $110,207.00 and U.S. $29,833.95, received from [Nombre01 083]., and [Nombre 085]., through [Nombre 068].” Likewise, the aforementioned report states in point 5.11 that, although [Nombre01 064] 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 [Nombre 058]., to [Nombre01 064] was also related to other contracts signed by ICE, for the purchase of fixed-line switches [Nombre 091]. It is important to highlight -following this same line of exposition- that [Nombre01 064] 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, [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">confesses before the Prosecutor's Office to having received money or improper payments related to the company [Nombre 090]. In November 2004 he also testified about the receipt of certain improper monies. Additionally, in May 2005 he stated having received money from Holding y Valores corresponding to payments for improper acts linked to the exercise of his position as a public official. It is clear, then, that by the date on which the Prosecutor's Office filed the request before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José for the application in favor of [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of the prosecutorial discretion for collaboration, the representation of the Public Prosecutor's Office had sufficient information allowing it to fully know about the possible participation of the collaborating accused [Nombre01 064] in other criminal acts different from those linked to the contract for the 400,000 cellular lines. However, this information, referring to acts different from those directly linked to the contract for the 400,000 lines, was concealed 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 prosecutorial discretion negotiated with [Nombre01 064], as well as in the very relation of facts contained in the resolution issued on June 1, 2007, approving the aforementioned institute. We consider it legitimate to affirm that the other mentioned acts in which [Nombre01 064] participates, distinct from those related to the mentioned ICE contract, were not reported to the jurisdictional authority as mandated. But it was precisely the information that became known during the Trial about the agreement for the application of the prosecutorial discretion which, together with the statements of Attorney Maribel Bustillo Piedra, who in her capacity as Prosecutor of the Various Crimes Unit of the Public Prosecutor's Office expressed in writing in the brief dated July 25, 2008, which, together with the resolution of 1:40 p.m. on May 18, 2009, appear added to the case file (expediente) 08-000032615-PE (photocopies of which are attached to this Cassation Appeal and we now request be brought ad effectum videndi and as evidence for the decision on this cassation ground), which, alongside the statements that Attorney Criss González spontaneously made to the public opinion and that at some point were reported in this Trial for being related to what was negotiated in the prosecutorial discretion agreed with [Nombre01 064], allow us to conclude without a doubt and without it being subject to debate, that what was opportunely negotiated by the Prosecutor's Office with the defendant [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">covers the prosecution (ejercicio de la acción penal) regarding the other investigated criminal acts that are distinct from those related to the contracting of the 400,000 cellular telephone lines ...</span><span style="font-family:Arial">” (F. 173.101 to 173.104 frente, the transcription is literal). The appellants cite what Attorney Bustillo Piedra indicated in the referred brief, namely: </span><span style="font-family:Arial; font-style:italic">“In the mentioned agreement, it can be observed that the Public Prosecutor's Office, in the exercise of its conferred powers, agrees to request in favor of [Nombre01 064] the waiver of criminal prosecution (se prescinda de la persecución penal), not only for the fact related to the money improperly received from the company [Nombre 091] on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand mobile lines of GSM technology, but for the entirety of the criminal prosecution for case No. 04-006835-647-PE, which covers this and the other facts that the complainant mentions, since all form part of the investigation with the single indicated number, so much so, that the accused was questioned for all those facts and long before the application of this agreement, on September 30, 2004.</span><span style="font-family:Arial">” (F. 173.104 and 173.105 frente). The appellants add that from the brief dated July 25, 2008, the photocopy of which they attach and which is recorded in the file that has been offered </span><span style="font-family:Arial; font-style:italic">ad effectum videndi</span><span style="font-family:Arial">, what is indicated in this ground is extracted. The agreement between the Public Prosecutor's Office and [Nombre01 064] was to waive the prosecution (ejercicio de la acción penal) in relation to all the facts known and investigated by the Prosecutor's Office at the time that negotiation took place, that is, on January 31, 2006. However, when jurisdictional authorization was requested for the application of the prosecutorial discretion, information about the facts under investigation in case file number 04-6835-647-PE was omitted. Attorneys Ramos and Morales say they intend to demonstrate to this chamber: that those facts were more than those described in the relation originally provided by the prosecutorial representation when filing the request for the application of the prosecutorial discretion; and that said omission is contrary to the Political Constitution and the Code of Criminal Procedure, because the Prosecutor's Office was obligated to provide the judicial body with all the information to decide. The fact that the information was incomplete constitutes a defect that in turn allowed the approval of the prosecutorial discretion that favored [Nombre01 064]. The private defenders add that these same procedural actions of the Public Prosecutor's Office, together with the resolution of 9:51 a.m., on June 1, 2007 (namely, the one that agrees to the application of the prosecutorial discretion in favor of [Nombre01 064] and orders the suspension of the exercise of public criminal prosecution), could not constitute the presupposition that validated the jurisdictional decision contained in the resolution of 1:30 p.m. on September 2, 2010, issued interlocutorily during the trial and that legitimized, by a majority decision, the declaration given by [Nombre01 064] at trial, a declaration that is contrary to what is stated in Article 96 of the Code of Criminal Procedure, since, they reiterate, the advantage offered to [Nombre01 064] as a consequence of the jurisdictional approval for the application of the prosecutorial discretion did not conform to legal requirements. After making an extensive transcription of what the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> said on the subject (vid. folios 173.107 to 173.113 frente, volume XL), the appellants conclude that the court considered it unnecessary to determine whether the public criminal prosecution that should have been exercised in relation to all the criminal acts committed and attributable to [Nombre01 064] was illegitimately abandoned by the Prosecutor's Office, due to the effects of the prosecutorial discretion improperly granted. This despite the impact that circumstance had on establishing the legitimacy of [Nombre01 064]'s declaration as a source of information, which was later used to convict [Nombre01 041]. The court, therefore, turned a blind eye to the reality shown to it, and allowed the consolidation of a series of undesirable effects of the defective procedural act. In a different sense, which the appellants share, Judge Camacho Morales expressed himself. After transcribing what this professional indicated, the appellants set forth what, from their perspective, are the main conclusions of the minority vote (voto de minoría): “</span><span style="font-family:Arial; font-style:italic">1. Incomplete request filed by the Prosecutor's Office for the Judge to approve the application of the prosecutorial discretion in the specific case and under the terms indicated by Article 22, subsection b) of the Code of Criminal Procedure; 2. Jurisdictional resolution lacking due reasoning that approves the application of the prosecutorial discretion and justifies [Nombre01 064]'s testimony at trial; 3. Testimony given at trial by the co-accused [Nombre01 064] improperly protected by the promise of a procedurally impossible procedural advantage to uphold. 4. Use of information coming exclusively from illegal evidence (prueba ilícita) to essentially support the factual framework used to convict -among others- [Nombre01 041]...</span><span style="font-family:Arial">” (F. 173.131 and 173.132 frente). For the defense, following the foregoing, the following is required: to grant the present appeal (recurso); to declare that the request for the application of the prosecutorial discretion contained in the brief on folio 1 and following of the respective legajo (exhibit No. 776) constitutes a defective procedural act; to declare illegitimate, as it is essentially based on defectively verified procedural acts, the resolution of 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, signed by Attorney Ana Gabriela Sánchez Arroyo; to determine the effects (dimensionar los efectos) of such declarations and also conclude that the trial court's resolution of 1:30 p.m. on September 2, 2010, is illegitimate, insofar as it authorized the production of [Nombre01 064]'s testimony at trial. Likewise, it must be declared that the judgment should not have relied on the declaration given during the adversarial proceedings (contradictorio) by [Nombre02 064] and that its annulment is appropriate. They request that the ground be accepted and the ruling annulled, ordering remand (reenvío) to the trial stage for a new proceeding (sustanciación) in accordance with the law. Finally, it is important to note that of the evidence offered by the appellants to prove the defect they reproach, case file (expediente) 08-000032-615-PE, followed against Nombre08, where they were accused of the alleged commission of the crime of breach of duties (incumplimiento de deberes), was admitted at this procedural stage, as well as the photocopies thereof that were provided. </span><span style="font-family:Arial; font-weight:bold">Appeal against the judgment (recurso de apelación de sentencia) filed by [Nombre02 033]. Second Section. Disagreement with the incorporation and assessment of the evidence. Gross errors in the incorporation and assessment of the evidence by the majority vote (voto de mayoría) due to lack of precise and circumstantiated determination of facts accredited by the court. The majority vote suffers from lack of reasoning, contradictory reasoning, and disregard of the rules of sound criticism (sana crítica racional) with respect to evidentiary means and elements of decisive value</span><span style="font-family:Arial">. As a basis for the complaint, Articles 142, 184, 361, subsection b), 363, subsection c), 458, and 459 of the Code of Criminal Procedure are cited. </span><span style="font-family:Arial; font-weight:bold">D. Assessment of the declaration as a suspect of the confessing party [Nombre02 064]. </span><span style="font-family:Arial">The majority vote recognized that the declaration of [Nombre01 064] is not evidence, however, it accepted his word without any evidence or indication (indicio) supporting it on substantial points to be able to link [Nombre01 033] to the illicit act. For this reason, the reasoning of the ruling 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 declaration of a confessing accused, whose veracity is not corroborated by any other evidence. He requests the ruling be annulled and his acquittal (absolutoria) be declared. The trial court recognizes that, given the accused's declaration, it is necessary to examine it in light of other evidentiary means. This is the line expressed by the Constitutional Chamber (Sala Constitucional) in resolution No. 12090-09. Now, what happens is that, when assessing the word of [Nombre01 064], the judges forget the foregoing. While it is true that it is not a matter of having verification of every aspect of the account, a set of converging indications (indicios convergentes) about the core of the confessing accused's declaration is indeed required. To give credibility to [Nombre01 064], the court affirms that: </span><span style="font-family:Arial; font-style:italic">a)</span><span style="font-family:Arial"> the subsequent payments confirm the instigation. For the appellant, even admitting their existence, we have that those payments could have been for other concepts (loans, donations without consideration, illicit enrichment, payments for consummated acts, for previous debts, etc.). That is, their existence proves nothing about the crime. </span><span style="font-family:Arial; font-style:italic">b)</span><span style="font-family:Arial"> There was a criminal plan by [Nombre01 091] whose existence is supported by the word of [Nombre01 064]. The appellant considers that this says nothing about his participation as an instigator. [Nombre01 064] admitted having accepted the offer from [Nombre01 091] before meeting with [Nombre01 033] (a meeting whose existence [Nombre01 033] also casts doubt on). Things being so, what [Nombre01 064] may have reflected upon upon arriving home is something personal, it being the case that what [Nombre01 064] stated was that he might need help to fulfill the plan, not that he needed convincing. Both [Nombre01 064] and the witnesses were in agreement (contestes) in saying that [Nombre01 033] never requested anything from a director or official of ICE regarding the bidding for the 400,000 GSM lines, or in relation to any purchase or contract. Finally, despite [Nombre01 064] having said he sought out the appellant in case he eventually needed his help, he never stated having asked him for it, or at least having informed him of the conditions he supposedly would have been asked to meet. On the other hand, it is absurd to understand that the meeting between [Nombre01 033] and [Nombre01 064] happened just because all the supposed participants were in Costa Rica (according to the entry and exit records of the country for [Nombre01 064], [Nombre01 041], [Nombre01 078], and [Nombre02 033]). Even his defender showed that [Nombre02 078] did not leave the country on a Saturday either at the end of 2000 or at the beginning of 2001, as [Nombre02 064] indicated. Furthermore, the court distorted what was said by the appellant's defense. It was never affirmed that [Nombre01 033] was not in the national territory. What Attorney Gairaud said was that it was likely that the meeting had been said to have occurred at the end of November or beginning of December because those were dates when his client was in Costa Rica. The appeal affirms that the judges incur in "blind credibility" towards [Nombre01 064], despite all the inconsistencies he incurs: "... </span><span style="font-family:Arial; font-style:italic">it is even more unjustified when the lady judges were eyewitnesses to [Nombre01 064]'s statements regarding the unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Nombre01 064] and corroborated by the OIJ… The bank accounts in colones and other possible accounts of [Nombre01 064] in his name or his wife's name were not investigated because the Public Prosecutor's Office did not request it,… Nor were the other possible crimes of [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">investigated, although the Public Prosecutor's Office was informed of them, because the prosecutors did not request that they be investigated… The lady judges had knowledge of all of this but this did not affect their total credibility, impervious to any contradiction or error in [Nombre01 064]'s word</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. It could be argued to me that these were unjudged facts and therefore could not be used by the court as it would violate the principle of innocence. But why then against me is it argued that I did not prove a different nature for the supposed payments by [Nombre01 064] attributed to the defendants? Does the principle of innocence not apply against me, but only for the confessing accused [Nombre01 064]?</span><span style="font-family:Arial">” (F. 172.437 and 172.438 frente).</span> Judge Camacho Morales, in his dissenting opinion, considers that a prior promise on the part of the presumed corruptors was not demonstrated and also explains how the dates on which this promise was supposedly made are not compatible with the tasks allegedly entrusted to [Nombre01 064]. After citing several excerpts from the judgment (both from the dissenting opinion and the majority opinion), the appellant states that the trial court accepted the lies of [Nombre01 064] despite the fact that, to do so, it must have violated the rules of sound criticism. In relation to the prosecutorial discretion (criterio de oportunidad) granted to [Nombre01 064], the appellant challenges that the female judges refused to rule on the legality and judicial approval of that prosecutorial discretion. Likewise, although the judgment argued that [Nombre01 064] wanted to cooperate from his first statement in September 2004, it did not take into account that in that narration, he described facts that were completely contrary to those he accepted in May 2005, when he reached an agreement to apply an abbreviated procedure, facts that are practically identical to those included for the prosecutorial discretion agreement. It was also not taken into account that the way in which [Nombre01 064] is treated in that first statement is different from the way the other defendants were treated. This makes it appear that, from the very first moment, [Nombre01 064] had an arrangement with the Public Ministry. The majority opinion states that although [Nombre01 064] went unpunished for his actions, this was not the result of his decision, but of the legislative approval of the mechanism and the approval granted in this regard by *other* judges. [Nombre01 033] criticizes the previous assertion, believing that the trial court had the duty to rule on the approval of the prosecutorial discretion and refused to do so. The female judges naively believe that [Nombre01 064] collaborated motivated by supposed patriotic reasons, to defend morality in public office, and they assert that if he went unpunished it is because of the complaint filed against him by attorneys Fernando Apuy and Freddy Coto, which did not allow proceeding with an abbreviated trial that implied prison time for [Nombre01 064]. But this is not so. It is recorded in the case file that the negotiated sentence of 4 years had already been served with the house arrest imposed on [Nombre01 064]. Moreover, it can be seen that Apuy and Coto never opposed the abbreviated trial; rather, it was the intransigence of [Nombre01 064]'s defense attorney that prevented reaching an agreement between the parties (Evidence No. 309). The appellant adds that the Public Ministry, instead of partially waiving criminal prosecution, merely refraining from accusing [Nombre01 064] for the facts related to the four hundred thousand lines, completely waived criminal prosecution, including other crimes confessed by him. The majority opinion said nothing about the Public Ministry's refusal to investigate those other crimes, which were confirmed through the accounting reports of the O.Nombre09. Nor was anything said regarding the circumstances under which those events occurred, or the millions in sums that, after the prosecutorial discretion, remained in the possession of [Nombre02 064]. The tendency to favor this person in everything has been clear. He reiterates that the trial court did not rigorously assess this statement. It took it as the only truth, ignoring lies and contradictions. He asserts that the lower court (a quo) convicted him in advance and showed animosity towards him, when it alluded to a duty of loyalty that prevails in criminal organizations; when it prevented him from questioning an expert witness; and when, without basis, it said that [Nombre01 064] was a trusted person of the appellant. He insists that the tendency to favor [Nombre01 064] was clear, for example, when it was stated that he did not accept further government appointments, or when the court refused to hear statements about his other crimes. The trial court also confused ICE’s relations with the Presidency of the Republic. The purchase or rental of equipment is an ICE task, a detail that leaves pages and pages of argumentation in the majority opinion without support. The reference to breakfasts, lunches, and dinners given by [Nombre01 091] to public officials, as hundreds of companies do daily, at most shows that [Nombre01 064] received money from [Nombre01 091], but that says nothing about how [Nombre01 064] made a pact with [Nombre01 091], nor about the meetings at [Nombre01 094] or at the appellant's home. On page 1,679 of the judgment, it is held that, according to [Nombre01 064], for the receipt of the bribe, all the Nombre10 of ICE's board of directors had to be involved, and that, for him, this was difficult to achieve. However, this is contradictory to what [Nombre01 064] himself said, and which the female judges include on page 1,675 of the ruling, to the effect that what [Nombre01 091] requested was that the tender be issued, that it was not necessary for [Nombre01 064] to speak with anyone, it being sufficient that the tender was not aborted. It is also contradictory to what the cooperating defendant said about the meeting at the appellant's house, since during that meeting he did not even mention the three tasks entrusted to him by [Nombre01 091], nor did he request any help from [Nombre01 033]. On the other hand, the appellant states that, contrary to what was said in the judgment, it was demonstrated that officials from various ICE technical and administrative instances and its seven directors participated in the process to migrate to GSM. Nombre02 things, the migration cannot be attributed to the actions of two directors colluding with [Nombre01 091], especially if that decision was already clear from May and June 2000 and was announced on October 6 by the executive presidency, months before the alleged meetings of [Nombre01 091] with those two directors took place. Now, on pages 1,162 and 1,163 of the trial judgment, the court attempts to explain this, stating that once the announcement was made by [Nombre01 095], it makes sense that in the memorandum sent by [Nombre01 098] to [Nombre 041] on November 10, 2000, he indicates that although that announcement is positive, it was necessary to maintain pressure and not allow the interests of Ericsson and Lucent to continue being favored, since it seemed that ICE intended a new purchase of 200 thousand lines to expand the current ones, with TDMA technology. According to the judgment, this explains why the corruptors did not consider the announced technology migration for December 2001 a done deal. Faced with this, the appellant questions how a basic precautionary recommendation not to neglect things and to maintain pressure allows the conclusion that the promise took place, ignoring the fact that the direct purchase of TDMA had been suspended and the technology migration to GSM had been declared because it was more advantageous. The court says that TDMA technology was still being contracted as of December 2000, so the defense is incorrect in saying that the migration had already occurred as of October of that year. Against this assertion, the appellant replies that no analysis was made of how contracting went from 100% TDMA technology to only 33% and GSM technology was introduced, it also being convenient to satisfy the accumulated demand. Another sign of the *“subconscious in the strange reasoning of the majority opinion”*, the appellant indicates, can be seen on pages 1,686 and following, where it is stated that the payments from [Nombre01 091] to [Nombre01 064] and the transfers from [Nombre01 064] to [Nombre01 033] are proof both of the meetings and of the agreement to commit a crime that arose from those encounters. Such a conclusion is absurd, the appeal indicates, as it does not derive from the premises: *“… to claim that these movements of resources confirm the meetings at [Nombre01 094] and at my house is logically the same as pretending that if [Nombre02 064] steals from ICE, and then [Nombre01 091] gives a gift to [Nombre01 064] and [Nombre01 064] transfers some resources to me, that would mean that [Nombre01 064] met with [Nombre01 091] who offered him money for stealing from ICE, and then with me who instigated him to do it. Once again I must exclaim: Good Heavens!”* (F. 172,448 front). Nombre11 in this line of thought, he points out that between February and March 2001, when the tendering process for the 400 thousand GSM cellular lines was already underway, due to the Comptroller General's Office's non-acceptance of the direct purchase of the 600 thousand cellular lines that ICE had agreed upon the previous December, efforts were made to expedite a direct purchase of 160 thousand GSM lines, in order to meet demand. According to the majority opinion, that direct contracting represented for [Nombre01 091] a blank check issued by ICE, because it finalized the migration and saved him from participating in a public tender. From this, the court concludes that [Nombre01 064]'s action was not contrary to the commitments made, as the defense argued. In response, [Nombre01 033] questions why, two months earlier, when according to [Nombre01 064], he made a pact with [Nombre01 091], the agreement did not contemplate a direct purchase but rather a tender. The majority opinion also said that it was because [Nombre01 068] did not cast his vote in favor of the direct purchase of the 160 thousand GSM lines that the agreement between [Nombre01 068] and [Nombre01 091] occurred. Nombre02 things, the appellant asks, given that [Nombre01 064] did not attend the first meeting in which that direct purchase was approved, would that not be why [Nombre01 091] made him the offer? At this point, the appellant insists on a *“powerful subconscious predisposition”* of the court, aimed at drawing conclusions contrary to logic and common sense. As a final example of the above, he cites page 1,703 of the ruling, where despite acknowledging that the bribe received by [Nombre01 064] is related to contracts signed by ICE for the purchase of fixed-line switches, the court understands that the payments for fixed-line switches are for the migration to GSM. He ends his exposition repeating that the majority ruling relied on the statement of [Nombre01 064], a person who availed himself of the impunity provided by the prosecutorial discretion and of an activity full of irregularities on the part of the Public Ministry, an entity that did not investigate other crimes on his part. He stresses that [Nombre01 064] accepted the proposal from the very beginning, just as he had been doing in other cases that they refused to investigate, and that he never needed to be determined by another person. He adds: "*There is no way to be able to classify the acts of which [Nombre01 064] accuses me and the facts described in the accusation as instigation to aggravated corruption by reason of improper bribery (cohecho impropio), which makes my conduct atypical and constitutes a violation of the substantive law of the penal code, which demands a dismissal or acquittal in my favor...*" (F. 172,450 and 172,451 front).

**Section Three. Disagreement with the legal basis. A. Prosecutorial discretion (Criterio de oportunidad).** The majority opinion is based on illegal evidence, specifically on the statement given by [Nombre01 064] as an alleged confessed cooperating defendant, protected by a prosecutorial discretion that was illegally requested and approved, and on de facto actions of the Public Ministry which, without judicial approval, illegitimately granted him impunity for other crimes acknowledged by him. Regarding the grievance, he explains that a mechanism applied in an irregular manner was accepted, with a very serious violation of the legal system and without which the case is unsustainable. He requests that the statement given by [Nombre01 064] in the trial be annulled and consequently, given that the judgment lacks support, that the conviction be annulled and he be acquitted of the crime charged. After pointing out that several norms were violated when granting the prosecutorial discretion, he indicates that the only thing that exists against him is the statement of [Nombre01 064], which is not proof. Furthermore, in the video it can be seen that it is [Nombre01 064]'s defense attorney who dictates the answers he must give in the trial. The female judges, in a vote prior to the judgment (at 1:30 p.m. on September 2, 2010), had already declared themselves incompetent to resolve the challenge for defective procedural activity that the defense raised against the processing of the prosecutorial discretion. In contrast, Judge Camacho Morales, in the minority, said that the issue was indeed reviewable, concluding that in this matter the prosecutorial discretion was granted in an irregular manner (cf. the judgment, minority opinion, pages 1,981 to 1,987). With an extensive transcription of what was said in that dissenting opinion, the appellant emphasizes that the decision granting it lacked proper reasoning; that the issue of the lesser blame that can be placed on the collaborator benefiting from the prosecutorial discretion compared to the defendant who is harmed by its application was not properly assessed; that the crimes not investigated, which were confessed by [Nombre01 064] and corroborated by the Nombre12, had to be assessed. (crimes that, furthermore, were vainly requested to be investigated by the prosecutors and which were concealed from the judge who approved the prosecutorial discretion). He states that it was during the trial that they had access for the first time to what was negotiated regarding the prosecutorial discretion, determining that it only included the facts related to the 400 thousand GSM lines, which is contradictory to what prosecutor Maribel Bustillo said, when requesting that the complaint filed against Nombre08'anese for breach of duties and personal favoritism be "waived," for not investigating other payments made to [Nombre01 064]. On that occasion, the prosecutor acknowledged that the prosecutorial discretion covered criminal acts other than the contracting for the 400 thousand lines. Now, in her arguments on the subject, prosecutor Greysa Barrientos said that to compare the blame of the cooperating defendant and the other accused, only the case regarding the 400 thousand GSM lines should be taken into account, a thesis accepted by the majority opinion. Prosecutor Criss González made statements to the press, indicating that the prosecutorial discretion did not cover other acts committed by [Nombre01 064], which is a simple reading of the document in which the prosecutor's office requested judicial authorization to apply the mechanism, the resolution of the female judge who approved it, and the agreement signed with [Nombre01 064]. Judge Camacho Morales also pointed out the impropriety of the monetary arrangements made by the Public Ethics Prosecutor's Office, as [Nombre01 064] was legitimized to keep million-dollar sums in US dollars. Judge Camacho's calculation also fell short, because it did not take into account other income confessed by [Nombre01 064] but which the Public Ministry refused to investigate, so it is the State itself that has allowed him to keep more than one and a half million dollars. He requests that the judgment be declared null and void and that a dismissal, or his acquittal, be ordered.

**V.- The claims are granted**: In order for this exposition to be as clear as possible, this Chamber will divide the analysis into several sections, namely: 1) Competence of the trial court to verify compliance with the legal requirements contemplated for applying a prosecutorial discretion (criterio de oportunidad). 2) Examination of the prosecutorial discretion granted to [Nombre01 064]. Defects present in its processing and in the resolution that authorized it. 3) Hypothetical inclusion of the conducts omitted by the requesting body when applying for the prosecutorial discretion, and a new assessment of the blame that can be formulated regarding the conducts imputed to [Nombre01 064], in comparison with those of other defendants. Weighting of the arguments put forward by the trial court regarding this specific topic. 4) Credibility that can be granted to the cooperating defendant's statement.

**1) Competence of the trial court to verify compliance with the legal requirements contemplated for applying a prosecutorial discretion (criterio de oportunidad).** By majority and through a decision issued at 1:30 p.m. on September 2, 2010 (cf. folios 13,676 to 13,736 verso of volume XXVIII), the trial court refused to hear the objections raised against the applied prosecutorial discretion, regarding its “appropriateness or inappropriateness” and the possible “correctness or errors” of the authorizing decision issued by the female criminal judge. This is a decision—that of the trial court—which, being extremely lengthy, it is not advisable to transcribe, however, it can be summarized as follows: ***i)*** The judge of the preparatory or intermediate procedure is the only one competent to exercise jurisdictional control over the application of the prosecutorial discretion [in particular, the one contemplated in subsection b) of numeral 22 of the Code of Criminal Procedure] and its decriminalizing effects. The request for its application must be made before the court of the preparatory or intermediate stage. Furthermore, due to its complexity, once its application is authorized, the decriminalizing consequence is subject to the fulfillment of a condition precedent, with the criminal judge subsequently responsible for evaluating the effectiveness of the collaboration and the final resolution of the matter. In the trial phase, the court must ensure the legality of the reception of the collaborator's account and its assessment according to the rules of sound criticism. ***ii)*** The trial court does not have competence to issue a pronouncement on the implementation of the prosecutorial discretion, since it only hears the matter once trial has been declared open. The lower court (a quo) assures that this is how the Third Chamber has considered it, because: *“…not even in cases where a prosecutorial discretion has not been processed in favor of a person who appears to give a statement at trial, has said cassation body considered it appropriate for the trial court to evaluate the requirements for its appropriateness, nor to issue such a pronouncement in substitution of the criminal judge, abstracting, even from the competence of the trial judge, any assessment regarding the collaboration agreement (see decisions No. 392-1999 and No. 795-2009 of the Third Chamber). Conversely, in such cases the aforementioned cassation body has determined that, due to the criminal judge not having exercised control, it is not possible to receive the deponent at trial (e.g., opinions No. 795-2009 and No. 1061-2008 of the Third Chamber), making it totally clear that the criminal judge is the only one competent to carry out the referenced task.”* (F. 13,681 front). Consequently, one cannot seek for the trial court to define the fate of a prosecutorial discretion that has already been decided and upon which the admission of [Nombre01 064]'s statement at trial was based. ***iii)*** If the trial court were to decide to examine the decision that accepted the prosecutorial discretion to evaluate its decriminalizing effects, it would be assuming jurisdiction over a matter pending before another jurisdictional body, which is prohibited by Articles 11 and 155 of the Political Constitution and 4 of the Organic Law of the Judiciary, according to which judges must fulfill the duties imposed by law and not arrogate faculties that have not been granted to them. Likewise, such a proceeding would affect various principles and guarantees (legality, natural judge, judicial independence, impartiality, and due process). The court cannot hear objections aimed at invalidating a prosecutorial discretion already granted without the legislator authorizing it to do so—to approve or reject prosecutorial requests to apply the discretion, to control the action of the jurisdictional body in charge of that task, or to hear through an appeal the objections of the parties against that decision of the criminal judge. The legislator also did not provide for vertical control in the case of this type of decision, a situation that the Constitutional Chamber justified in decision No. 12090-2009. It is the statement given by the benefited person, and not the decision approving the prosecutorial discretion, that must be analyzed by the trial court and challenged by the parties. ***iv)*** Unlike what happens with other decisions (e.g., the order opening trial, the denial of a request for dismissal, or the rejection of a “motion to nullify”) that are processed within the same proceeding, concerning the prosecutorial discretion, an autonomous and separate procedure is established in which the appropriateness or inappropriateness of its application is discussed (opinions No. 1119-2005 of the Constitutional Chamber and No. 114-2006 and 404-2006, both of the Third Chamber). While the first cited decisions cannot be appealed because their discussion is feasible in later stages of the proceeding (what is known as horizontal control), in the case of the prosecutorial discretion, the dismissal (sobreseimiento) that is eventually issued in favor of the collaborator can indeed be appealed. Therefore, it is incorrect to assert that the absence of an appeal against the decision authorizing the prosecutorial discretion opens the door to a kind of horizontal control at trial, since the trial court is not competent to resolve that issue, given that vertical control is provided for in relation to the dismissal that may eventually be issued. ***v)*** Neither the trial court nor the cassation body can control the legality of the decriminalizing effects of the prosecutorial discretion, as this concerns the criminal judge. The taking of evidence and its assessment is a different matter, which is indeed the competence of the trial court and its controller. The court that authorized the prosecutorial discretion is only subject to the legal system, and its decision cannot be conditioned on a subsequent assessment by the trial court when the legislator has not provided for it in that manner; ***vi)*** The impartiality of the trial court may be affected if it assesses the requirements for the appropriateness of the prosecutorial discretion. The accusation is what describes the charged acts and is the basis upon which the trial must be conducted. The trial is conducted in relation to specifically accused persons, not others with different status (Art. 361, 363, and 365 of the C.P.P.). For this reason, the collaborator does not appear as a defendant in the case, but as a source of evidence. His statement must be assessed individually and in conjunction with the other evidence, but not to decide on his criminal liability, nor to contrast that liability with that attributed to the other defendants. This is an additional reason for the legislator to have decided to remove from the trial court's competence the assessment of the decriminalizing effects of the mechanism, insofar as it cannot hear about a mechanism already ordered by another jurisdictional body, applied to someone who is not accused in the proceeding under examination. ***vii)*** With convoluted wording, the trial court argues that the prosecutorial discretion is not technically a means of proof. Its nature is not evidentiary, but decriminalizing. When the collaboration commitment consists of testifying during the trial, it will only be at that time that the statement assumes the character of an evidentiary element. The way or channel through which said manifestations are received by the trial court is the means of proof, which for technical reasons can never be the specific procedure followed for the approval of the prosecutorial discretion. In other words, the procedure carried out to obtain the statement does not constitute a means of proof. This is how the lower court (a quo) interprets decision No. 6808-2002 of the Constitutional Chamber, when it states that the trial court is competent to exercise control over the legality of the aforementioned instrument, that is, only to review the concurrence of the legal requirements for the application of the mechanism, but not to decide whether or not said discretion should have been granted, or other issues related to the decriminalizing effects derived from it. Although the constitutional court points out that this control corresponds to the trial court, the fact is that, apart from the fact that numeral 24 of the Code of Criminal Procedure provides the opposite, in that particular case the issue addressed by the Constitutional Chamber was the provisional nature of the effects of the collaboration agreement and not matters related to the body competent to decide on the waiver of criminal prosecution. It is, moreover, an isolated pronouncement, prior to two different and analogous ones (No. 12090-2009 and 1119-2005), which do not confer similar scope to the control that the trial court must carry out, besides the fact that the last two opinions, along with 2662-2001, are binding. ***viii)*** The procedure related to the application of the prosecutorial discretion is independent of the proceeding in which the collaborator must give his statement. Furthermore, it does not involve a definitive and irreproducible act, nor does it imply the practice of pretrial evidence (as happens, e.g., with searches, or the interception of communications), since the collaborator's statement must be given during the trial. That is why it can be assessed by the trial court. Similarly, in the cases mentioned, the legality of the evidentiary elements is not made dependent on issuing a prior judgment on the imputed conducts, or the guilt of the implicated persons—as does happen with the prosecutorial discretion—hence the treatment given to it by the legislator is different. ***ix)*** It is not up to this court to examine, to confirm or dismiss, the decision of the female criminal judge that authorized the application of the prosecutorial discretion (namely, the decision of 9:51 a.m. on June 1, 2007, visible at folios 41 to 89 of the separate file where it was processed). ***x)*** The application of the prosecutorial discretion is regulated. Regarding the scope of jurisdictional control, whether it concerns only compliance with the formalities provided by law, or also encompasses evaluative or substantive requirements—e.g., verifying the concept of lesser blameworthiness—the trial court understands that said control is limited to verifying the formal or legal requirements, excluding the evaluative ones, without the jurisdictional decision being able to substitute that of the prosecutor's office, nor invade its authority over the convenience or timeliness of the measure, nor examine aspects specific to the accusatory function. In support of its position, it cites several decisions of the Constitutional Chamber, e.g., numbers 2662-2001, 12090-2009, 6808-2002, and 1119-2005, Nombre02 as well as several rulings of the Third Chamber, specifically, No. 795-2009—in which it was stated that control encompasses the substantive requirements—and No. 450-2004, in which the criterion expressed by the Constitutional Chamber, which the trial court shares, was adopted.

It adds that the <span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial">, in line with the adopted democratic model, essential functions cannot be concentrated in a single organ, but must be distributed and their exercise controlled. From that perspective, it could not be admitted that the criterion of the criminal judge should prevail over that of the Public Prosecutor's Office regarding the investigation and exercise of criminal action. As for the control that the trial court must carry out, it insists that it must correspond to the evidence received at trial. The deposition of the collaborator, given orally in the adversarial process, in the presence of the parties, is what has the status of evidence. The trial court's control over the procedure followed to authorize the prosecutorial discretion criterion (criterio de oportunidad) is only insofar as it is the antecedent for the described appearance, since not being a means of proof, the court must limit itself to verifying the formal aspects pointed out by the Constitutional Chamber (Sala Constitucional), that is, the existence of the prosecutorial request, hierarchical authorization, and approval by the judge. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xi)</span><span style="font-family:Arial"> Although the Third Chamber (Sala Tercera) has proceeded to assess the conduct of the alleged beneficiary and of the accused against whom he testifies, in none of the cases has it attributed such a task to the trial court, something it could not do in any case without compromising essential guarantees. In this regard, it cites resolutions No. 1061-2008 and 795-2009. In the first, the trial court considered that there were irregularities in the early evidentiary proceeding (anticipo jurisdiccional de prueba) of a deponent, for which reason it deprived it of all evidentiary efficacy. Faced with this, the Chamber considered that although in the particular case the criterion had not been granted, the conditions for it were not met either, as the collaborator's participation was fundamental. Against this, the majority vote maintains that the cassation body at no time claimed that it was the task of the trial court to assess the appropriateness of the cited criterion, nor to contrast the conduct of the deponent and the accused. The Chamber carried out that analysis based on the self-incriminating declaration itself, an exercise that before the judgment the trial court cannot perform and which is different from the scenario in which, according to the same cassation body, that examination should be conducted, namely, when an attempt is made to receive a self-incriminating narration without observing the respective guarantees. In the second vote, the Third Chamber affirmed that the trial court should have limited itself to pointing out the non-existence of judicial approval of the prosecutorial discretion criterion, without it being its task to assess the collaboration criterion, qualify it, and much less invoke for that purpose the content of the evidence produced before hearing the deponent's account. This matter is fundamental, because a habeas corpus was filed in favor of the collaborator, resolved by the Constitutional Chamber in vote No. 6808-2002 and in which it was considered proven that to declare the described agreement illegal, the court argued that the liability possibly attributable to the protected party would be similar to that of other accused and that the information he could provide would not be determinative for the outcome of the process. The <span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> considers the minority position expressed in that judgment No. 6808-2002 to be central, since it explains that the trial court was forbidden from anticipating the result that the accusation would have; from establishing the authorship corresponding to the so-called "crown witness" when it has not yet ruled on the accusation in which other authors and co-authors of the act are cited and from which the collaborator is excluded; from speculating about the result of the action that the Public Prosecutor's Office has not exercised and from basing the rejection of the criterion on an assessment of the evidence and facts not contained in the accusation. According to Mr. Fernando Cruz Castro, judge who subscribes to that minority position, it is only after the evidence has been received at trial that the sentencing court can determine if the collaborator's action is less reprehensible than the one it facilitated resolving and if his collaboration has been decisive. Based on this, the judges conclude that although the Third Chamber has assessed and compared the conduct of the collaborator and those involved to determine whether the prosecutorial discretion criterion has been properly granted or not (which in any case is questionable, since in such cases the beneficiary, against whom the criminal action has not even been exercised by the entity empowered to do so, is not being judged), this is a task that is feasible to do in cassation, firstly because it is carried out <span style="font-family:Arial; font-style:italic">ex post</span><span style="font-family:Arial"> (relying even on the assessments of the trial court) and secondly because it does not compromise the impartiality of the jurisdictional body, as would happen if the trial court does it. They mention, by way of example, resolutions No. 737-2001 and No. 136-2003 of the Third Chamber, in which it was never indicated that the trial court must make that analysis before issuing a judgment, or that it is responsible for controlling the decriminalizing effects of the institute. Furthermore, in cases where that prior judicial control has not been exercised (No. 175-2003 and 114-2006, both from the Third Chamber), the only consequence derived from this has been the inability to admit the statement, but not the requirement of verification of said examination by the sentencing court. Finally, in ruling 795-2009 of the Third Chamber, in view of the lack of compliance with the prescribed legal procedure and the non-existence of judicial approval, it was said that it is the task of the Public Prosecutor's Office to supply those deficiencies and therefore, to seek the suspension of the trial while the issue is resolved, from which it follows that it is not the trial court that must carry out the judicial control and that these errors, as suggested by the Chamber, can even be corrected in the adversarial process. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xii)</span><span style="font-family:Arial"> After reiterating that judicial control over the application of this institute is limited to compliance with legal requirements, the majority vote points out that there is a third limitation for the trial court in the referred control, namely, the duty to guarantee its impartiality. They understand that it cannot rule on the issue of the lesser reprehensibility of [Name01 064] without reasoning at the same time about the substantive law under discussion, or without comparing the conduct of the accused with that of the former, which would mean anticipating judgment on the facts. They refer again to the minority vote in resolution No. 6808-2002 of the Constitutional Chamber, in which Judge Cruz Castro pointed out that the impartiality of the court would be weakened if it intervenes in accusatory powers, ruling on the possible criminal liability of a person who, although benefited by a prosecutorial discretion criterion, has not been accused. Therefore, they underline that the control that corresponds to the trial court, different from the one that the criminal judge who authorized the application of the institute had to carry out, is only to establish the legality of the appearance of the "collaborating declarant," verifying compliance with the legal requirements determined at the time of granting such authorization and described in numeral 22 of the Code of Procedure, namely, that there is an express request from the prosecutor's office, that there is hierarchical authorization to carry out the procedure, and that there is judicial approval, all of which are fully met in this case. The assessment of the statement is a separate issue. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">xiii)</span><span style="font-family:Arial"> Regarding the lack of reasoning in the resolution that authorized the prosecutorial discretion criterion, the trial court reiterates that it is not its responsibility to decide if the application for the prosecutorial discretion criterion should have been admitted or rejected, nor if the decriminalizing effects should arise from it. It insists that it has no standing to exercise control over the resolution of the referenced criminal judge, issued in observance of the guarantee of the natural judge, in a process different from this one and concerning someone who is not accused in this case. It was the criminal judge who was responsible for controlling the legality of the decriminalizing effects of the prosecutorial discretion criterion, therefore, both out of respect for her independence—since the trial court lacks competence to assess her performance and judge whether it adhered to the legal conditions—and in application of the principles of impartiality and legality, which prevent the arrogation of an unforeseen task, it is not feasible to hear the objections formulated by the defense and therefore, it is only appropriate to analyze the legality of the criterion as an antecedent of the deposition of [Name01 064], determining that it was processed in a separate file, through a prosecutorial procedure that had the approval of the hierarchical superior, which was presented to the judge of the intermediate stage who exercised the respective judicial control and approved it. </span><span style="font-family:Arial; text-decoration:underline">Having analyzed these reasonings, the undersigned consider that they are not acceptable</span><span style="font-family:Arial; font-weight:bold; font-style:italic">.</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial">The judges who subscribe to the majority vote make an effort to separate the declaration made by [Name01 064] at trial from the procedure followed to apply a prosecutorial discretion criterion in his favor; however, it is notorious that if this accused collaborated, it was with the purpose of fulfilling the pact he had made with the Public Prosecutor's Office. The expectation of obtaining impunity in relation to a series of criminal acts that, at least in principle, could be attributed to him, is what incentivized [Name01 064] to collaborate, waiving his right not to testify against himself (Article 36 of the Political Constitution) and the same state of innocence that protects him (Art. 39 of the Constitution). Therefore, we speak of intrinsically associated procedural acts, where the realization and, of course, the legitimacy of one (the testimony, a term used in a non-technical sense as it is not offered under oath) is conditioned by the legality of the other (the agreement). It is not unknown that the declaration of [Name01 064], as evidence, was produced at trial; however, this in no way modifies the previously stated conclusion, since if it took place it was precisely because it was contemplated in the negotiation, from which it originates and derives. Having clarified the above, it is appropriate to make some general reflections on the principles that underpin our criminal process and that are indispensable to establish the scope of judicial control over the application of prosecutorial discretion criteria by the requesting body. We begin with an obviousness, namely, that both the agreement made by the Public Prosecutor's Office and the resolution that authorized it are acts that <span style="font-family:Arial; font-style:italic">are subject to the rule of law</span><span style="font-family:Arial">. According to Article 11 of the Political Constitution, every public body, as a mere depositary of authority, <span style="font-family:Arial; font-style:italic">is obliged to fulfill the duties that the legal system imposes on it, and it can also only act to the extent that the latter allows it</span><span style="font-family:Arial">. Article 39 of the same Constitution states that no one shall be made to suffer a penalty except for a crime, quasi-crime, or misdemeanor, sanctioned by prior law and by virtue of a final judgment issued by competent authority, <span style="font-family:Arial; font-style:italic">after the accused has been given the opportunity to exercise their defense and through the necessary demonstration of guilt</span><span style="font-family:Arial">. From both norms derives not only the principle of legality regarding crimes and penalties, but also regarding the procedure, as stated in the Criminal Procedure Code (hereinafter C.P.P.) in its Article 1, when it states: <span style="font-family:Arial; font-style:italic">"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…".</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> As can be seen, we speak of a provision that imposes the duty to respect procedural forms, not because these are valuable in themselves, but because they are intended to guarantee the rights of the parties, particularly those of the accused against whom the criminal action is exercised and more specifically, against whom the so-called "crown witness" testifies. The majority vote says that the requirements contemplated in Article 22, subparagraph b) of the C.P.P. are both substantive and formal and that the criminal judge cannot control compliance with the former. It is a position that this Court of Appeals does not share, because it would mean an indisputable breach of the principle of legality mentioned above. In general terms, two general models can be identified for the application of prosecutorial discretion criteria. In one, discretion is the rule, a guiding principle of criminal prosecution. As pointed out by Name13, in this model applied, e.g., in the United States of America, the principle of legality is disregarded to such an extent that the foundations of the criminal justice administration system would be threatened if this principle were adopted even partially: <span style="font-family:Arial; font-style:italic">"…the force of this conclusion is so vigorous that the power of selection resides in the public prosecutor's office (also in the police that interacts with it in criminal prosecution) and is inherent to it, just as the governmental acts of the Executive Branch are discretionary, based on the constitutional principle of separation of powers; the practical reason is also indisputable: with this weapon, the public prosecutor's office governs the criminal process and its concrete form (through tools that, in accordance with the pursued objective, allow it to vary the nature of the procedure, to abbreviate it: plea bargaining, guilty plea), and harmonize its possibilities of pursuing criminally with efficiency (number of cases and complexity), with the personal and material resources of the justice administration in general, within the framework of a concrete and direct strategy for the better and more efficient application of the law."</span><span style="font-family:Arial"> (Name13. <span style="font-family:Arial; font-style:italic">Derecho Procesal Penal</span><span style="font-family:Arial">. Buenos Aires, Editores del Puerto s.r.l., 3rd reprint of the 2nd edition, 2004, p. 836). In the same vein, Name14 notes that, in this scheme, the discretionary powers of the requesting body are of such magnitude that in practice <span style="font-family:Arial; font-style:italic">"…it is the prosecutor who completely dominates the procedure. These powers are not limited to the possibility of freely withdrawing the charge (prosecution), but also cover a wide spectrum of 'intermediate' acts, so to speak, such as the prosecutor's power to propose a reduction in the charges on which the accusation has been based or that appear in the police report; even the public prosecutor's office can grant immunity in exchange for having collaborated with the government in the investigation…"</span><span style="font-family:Arial">. (Name14. "Facultades discrecionales del ministerio público e investigación preparatorias: el principio de oportunidad." In: Name13 (Comp.). <span style="font-family:Arial; font-style:italic">El Ministerio Público en el proceso penal.</span><span style="font-family:Arial"> Buenos Aires, Ad Hoc S.R.L., 1993, pp. 89-90). In legal systems where the principle of discretion in the exercise of criminal action prevails and not its mandatory nature, there is no problem whatsoever in accepting that an accused collaborates in exchange for obtaining certain benefits or rewards, for example, not being investigated or prosecuted for certain acts. Faced with this model, where the discretion of the requesting body is absolute, we find another characteristic of States that have adopted the European continental system and in which, in accordance with the principle of legality, the exercise of criminal action <span style="font-family:Arial; font-style:italic">is a duty</span><span style="font-family:Arial">. In this context, refraining from prosecuting a criminal act committed by an accused who collaborates with the investigation, or suspending the exercise of the already initiated action, is not a decision free from controversy. So much so, that while some consider that the collaborator must be prosecuted criminally and can only have their penalty mitigated or be exempted from it, for others (and the Costa Rican Criminal Procedure Code was inserted into this position) it is legitimate to exclude the exercise of criminal action. Regarding the first position, Name15 tells us: <span style="font-family:Arial; font-style:italic">"The reward for 'procedural repentance', that is, the reward derived from the guilty party's collaborative counter-conduct in the investigation of the criminal act, in the abstract, can have a merely procedural transcendence, in those legal systems in which, as occurs in Common Law States where the prosecutorial discretion principle governs criminal action, translating into the possibility of not exercising criminal action or even, once initiated, suspending it. However, in States where the continental system of Law governs, in which the exercise of criminal action is mandatory, the reward for the procedural collaboration of the guilty party must be substantivized in substantive criminal law, through specific mitigations of penalty or even exemptions from it, albeit after a criminal process in which the repentant's guilt is determined."</span><span style="font-family:Arial"> (Name15, Ignacio Francisco. <span style="font-family:Arial; font-style:italic">El "colaborador con la justicia": aspectos sustantivos, procesales y penitenciarios derivados de la conducta del "arrepentido"</span><span style="font-family:Arial">. Spain, Dykinson, 2004, p. 29. ProQuest ebrary. Web. 10 November 2015, p. 43). On the second position, and specifically on the Costa Rican case, Name16 tells us: <span style="font-family:Arial; font-style:italic">"In accordance with the provisions of the German procedural ordinance (arts. 153 et seq.), the Model Criminal Procedure Code for Ibero-America (arts. 230 et seq.), the Argentine Criminal Procedure Code project of 1987 (art. 15), and the Guatemalan Criminal Procedure Code project (art. 10), it is admitted in certain cases, clearly predetermined, that the prosecuting entity, with the authorization and supervision of the jurisdictional body, may totally or partially dispense with criminal prosecution. The principle of legality in the exercise of criminal action will continue to prevail; however, the introduction of the prosecutorial discretion principle in certain clearly defined cases, under judicial control, allows for a significant rationalization of criminal prosecution, preventing the intervention of state repression in cases where it is not really justified. As in the previous Code, in the current one, the guiding principle for the exercise of public criminal action is mandatory prosecution. However, as a novelty, the cited Code establishes the prosecutorial discretion principle, by virtue of which the Prosecutor may request from the respective Court the suspension or dismissal of the preliminary investigation, if any of the pre-established legal criteria concur in the matter. Thus, Article 22 provides that the representative of the Public Prosecutor's Office, with prior authorization from their hierarchical superior, may request that criminal prosecution be dispensed with, totally or partially, limited to one or several infractions or to some of the persons who participated in the act …".</span><span style="font-family:Arial"> (HOUED VEGA, Mario. <span style="font-family:Arial; font-style:italic">El proceso penal en Costa Rica</span><span style="font-family:Arial">. San José, Supreme Court of Justice, 2000, s.n.p., available at: http://biblioteca.icap.ac.cr). Ultimately, although the Costa Rican legislator contemplated the principle of mandatory prosecution of criminal action (e.g., Art. 289 C.P.P.), it also provided <span style="font-family:Arial; font-style:italic">an exhaustive list of scenarios</span><span style="font-family:Arial"> in which it is plausible to provide something different, hence it is a matter of <span style="font-family:Arial; font-style:italic">regulated discretion</span><span style="font-family:Arial">. In the case of subparagraph b) of Article 22 of the C.P.P., which contemplates the case of the so-called <span style="font-family:Arial; font-style:italic">crown witness or repentant</span><span style="font-family:Arial">, the application of the prosecutorial discretion criterion is conditioned upon compliance with a series of requirements: <span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span><span style="font-family:Arial"> that the prosecutor requesting to totally or partially dispense with criminal prosecution acts with prior authorization from their hierarchical superior; <span style="font-family:Arial; font-weight:bold; font-style:italic">ii)</span><span style="font-family:Arial"> that it is a matter of organized crime, violent criminality, serious crimes, or complex proceedings; <span style="font-family:Arial; font-weight:bold; font-style:italic">iii)</span><span style="font-family:Arial"> that the accused collaborates efficiently with the investigation, providing essential information to prevent the crime from continuing or others from being perpetrated, to help clarify the investigated act or other connected acts, or providing useful information to prove the participation of other accused; <span style="font-family:Arial; font-weight:bold; font-style:italic">iv)</span><span style="font-family:Arial"> that the conduct of the collaborator is less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents. <span style="font-family:Arial; text-decoration:underline">In this matter, the trial court, faced with a clear norm such as Article 22 of the C.P.P., carries out an unnecessary interpretive exercise to give it a content it does not have</span><span style="font-family:Arial">. Despite the fact that the provision does not distinguish between "formal" and "substantive" requirements, the <span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> concludes that judicial control can only concern compliance with the former and that, therefore, it is not appropriate to examine whether the conduct of the collaborator is less reprehensible than the punishable act whose prosecution he facilitates. In maintaining the above, it also recognizes, although without saying it expressly, that the requirement is not such, since the requesting body can act with absolute discretion, which is unacceptable in a criminal process like ours, governed by the principle of legality and in which, it is insisted, by express provision of the legislator, <span style="font-family:Arial; text-decoration:underline">the application of any prosecutorial discretion criterion is conditional upon the judge verifying compliance with </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">all</span><span style="font-family:Arial; text-decoration:underline"> the formalities contemplated in numeral 22 C.P.P.</span><span style="font-family:Arial">. At this point in the exposition, it is essential to differentiate between <span style="font-family:Arial; font-style:italic">the prosecutorial discretion principle</span><span style="font-family:Arial"> reflected in the cited Art. 22 <span style="font-family:Arial; font-style:italic">supra</span><span style="font-family:Arial"> and <span style="font-family:Arial; font-style:italic">the legal requirements for its application</span><span style="font-family:Arial">, also described in that norm. One thing is the granting of a scope of freedom to the requesting body so that, by reason of its prosecutorial policy, it chooses the matters with respect to which it deems opportune to dispense with or limit the exercise of criminal action, and another distinct thing are the requirements demanded by Art. 22 to materialize that claim and within which, for what is relevant here, the lesser reproach to the collaborating accused is contemplated. Controlling strict compliance with these is the responsibility of the judge, which in no way would mean an invasion of the functions granted to the Public Prosecutor's Office, since the discretion granted to that public body is regarding the selection of cases, accused, and crimes with respect to which it <span style="font-family:Arial; text-decoration:underline">requests</span><span style="font-family:Arial"> the application of the prosecutorial discretion criterion, and it is on this request that it must be the jurisdictional body that <span style="font-family:Arial; text-decoration:underline">decides</span><span style="font-family:Arial">, after prior verification, as already stated, of the observance of <span style="font-family:Arial; font-style:italic">the legal requirements</span><span style="font-family:Arial"> -hence one speaks of regulated discretion-. In this context, the division that the trial court makes of the requirements contemplated in Article 22, subparagraph b) C.P.P. is completely unfounded, since both those it calls <span style="font-family:Arial; font-style:italic">substantive or evaluative</span><span style="font-family:Arial"> (namely, the lesser reproach that must correspond to the conduct of the collaborator) and those it calls <span style="font-family:Arial; font-style:italic">formal</span><span style="font-family:Arial"> (express request from the prosecutor's office with prior authorization from the hierarchical superior and judicial approval), <span style="font-family:Arial; font-style:italic; text-decoration:underline">are legal and formal requirements</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> (this insofar as they are <span style="font-family:Arial; font-style:italic; text-decoration:underline">formalities</span><span style="font-family:Arial"> described in the legislation), indispensable for the application of the institute to proceed and whose verification has been entrusted to the judge. In short, we speak of two different issues. On the one hand, <span style="font-family:Arial; font-style:italic">the discretion</span><span style="font-family:Arial"> -scope of discretion of the requesting body in the selection of matters where it requests the application of the criteria- and on the other, the requirements provided for by the legal system for that application to take place. Just as the Public Prosecutor's Office is free to determine when it is opportune to dispense with or limit criminal prosecution in exchange for obtaining the collaboration of an accused, without anyone, public body or not, being able to force it to make a pact if it does not wish to, it is the judge who is responsible for corroborating that in the cases selected by the requesting body, each and every one of the requirements contemplated by the legislator have been satisfied. Having clarified the above, we have that in this matter, the complaints against the prosecutorial discretion criterion applied to [Name01 064] do not focus on the first aspect—in fact, no one disputes that the prosecutor's office was free to choose [Name01 064] to the detriment of other accused—but on the second, understandably, on compliance with the requirements to materialize that claim, an end that is subject to judicial control. As for the body that must exercise that control, although in principle it must be the criminal judge, since the request must follow the procedure established for the conclusion of the preparatory stage (Art. 22, last paragraph C.P.P.), nothing prevents the trial court, or other bodies hearing the matter as a result of an appeal, from assuming that task.

And it is that, in addition to the examination that the criminal judge must carry out, aimed at determining the appropriateness and application of the criterion, we also have the control that the trial court must exercise *a posteriori*, aimed at determining whether it is appropriate to receive the statement of the repentant individual, Nombre02, as well as the control that the court of appeal and the court of cassation itself could eventually exercise, with the purpose of establishing whether that statement can produce legal and evidentiary effects in relation to the subject against whom it is given. Therefore, the control exercised by the criminal judge does not exclude that which other jurisdictional bodies may carry out, whether on their own initiative or at the request of a party. Regarding this latter point, note also that the Code of Criminal Procedure indicates that absolute defects, as well as relative defects that have not been validated (arts. 177 and 178 C.P.P.) *must be cured*, a task that must be carried out *without rolling back the process to periods already precluded* (art. 179 of the same legal body), the above except in cases expressly provided for, for example, a remand ordered in cassation. From this, the general rule is extracted that, in the case of absolute vices or non-validated relative vices, the legal operator has *a duty* to correct them—the norm is preceptive—and must do so, save for the exceptions also contemplated by legislation, *without rolling back the process to stages already completed*, which necessarily implies that a claim against a defective act can be replicated in multiple procedural phases. Regarding this mechanism, Nombre18 states: *“Regarding the procedure in the NCPP, we can say, roughly speaking, that defective procedural activity is susceptible to being claimed before the Intermediate Procedure Court. It is at this stage that all aspects relating to matters not cured in the preparatory stage, Nombre11 that have not been validated by the inaction of the parties (arts. 15 and 317 subsection a. NCPP), must be resolved, and in case a positive response is not found, those defects can be claimed during trial through the incidental route (art. 342 NCPP), and as a last alternative, they may be invoked in cassation or review when dealing with aspects that imply a violation of constitutional guarantees… In cases referring to procedural defects, it is required as a condition of admissibility that the party has made a timely protest or has requested the curing, except in the case of absolute defects…”* (Nombre18. “Defective Procedural Activity.” In: *Costa Rican Criminal Procedural Law*. San José, Asociación de Ciencias Penales de Costa Rica, Volume II, 2007, pp. 230 and 231). The Constitutional Chamber has also repeatedly ruled on the form of horizontal control mentioned before, as opposed to the vertical control corresponding to appeals. For example, in resolution No. 1999-01550, at 3:15 p.m. on March 3, 1999, when resolving an action of unconstitutionality against articles 437 and 315, in relation to 311, all of the C.P.P., in which it was claimed that such norms omitted the possibility of appealing a ruling that denies a dismissal, it indicated: *“Non-existence of appeal regarding the resolution that rejects an incident of nullity… Nevertheless, it is possible to affirm that the non-existence of an appeal regarding a resolution that denies an incident of nullity does not violate any element of due process. It is not the legislator's obligation to establish a second instance for all resolutions and actions in the process. The mere existence of an appeal does not in itself guarantee compliance with due process. Hence, the obligation to enable a second instance for the accused, from a human rights protection perspective, is in relation to the conviction, as established in Article 8, second paragraph, subsection h) of the American Convention on Human Rights. For its part, article 437 of the Code of Criminal Procedure merely indicates which are the appealable resolutions. If some irreparable harm occurs, that norm enables the appeal even if the resolution was not expressly declared appealable. If the resolution does not produce irreparable harm, one may proceed as provided in articles 175 and following of the same Code, that is, the vice may be validated or it may be cured. Moreover, as indicated in the previous considering clause, the non-existence of an appeal in relation to a resolution that does not put an end to the matter does not entail any harm to the fundamental guarantees of the parties, since the matter may be raised again in later stages and even in cassation in the case of a conviction. Thus, the challenged norm causes no violation of due process and for that reason the action must be rejected on the merits also with respect to that particular.”* In summary, horizontal control derives from the very structure of our criminal process. Save for the specific limitations extracted from the provisions in articles 175 and following of the Code of Criminal Procedure (e.g., that it is a vice that is already validated for any of the reasons indicated in art. 177 C.P.P.), the parties may raise their objections again in later stages, and the corresponding court, according to the procedural phase, will be obligated to resolve them. In addition to the foregoing, we have that the Third Chamber of the Supreme Court of Justice has peacefully assumed that jurisdictional bodies—the criminal judge, the trial court, the criminal sentence appeals courts, or even the Chamber itself—are competent to examine whether conduct is or is not less reprehensible than others, for the purpose of determining whether an prosecutorial discretion criterion has been correctly granted. For example, in resolution No. 2001-00737, at 9:10 a.m. on July 27, 2001, it was indicated: *“The core issue upon which a judgment must be made with a view to determining whether the criterion under discussion may be used, is the reprehensibility of the concrete conduct of the ‘collaborator’ in the act under investigation or in the one related to it, and its lesser degree when compared to that of the remaining persons in whose prosecution cooperation is provided. The defense, then, errs in generically affirming that the prosecutorial discretion criterion is inapplicable to co-perpetrators or participants in the same crime under investigation, for the law is clear in providing the contrary. In the present case, the Public Ministry maintained the thesis—admitted by the a quo court in the judgment on the merits—that the witness Nombre19. participated in the act by striking a third party whom he left unconscious (Nombre20.), but whom he did not kill; while the other persons attacked two other victims until causing their death. In this context, even if the defender's interpretation were admitted (in the sense that Nombre21. participated actively, with control over the act in the two homicides that were materially executed by other subjects), the fact is that nothing prevented applying the prosecutorial discretion criterion in his favor, since the reprehensibility of his conduct (which, in the final analysis, only produced a slight incapacity in Nombre22.) is far less than that of the actions attributed to the other participants in the events, who indeed would have directly sought the death of Nombre21.Nombre23. and Nombre24.”* . Something similar occurs in judgment No. 00795-2009, at 2:35 p.m. on June 16, 2009. In this, the Third Chamber concluded, both that the acts committed by the collaborator may be different from the act whose prosecution is facilitated, and that the lesser reprehensibility corresponding to the former is one of the essential prerequisites that the judge must verify upon approving the request for application of the prosecutorial discretion criterion: *“The prosecutorial discretion criterion based on the cooperation that one of the participants in the crime provides to pursue the others (or those of another more serious illicit act), constitutes a way to extinguish the criminal action with respect to the collaborator, it is appropriate in cases of organized crime, violent criminality (like the homicide investigated here), serious crimes or those of complex processing, and it demands two other essential conditions: that the conduct of the collaborator be less reprehensible than the punishable acts whose prosecution is facilitated or whose continuation is avoided, and that the information provided satisfies the intended expectations. Of course, the cooperator may be a participant in the same crime to be prosecuted (procedurally: a co-accused) or the perpetrator of another less serious punishable act. The procedure for applying the prosecutorial discretion criterion in this hypothesis includes the authorization of the hierarchically superior of the prosecutor (v. gr.: the deputy prosecutor, with respect to the assistant prosecutor), who must request the judge of the intermediate stage to approve the prosecutorial discretion criterion. If the judge admits it, after verifying the concurrence of the essential prerequisites (the type of criminality, the lesser reprehensibility of the collaborator's conduct, and the authorization of the competent prosecutor of the Public Ministry), the judge will decree the suspension of the exercise of the public criminal action, which shall remain in that state until fifteen days after the judgment rendered against the remaining accused (that is: those intended to be sanctioned with the help of the collaborator) becomes final, at which time a definitive decision must be made as to whether the criminal action is extinguished… In this matter, the defender questions the court's agreement, which convicted three of the participants in the homicide, to refuse to receive the testimony of the ‘collaborating’ accused, and instead, to order her detention and deem the signed cooperation agreement illegal. Regarding this point, it must be recalled that what occurred was due to the actions and omissions of the Public Ministry, which merely signed the agreement but failed to comply with the other required procedures (securing the authorization of the hierarchically superior and the judge's approval to declare the criminal prosecution suspended). From this perspective, no objection can be made to the act of the said trial court in rejecting the proposed testimony, since the truth is that such a request sought nothing other than to receive as a witness (even without oath) a person who, as was evident in the case file, was rather an accused who had been subjected to an investigative statement, but whose legal situation had not been defined through any jurisdictional pronouncement. As stated, the suspension of the exercise of the criminal action against Nombre25. was never decreed, and, in fact, the agreement had not been submitted to a judge's examination, such that the trial court was the first jurisdictional body having contact with the issue. Despite the foregoing, all of the court's actions cannot be endorsed either, insofar as they amounted to declaring the illegality of the agreement, since it would have been sufficient to reject the testimony, pointing out the failure to comply with the established legal procedure and, above all, the lack of jurisdictional approval, such that it was incumbent upon the Public Ministry to correct the deficiencies incurred and seek suspension of the oral trial while securing hierarchal and judicial approval of the agreement, so that the ‘collaborator's’ testimony could finally be received in the trial against the other crime participants, or alternatively, in the event such approvals were denied, to continue with the criminal prosecution of the individual. It is not the task of the trial court to declare the ineffectiveness of a collaboration agreement signed by a person who is presented as a witness without oath (or, to be more precise, an accused or co-accused whose prosecution is suspended), invoking for that purpose the content of the evidence received before listening to the account the deponent would give. What it can do is refuse to receive the testimony if, as occurred here, the legal procedures established for applying the prosecutorial discretion criterion were not fulfilled. On the other hand, it must be emphasized that all the problems arising in this case and in relation to the accused are the exclusive responsibility of the Public Ministry…”* . Finally, in judgment No. 01712-2013, at 2:21 p.m. on November 22, 2013, the cassation body affirmed that said control must also be exercised by the criminal sentence appeals court: *“I. By means of resolution number 2013-1330, at eleven hours nine minutes on September twenty, two thousand thirteen, this Chamber admitted for merits review the cassation appeal filed by Mr. Nombre26, … In the sole ground in favor of the defendants Nombre04.Nombre27., Nombre28., and Nombre29., he alleges the non-observance of procedural legal precepts, specifically, the provisions of articles 142 and 459 of the Code of Criminal Procedure. In the defender's opinion, the Court of Appeal did not rule on all the aspects that were expressly challenged before it. In that sense, he points out that the incorrect assessment of article 22 of the Code of Criminal Procedure was claimed, upon considering that the participation of the person who was granted a prosecutorial discretion criterion was not less reprehensible than the conduct attributed to the other accused; however, he considers that the analysis performed by the Court of Appeal was limited to a review of the reasons why credibility was granted to that witness, and to agreeing with the thesis set forth in the judgment, without analyzing the substantive issue… II. The claim is admissible. After conducting a careful study of judgment number 92-2013, issued by the Criminal Trial Court of the Third Judicial Circuit of San José, at eleven hours on February twenty-fifth, two thousand thirteen; as well as resolution number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, of the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José, this Chamber considers that the private defense is correct in the claim filed. For purposes of beginning the analysis on the merits of this matter, it is necessary to start from the factual framework that the Trial Court held as proven: “1. On April 10, 2010, at approximately 6:00 p.m., the victim Nombre30., alias ‘Nombre31’, was in San José, Alajuelita, Concepción Arriba, Dirección01, outside Bar Betos, consuming liquor. 2. In the same place, on the date and time mentioned, the accused and administrator of said bar, Nombre32., was present, in the company of the co-accused Nombre33., c.c. ‘Nombre33.’, who argued with the victim over a previous problem, to the point of threatening him with death. 3. Immediately thereafter, the accused Nombre34. and Nombre09., acting by common agreement and with the aim of killing the aggrieved party Nombre35., contacted by telephone the also accused Nombre36., alias ‘Nombre37’, to whom they offered the sum of two million colones to carry out said homicide. 4. By virtue of the above, the co-accused Nombre36., acting by common agreement and according to the plan previously established with the accused Nombre32.Nombre38. and Nombre33., contacted the also accused Nombre39., alias ‘Nombre40’ (who is being prosecuted separately for these acts in expediente 11-000052-1042-TP with whom a prosecutorial discretion criterion was negotiated) and Nombre29., to carry out the homicide of Nombre41. 5. As part of the plan previously established, the accused Nombre36., Nombre05. and Nombre29., boarded, near the former Fuerza Pública Delegation of Concepción de Alajuelita, the white colored, Hyundai brand, Accent model vehicle, license plate…, which was driven by the co-accused Nombre42., alias ‘Nombre43’, who, without knowing about the previously agreed payment, but knowing that a homicide was going to be committed, was accompanied by the also accused Nombre44., alias ‘Nombre45’ (who is being prosecuted separately for these acts in expediente 12-000012-1042-TP), brother of Nombre33., who moved toward the place where the victim was, with the purpose of killing him. 6. At approximately 11:30 p.m. that same day, the victim Nombre46.Nombre47. was outside Bar Betos, at which time the accused Nombre32. and Nombre33., Nombre11 acting by common agreement, according to the plan previously established and with a clear division of tasks, communicated by telephone with the co-accused Nombre36. and informed him of the exact location of the victim, in order to secure his death. 7. Immediately thereafter, once these accused arrived near Bar Betos, the defendants Nombre39. and Nombre29. got out of said vehicle, at which time the co-accused Nombre42., according to the plan previously established to ensure the subsequent escape from the place, parked approximately 50 meters north of the point where the victim was located, a place where he waited for them while they carried out the homicide, in the company of the co-accused M.A.S. e Nombre36., who beforehand had given them the respective operational instructions to execute said crime. 8. Immediately thereafter, the accused Nombre39. and Nombre29., acting by common agreement with the also accused Nombre28., Nombre33., Nombre44.Nombre48., Nombre36. and Nombre42., approached the victim and without any justification and with total disregard for his life, shot him multiple times with firearms, also wounding the co-accused Nombre29.… 10. As a consequence of the illicit actions of all the accused, the victim suffered seven wounds produced by firearm projectiles, located in the thorax, abdomen, right buttock, right upper extremity and left lower extremity, which caused his death that same day, at Hospital San Juan de Dios, the cause of death being: Firearm projectile wound to the thorax with cardiac laceration with left hemothorax and hemopericardium and the manner of death: Homicide from a medico-legal perspective.” Thus, for the Trial Court, it was duly accredited that the defendants Nombre39. and Nombre29. were the material perpetrators of the homicide, because in the division of tasks previously agreed upon among all the co-accused, it was the two of them who agreed to execute the charged crime, firing on various occasions with the firearms they carried, in order to end the victim's life. Now then, the Public Ministry decided to negotiate a prosecutorial discretion criterion with the co-accused Nombre39., who collaborated with his statement, in the capacity of a crown witness. This arrangement was objected to by the defense of the other defendants, pointing out that the legal prerequisites for the applicability of the prosecutorial discretion criterion were not met, since the accused had the status of co-perpetrator in the charged acts, was the material executor of the homicide, and his conduct was as reprehensible as that of the other co-perpetrators. The protest for defective procedural activity was resolved in the first considering clause of the judgment issued by the Trial Court (visible from folio 1223 of volume II of the investigation file). In summary, said protest was declared without merit, for the following reasons: 1) Article 22, subsection a) of the Code of Criminal Procedure grants the Public Ministry the discretion to wholly or partially dispense with criminal prosecution when the charged individual testifies against other participants in the act, in order to obtain a benefit, in relation to the reproach of his responsibility in the charged crime. 2) The negotiation is beyond the control of the other accused, it is not a right belonging to them, and it is a private arrangement between the Public Ministry, the defender, and the collaborator; therefore, the agreement has no obligation of publicity. 3) Regarding the degree of reproach of the conduct attributed to the crown witness, it stated: “The factual framework that has been demonstrated and that finds support in the accusatory instrument establishes that, due to criminal problems existing between a brother of the victim and a brother of the accused, frictions had arisen that culminated in the decision of the accused Nombre33. to pay a sum of two million colones with the sole aim of ending the life of Nombre21., which found justification in the brazenness of the latter at the business of Nombre49., in relation to his brother's alleged rights, given the debts of Nombre49. and a brother of his to him. And on April 10, 2011, and after one of these problems, Nombre49. and the co-accused Nombre28., taking advantage of the former's economic advantage, devised the death of the victim, deciding to pay third parties a sum of two million colones for that execution. In this way, it is feasible to conclude that those who had the control, the decision over that act, were Nombre49. and Nombre28., who assumed the primary role in the act, for it was they who decided to hire the co-accused Nombre50.Nombre46., so that he, in turn, could hire Nombre29. and the accused and crown witness, Nombre51., to carry out the death of the victim; furthermore, the defendant Nombre42. participated in the act, who was responsible for providing and driving the vehicle used to transport those who would be responsible for the commission of the criminal act. It is thus denoted that the planned homicide was even structured hierarchically, involving those who, in that small organizational structure, were the ones who decided and paid for the commission of the homicide. On a second plane, as we have said, we find Nombre46. who was the contractor-intermediary, and further down, it is even possible to find those who carried out the act materially, those who, in the Court's view, can be seen as replaceable pieces of that plan. The Court considers, then, that the participation attributed to Nombre51. can indeed be framed within a lesser reproach, this from the perspective of the organizational structure, where he followed orders from others, which reflects his lesser relevance in the acts. It is important to indicate that in relation to the decision of which accused should be granted the prosecutorial discretion criterion, it must be concluded that this is a power held by law by the Public Ministry, and that it will depend on the lesser reproach and on the information provided being sufficient, according to the prosecutorial criterion, without the Court being able to observe any defect in the fact that the Public Ministry chooses one accused to the detriment of others in order to benefit him with the non-prosecution of his criminal responsibility in the acts.” For its part, the Criminal Sentence Appeals Court of the Second Judicial Circuit of San José, in resolution number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, upon reviewing that same argument as one of the grounds of the appeal of the conviction, indicated: “i.- In the first instance, the defense has complained about the Public Ministry's agreement to grant a prosecutorial discretion criterion to one of those implicated in the case, arguing that the content of article 22 subsection b) of the Code of Criminal Procedure was exceeded, insofar as it was applied to the one who committed the most serious action of shooting the victim. This issue was extensively addressed in the judgment (ff. 1223-1226), making it clear that the Code of Criminal Procedure has granted a wide margin of discretion to the Public Ministry to transact within the criminal process, evaluating the appropriateness in each case, according to criminal policy guidance. It also indicated that agreements are not public, nor do non-interested third parties participate in the transaction, to the point that it is handled in a separate and independent file. Furthermore, the judgment points out that, according to what was demonstrated, the decision-making power to order the death of the victim was in the hands of Nombre33. and Nombre28., such that they are the ones to whom greater reprehensibility corresponds for the act, and to a lesser hierarchy, Nombre51., despite the fact that the latter was an executor of the orders given. This Court has examined the point and agrees with the thesis set forth in the judgment, that those who give orders and pay the reward for the victim's death and make others obey, have greater reprehensibility than the executors themselves, and thus we are before one of the prerequisites that authorizes the negotiation of prosecutorial discretion criteria in organized crime.” (see folio 1501 front and back). Regarding the above reasoning shared by both the Trial Court and the Court of Appeals, the following reflections are pertinent: The principle of prosecutorial discretion, contemplated in the procedural law as an exception to the principle of legality, [contains] a series of sine qua non conditions for purposes of applicability, as provided by the legislator. In this manner, in all cases, the prior authorization of the hierarchically superior of the prosecutor promoting the agreement is required, according to the different factual situations authorized by the legislator. The first of them, contemplated in subsection a) of article 22 of the Code of Criminal Procedure, provides: “It concerns an insignificant act, of minimal culpability of the perpetrator or participant, or with an exiguous contribution from the latter, unless there exists violence against persons or force against things, the public interest is affected, or the act was committed by a public official in the exercise of their duties or by reason of them.” According to the legal basis set forth by the trial judges in the conviction…, this is the applicable factual situation for the present matter. However, none of the requirements established therein are met in the case sub examine.

This Chamber considers that the crime of homicide is not, from any point of view, an insignificant act. The figure of the material perpetrator of the homicide contravenes the concept of “minimal culpability” or “meager contribution.” Taking a person’s life is the ultimate representation of violence against a human being and, therefore, directly affects the public interest. Consequently, the proven facts of the judgment fail to meet all the legal requirements enshrined in this factual scenario. If we move to the next substratum, contained in subsection b) of the article in question, it establishes: “It involves matters of organized crime, violent criminality, serious or complex-procedure crimes and the accused effectively collaborates with the investigation, provides essential information to prevent the crime from continuing or others from being perpetrated, helps clarify the investigated act or other related 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 is facilitated or whose continuation is prevented… Based on the foregoing, the acts charged here could conform to the stipulated guidelines on violent criminality, serious crimes, effective collaboration, helping to clarify the investigated act, and providing useful information to prove the participation of other accused, because there is a statement from the crown witness that, for the sentencing Court’s purposes, was sufficiently clear, convincing, and truthful regarding the participation of the other defendants, as well as regarding the motive and the dynamics developed, from the planning to the execution of the crime, capable of proving, jointly with the other incriminating evidence, the acts alleged. However, the law provides that in addition to those requirements, “the collaborator’s conduct must be less reprehensible than the punishable acts whose prosecution is facilitated or whose continuation is prevented.” It is regarding this last requirement that the defense directs its claim, and it is precisely on this point that a careful analysis must exist, in order to determine the legality and propriety of the prosecutorial discretion criterion (criterio de oportunidad) granted to Nombre38.Nombre39., in the capacity of what, in doctrine, is called a “repentant accused” or “crown witness” for the prosecuting entity. Without losing sight of the fact that this is a criminal structure in which there are clearly delimited functions among the participating subjects, a logical and analytical examination must be carried out, aimed at determining the essentiality and relevance of the conduct of the agent who seeks to benefit from the application of this legal mechanism. Based on the effective realization of the action attributed to them and the essentiality and significance in the harmful result, the lawful and proportional parameters that would demarcate the agreement between the parties are established; namely, the Public Prosecutor’s Office (Ministerio Público), defense attorney, and repentant accused or collaborator. Although the law grants the prosecuting entity a wide margin for negotiation and even the power to fully or partially waive criminal prosecution, it is also true that it sets a limit for the exercise of that discretion, insofar as it warns that the beneficiary must have a conduct less reprehensible than that attributed to the other co-participants in the act one seeks to stop or prove (The underlining is not in the original). Similarly, it gives the Public Prosecutor’s Office the possibility of grading the granting of that benefit, in order to assess the reprehensibility of the conduct compared to that of the other co-participants and the effectiveness of the collaboration provided in the investigation, as well as in obtaining the conviction. The grading of the benefit offered to the crown witness is directly related to whether the criminal prosecution is fully or partially waived and, therefore, to the elimination or reduction of the penalty to be imposed. Thus, an action deployed by a subject accused of real or personal facilitation in the criminal organization will not have the same level of reproach as the one who carries out the action as an accomplice to the most serious crime, just as it does not resemble that executed by the principal or co-principals. Therefore, there must be a correlation between the benefit offered and the degree of reprehensibility of the conduct, in such a way that a rational proportion is established to determine whether prosecution is completely waived or if, on the contrary, the illicit act is sanctioned in a less rigid manner, making the proposal attractive to the repentant accused, but at the same time, suitable for the ends of justice, thus avoiding the indiscriminate application of the same measure (fully waiving prosecution) to every type of participant in a crime, bypassing the legally established requirements for the application of this legal mechanism. It is for this reason that we consider the agreement made between the representatives of the Public Prosecutor’s Office, the collaborating accused, and their legal representative illegitimate, because there is no proportionality between the benefit received and the degree of participation in the charged acts. Contrary to what the judges assert in the conviction judgment and the appellate decision, the conduct attributed to the accused Nombre51. is highly reprehensible; since, acting in association with the defendant Nombre52., they cause the death of the victim here, that is, they materialize the act, without any justification whatsoever, other than the interest in receiving an undue pecuniary benefit. Opting for a different criterion is to accept that the figure of contract killing carries an insignificant or even null censure, as in the case before us, in which the conduct deployed by one of the co-principals is made inconsequential. The Public Prosecutor’s Office, for its part, has the legal authority to negotiate with the crown witness the imposition of a lesser penalty than that provided for the other co-participants, in this way, the impunity of a conduct that carries a high degree of reproach. It is also contradictory that, while the Prosecutor’s Office completely waives prosecution against Nombre51., for that same conduct and, therefore, with the same degree of reproach, Nombre52. is sanctioned to the extent of twenty-five years of imprisonment, as the responsible principal for the crime of aggravated homicide, just like the penalty imposed on the accused who were charged as the intellectual authors… and the intermediary who hired the hitmen and made the respective collection for doing the job… In this sense, it is incompatible to state that the conduct of one of the material perpetrators of the act is less reprehensible to justify the application of the prosecutorial discretion criterion and, on the other hand, to sanction all the other accused with the same penalty, avoiding all prior reasoning about the reprehensibility of the conduct, according to the hierarchical structure of the criminal organization and the functions assigned to each member. This contradiction in the judges’ reasoning violates the logicality and legality of the judgment, because it is not possible to admit that one conduct is less harmful than another and the sanction be applied to all equally. Nor is it acceptable that one argument be used to legalize an agreement and another, totally opposite one, be used to impose such a high prison sentence, when the act judged in both cases is identical. Finally, since the entirety of the judgment on the merits was based on the version provided by the crown witness, through a prosecutorial discretion criterion that fails to meet the legally established requirements for its propriety, judgment number 92-2013, handed down at eleven hours on February twenty-fifth, two thousand thirteen, by the Criminal Trial Court of the Third Judicial Circuit of San José and the trial that preceded it are annulled; as well as decision number 2013-1448, at eleven hours three minutes on July fifth, two thousand thirteen, issued by the Appellate Court of the Criminal Sentence of the Second Judicial Circuit of San José, which confirmed the judgment on the merits. It is ordered that this matter be remanded as soon as possible to the Court of origin, so that with a new panel, the retrial be held…”. The preceding citation is extensive but essential to gauge the scope of judicial review which, according to the cassation body, must be performed regarding the issue of reproach, and which supports this Chamber’s thesis. We are talking about judgments where there has been no hesitation whatsoever in examining the point, where it is recognized expressly and implicitly that this analysis can be repeated at different stages of the process, and above all, where the thesis of the lower court (a quo) is discarded, in the sense that this particular requirement contemplated by subsection b) of Article 22 of the Criminal Procedure Code (Código Procesal Penal, C.P.P.), at any stage of the procedure, is exempt from judicial review. It is also important to refer to what the Constitutional Chamber (Sala Constitucional) stated regarding this point. According to the first-instance judges, the constitutional court, through binding jurisprudence, prohibited the judge from controlling whether the collaborator’s conduct is less reprehensible than the criminal acts attributed to other accused. Such an affirmation is not accurate. In decision Nº 12090, at 14:40 hours on July 31, 2009, the Constitutional Chamber ruled on an unconstitutionality action filed by [Nombre01 033] against Articles 22 and 23 of the Criminal Procedure Code. The action was rejected on the merits, and regarding the matter relevant here, it stated: “On the other hand, the final part of Article 22 is clear in indicating that the request for the application of a prosecutorial discretion criterion must be presented to the court, which is the entity that ultimately decides, exercising the due legality review. It is not true, then, as stated by the petitioner, that there is no review by the judge of guarantees. That review cannot be understood, in any way, in the sense that the judge can replace the prosecutors’ decisions related to the criminal-political opportunity and advisability of initiating or continuing criminal prosecution. As will be analyzed, the judicial review must be limited to the legal requirements, but it cannot evaluate aspects that are inherent to the exercise of the prosecution function. To achieve the objectives pursued by the principle of opportunity, it must be administered by the body in charge of state criminal prosecution. It must be added that the fact that the right to appeal the decision approving the application of a prosecutorial discretion criterion is not provided for those appearing as accused in the same case does not violate due process or the right to defense, given that the testimony given by the person to whom a prosecutorial discretion criterion has been applied will be evaluated by the court, which must provide reasoning for the credibility it does or does not grant, in relation to the rest of the evidence, and furthermore, it may be extensively questioned by the parties in the debate. Likewise, the accused has the right to challenge the judgment if they believe there are defects in the reasoning of the decision or in the introduction or evaluation of the evidence...”. Further on, in that same decision, it was also affirmed: “VII. On the principle of judicial independence. The petitioner indicates that the questioned norms infringe upon the principle of judicial independence, because the Public Prosecutor’s Office subordinates the judge who truly disappears from the criminal scene and is reduced to fulfilling a merely formal task, which injures their independence, weakening the protection of the rights of the other accused, especially the right to defense, to a fair trial, and to due process with all guarantees.- In relation to this aspect, it must be recognized that the Public Prosecutor’s Office must be the axis of any markedly adversarial system. In the application of prosecutorial discretion criteria, it is the prosecuting body that must decide the advisability and necessity of its application, having been attributed the competence to design criminal prosecution policies, exercise criminal action, and carry out the preparatory investigation. According to what the legislator provided, the judge must exercise a legality review over the application of such measures, but not over the advisability and opportunity. Such a division of functions, far from violating the principle of judicial independence, rather strengthens it, given that the jurisdictional function must be restricted to controlling respect for the rights and guarantees of the parties and not to deciding on the accusation. On this topic, the Chamber ruled in judgment 2662-01 at 15:30 hrs. on 4-4-01, where a judicial consultation was resolved regarding the constitutionality of the deputy prosecutor’s decision compelling the judge to admit the application of a prosecutorial discretion criterion due to the insignificance of the act and to order the definitive dismissal (sobreseimiento definitivo). Regarding what is relevant, it was noted: “Consequently, it corresponds to the Prosecutor to decide regarding the advisability of applying or not a prosecutorial discretion criterion. The parties may request its application, within the five-day period provided by Article 316 of the Criminal Procedure Code. However, the court of the intermediate procedure cannot accept that request without the approval of the Public Prosecutor’s Office, which, as stated, must have the approval of the hierarchical superior. It constitutes a duty and attribution of the Prosecutor General to establish the general policy of the Public Prosecutor’s Office and the criteria for the exercise of criminal action (Article 25 subsection a) of the Organic Law of the Public Prosecutor’s Office). Consequently, in accordance with that structure, the analysis that the court must conduct to authorize the application of a prosecutorial discretion criterion must be limited to verifying compliance with the formal requirements established by the legislator. The judge’s authorization excludes conducting an analysis of the advisability or opportunity of the measure, given that they cannot substitute the Prosecutor’s decision, as the Prosecutor is responsible for the exercise of criminal action; it is to them that the responsibility is attributed, as the opposite would denature –within the system opted for (the adversarial one)– the judging function that corresponds to them, they must wait to be duly prompted by the requesting body to act. In the case of Article 22 subsection a), corresponding to the criterion of insignificance of the act, whose application gives rise to this consultation, the judge must verify that the act was not committed by a public official in the exercise of their duties or on occasion of them. The determination of whether it is an act that affects the public interest or not corresponds to the Prosecutor because it is an evaluative criterion that has to do with the exercise of the State’s criminal policy, to be weighed in each specific case by the representation of the Public Prosecutor’s Office. The foregoing, because it is a clear fact that in all public prosecution crimes, the affectation of a public interest is at stake, hence society at one time considered it necessary to classify them as such. It is the Public Prosecutor’s Office –it is reiterated– that must make the judgment regarding the advisability, usefulness, and necessity of criminal prosecution in each specific case.” …It is clear then that it is the Public Prosecutor’s Office and not the judge who is responsible for deciding on the advisability or opportunity of applying the criteria provided in Article twenty-two of the criminal procedure code. This decision is an expression of the prosecutorial power and responds to a prosecution policy attributed exclusively to the prosecuting body. However, the legislator established a legality review that the judge must exercise regarding compliance with the requirements contained in the very object of the challenged norm. It is not a decision lacking judicial evaluation, although in some eminently adversarial systems, such a review is not required, without it having been considered that such liberality violates fundamental rights.” (The underlining is not from the original). For those who subscribe to this decision, the preceding precedent cannot be interpreted in the manner set forth in the majority vote. In the first place, the Constitutional Chamber did not state that jurisdictional review should be circumscribed to part of the requirements provided in Article 22 subsection b) of the Criminal Procedure Code. Quite the contrary. It affirmed that in our country, unlike what happens in other latitudes (where a model has been adopted according to which the principle of opportunity is the rule and the decisions adopted by the Public Prosecutor’s Office are not subject to judicial evaluation), the judge is the one called to determine if the requirements contemplated in the legal system are met. This, the Constitutional Chamber indicates, does not empower the judge to assume tasks that do not correspond to them, for example, to assess the advisability or opportunity of waiving criminal prosecution in a specific case. And indeed, the decision to pursue or not a specific conduct is the responsibility of the Public Prosecutor’s Office; however, this does not mean that in that scope it has maximum discretion. Its decisions are subject to the law –since it can only waive criminal prosecution and promise advantages in the terms indicated by it, cf. Arts. 22 and 96 C.P.P.–, it being the task of the jurisdictional body, also by express provision of the legislator, to guarantee respect for the legal system. It is important to add that although the Constitutional Chamber stated that there are assessments that only the Public Prosecutor’s Office can make (e.g., establishing that in a particular case the affectation of the public interest was insignificant in the terms indicated by Art. 22 subsection a) of the C.P.P., cf. judgment Nº 2662-01 mentioned in Nº 12090-2009 reproduced above), this does not allow interpreting that, in the case of subsection b) of numeral 22 –that is, another scenario– the Public Prosecutor’s Office can determine without any jurisdictional review that the collaborator’s conduct is less reprehensible than other punishable acts, or to affirm, as the court of merit does, that this position is the one assumed by the highest constitutional court of our country, leaving aside that the only thing it has expressly indicated is that the advisability of applying or not the mentioned legal mechanism is the responsibility of the requesting body, a position shared without reservation, since indeed, only the Public Prosecutor’s Office can decide if it is advisable to waive the criminal prosecution of an accused in a particular case, in exchange for their collaboration. The foregoing, it is insisted, does not mean that it can negotiate with any accused in any case, or negotiate any benefit, to the extent that its request, to be accepted, depends on verifying compliance with the requirements defined by the CPolitical Constitution (Constitución Política). Obviously, neither the criminal judge, nor the trial court, nor the bodies hearing the matter on appeal, will assess the opportunity of the Public Prosecutor’s Office’s decision (based on its prosecutorial policy), but they must corroborate, because the legal system so provides, the strict compliance with its (legal and constitutional) requirements, which is something different. Similarly, it will be the Public Prosecutor’s Office that must assume the consequences of deciding in that area incorrectly, for if it negotiates with an accused whose statement, besides being essential, is implausible, the outcome of the process is likely not the desired one, just as if it negotiates with an accused who bears a greater reproach, it is also plausible that at any procedural stage and given the protests of the parties, the negotiation be considered illegal. In summary, based on the same precedents cited by the lower court (a quo) and in which the importance of legality as a governing principle of the actions of any public body is underlined, this chamber concludes that the court, regardless of the stage the proceeding is at, is obliged to verify that all the requirements contemplated in Article 22 of the Criminal Procedure Code are met, therefore including what is related to the lesser reproach that must correspond to the conduct of the collaborating accused whose prosecution is waived. For the judge to assess this point, the criminal prosecution policies designed by the Public Prosecutor’s Office are inconsequential, which do become relevant for the purpose of establishing, for example, the cases and accused in relation to which that body requests the application of a specific criterion, a matter in which it certainly has a considerable margin of freedom. In this same line of thought, it is also not superfluous to insist that decision Nº 2662-2001, mentioned in turn in Nº 12090-2009 of the Constitutional Chamber, ruled on subsection a) of Article 22 C.P.P. and not on subsection b), which is the one relevant to us here. In addition to this, there are other decisions of the referred Chamber, e.g., Nº 2002-06808, at 14:46 hours on July 10, 2002, where in a majority vote, and indeed referring to what is stated in subsection b) of numeral 22, the review carried out by the trial court on the legality of a prosecutorial discretion criterion is highlighted: “The appellant’s disagreement lies in the fact that the protected party… signed an agreement with the Public Prosecutor’s Office for the application of the regulated principle of opportunity, under the scenario established in Article 22 subsection b) of the Criminal Procedure Code, and after offering a statement of great utility to reach the truth of the investigated acts, the respondent court revoked the agreement, leaving the accused in total defenselessness. In this regard, the first thing this Chamber must clarify is that the Criminal Procedure Code itself clearly distributed the competences regarding the application of the regulated principle of opportunity, leaving in the hands of the Public Prosecutor’s Office the analysis of the advisability and opportunity of refraining from exercising the punitive claim in the cases provided in Article 22; likewise, it leaves to the criminal courts the legality review of the use of said instrument, given the seriousness that its application contrary to Law would imply. In the specific case of subsections b) and f) of the already cited Article 22, the effects of the agreement signed by the Public Prosecutor’s Office with the accused person are merely provisional, and become final only when the Trial Court definitively determines whether it is appropriate –in accordance with the parameters provided in the Law– to waive criminal action against that person. That is, it is clear that the mere signing of an agreement between the Public Prosecutor’s Office and the accused in a criminal case, with the latter committing to provide useful information in the investigation, does not in itself confer the right to obtain a dismissal decision (sobreseimiento) in that process, but rather the final decision in this matter ultimately rests with the judge… In the present case, it is obvious that the protected party could not demand that the Trial Court apply, without a prior legality judgment, the agreement she signed with the Public Prosecutor’s Office. This being the case, the action of the respondent court, reviewing whether the agreement in question met the requirements of Article 22 subsection b), is not illegitimate, but rather in accordance with its competences, as explained in the previous paragraph…”, a vote that supports what this sentence appellate court stated, and which the trial court disregards, relying solely on the dissenting vote signed by Justice Fernando Cruz Castro, which furthermore, and for the avoidance of doubt, also does not call our conclusions into question. Note that Judge Cruz Castro does not deny that the trial court could or should verify compliance with the requirements contemplated in Article 22 subsection b) of the C.P.P. What he questions is that the court took measures against the liberty of a person (the collaborator) against whom an accusation delineating their criminal responsibility had not been formulated. Said dissenting vote states: “… The intervention of the trial court against a decision adopted by the Prosecutor’s Office, rejecting an agreement between the defendant and the representative of the Public Prosecutor’s Office, decreeing, at the same time, the detention of a person against whom no accusation had been formulated, constitutes an improper intervention that denatures the jurisdictional function, because a requirement that ensures the impartiality of the judge is their dissociation from the requesting power. This separation ensures the effective validity of the judge’s impartiality, which is one of the most important organic guarantees that define the jurisdictional function. Without the prosecuting body having defined the issue, the trial court judges outlined a possible responsibility of the plaintiff, anticipating a judgment, without criminal action having been exercised. The Court rejects the agreement and the application of the principle of opportunity, but in decreeing detention and ruling on the possible responsibility of a witness against whom criminal action had not been exercised, it improperly assumes the functions that correspond to the prosecuting body. A citizen’s freedom is not satisfactorily protected if the judge assumes repressive and judging powers, without the requesting body having formulated the accusation. The possible criminal responsibility of the respondent in a process in which the prosecuting entity had not exercised the accusation constitutes an excess that violates the balance of powers and the clear differentiation of actors and powers that governs the criminal process. The possible criminal responsibility that a witness who testifies in that condition and against whom criminal action has not been exercised may have is an irrelevant issue that does not justify an anticipated judgment like the one the trial court exercised, because no person who testifies under oath or without it can provide legitimate proof that self-incriminates them. In safeguarding such a possibility, legally inadmissible and whose consequences must be resolved in another process, prior exercise of the requesting action, the court cannot interfere in the judging of an act that has not been submitted for its knowledge. Nor was the possible departure from the country of the witness-accused relevant, because this issue is a responsibility of the Public Prosecutor’s Office, especially regarding a citizen against whom the competent body had not exercised its requesting power.” Nor was it a flagrant crime, and for this reason they could not decree the immediate detention of the claimant, as was done at the trial hearing. To affirm that the witness was not detained because she was placed at the disposal of the competent authorities is a fallacious argument intended to conceal an action in which jurisdictional power exceeds its limits, blurring the difference between accusation and judgment, thereby violating the impartiality of the jurisdiction. As established by the Criminal Procedure Code, the court may reject the agreement but cannot base such a determination on speculation about the possible liability of the crown witness; rather, it must do so in a judgment, in accordance with the requirements set forth in Article 23 of the CPP. The Judge cannot anticipate the outcome of the accusation, and even less so when it concerns the trial court itself, as it is not possible for it to make a determination on the possible authorship attributable to the crown witness when it has not yet ruled on the accusation that excludes the collaborator and mentions other actors and possible co-perpetrators of the act. The problem in this case is not that the agreement ensures the dismissal of the claimant, which would not be a legally admissible claim, but that the court imposed a limitation on the liberty of... without having the legitimacy that such a decision requires, since the competent body had not exercised its charging power. Although the Public Prosecutor's Office had not previously requested the legality review corresponding to the court of the intermediate stage (see last paragraph of Article 22 of the CPP), such omission does not authorize the trial court to reject the criterion of opportunity based on a series of assessments and speculations about the result of an action that the Public Prosecutor's Office has not exercised. The rejection of the criterion of opportunity provided for in subsection b) of Article 22 of the CPP must be based on the description and evidence of the main accusation, but it is not acceptable, as occurred in the present case, for the rejection to be based on an advance assessment of the evidence, as well as on an interpretation of the facts not contained in the accusation. The rejection of the agreement cannot be based on a factual and legal determination that does not emerge from the accusation and the agreement; it is for this reason that Article 23 of the CPP suspends the extinction of the criminal action, authorizing it only after the trial has been held, which is the opportunity when the court, in the full exercise of its powers, once the evidence has been received in accordance with the constitutional principles that legitimize its reception and assessment, determines whether the collaboration is legally acceptable, defining two points: a) whether the person’s action in the criminal activity is less reprehensible than the one they facilitated resolving, and secondly; b) whether the collaboration provided by the collaborating witness was decisive. The evaluation of these parameters cannot be made before the trial takes place, as the trial court did, constructing an accusatory hypothesis over which it had no intervention, as the Criminal Procedure Code correctly defines, by acknowledging, as appropriate, that the eventual liability of the crown witness must be resolved only after the trial has been held (see second paragraph of Article 23 of the CPP). Given the non-compliance with the provisions set forth in the Code of Criminal Procedure (last paragraph of Article 22 and Article 24 of the CPP), the court could well have rejected the agreement surprisingly presented by the Public Prosecutor's Office, but without ruling on the content of the agreement and the possible participation of the claimant. Nor could the court, as stated, decree the detention of a person who was not a flagrant offender and against whom the Public Prosecutor's Office had not exercised criminal action. The admissibility or legality of the criterion of opportunity applied by the Public Prosecutor's Office does not authorize the Court to exercise the powers that correspond to the accusation. By virtue of the arguments that have been presented, the undersigned of this dissenting vote believes that although the surprising presentation made by the Public Prosecutor's Office of the agreement with the claimant injures the principles of loyalty and due process, such error does not authorize the trial court to exercise powers that belong to the accusing body, ruling on the possible criminal liability of a person against whom no accusation has been formulated, and decreeing, based on such determination, the illegitimate detention of the claimant ...". As observed, this dissenting vote does not deny the possibility that the trial court controls compliance with all the requirements set forth in Article 22, subsection b) of the CPP. On the contrary, this option is admitted, on the understanding that this must be done once the evidence has been presented during the trial. For all the foregoing reasons, this chamber concludes that jurisdictional control over the appropriateness of the criterion of opportunity must exist, verifying compliance with the legal requirements -without distinctions, as the law does not distinguish in this regard- that the procedural code demands for its application. It is not a matter of supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, criminal prosecution should be waived (since certainly, no one disputes that determining the appropriateness of the measure in a specific case is the purview of the requesting body), but rather of ensuring that said body's action—understood as the application to a specific case—conforms to the legal system. Finally, the fact that the criterion of opportunity must be processed in a separate file is not, as the trial court indicates, an argument that exempts it from its duty to control compliance with the requirements that gave rise to its application, since while it is true that the statement of the collaborating accused takes place in the trial, whereby the evidence is produced at that moment and not before, it cannot be ignored that said statement has its reason for being in the aforementioned criterion. If this had not been negotiated, the collaborator would not render testimony, and to that extent, we cannot exclude that procedure from judicial control. As correctly indicated in the dissenting vote signed by Judge Camacho Morales, the promise of impunity, the promise to waive criminal prosecution, whether total or partial, is what moves the collaborator's will, and for that reason, it is necessary to corroborate whether that promise conforms or not to the regulations. This, logically, must take place in the main proceeding, as it is in this proceeding where the criminal prosecution of the collaborator is waived and the punishable conducts are accused which, in light of Article 22, subsection b), must be more reprehensible than those that cease to be of interest to the Public Prosecutor's Office. The fact that the criterion of opportunity was accepted by a criminal judge is not an obstacle for the matter to be heard by the trial court, since in our criminal procedure, the parties may repeatedly protest defects that cause them harm, whether absolute or relative when they have not been validated. That said, we also have that in the appealed judgment, some additional reasons are set forth to support the refusal to rule on the criterion, which it is advisable to examine carefully. The first is that the proceeding in which the criterion of opportunity was processed is independent of this one. As already noted, this ignores the fact that the statement of [Name01 064] had to be rendered in this cause; that the criterion of opportunity takes place because, at least in principle, the conduct of [Name01 064] is less reprehensible than that attributed to other defendants, and finally, that it will be based on what is decided in this matter that it will be determined whether the expectations for which the exercise of criminal action was suspended have been satisfied. That is, even if it is admitted that the criterion of opportunity is processed in a separate certified record that is independent of the main file, and that the account of [Name01 064] contained therein does not have to be disclosed to those listed as defendants in this matter (thus, resolutions No. 4142 of 2:51 p.m. on June 2, 1999, and No. 1119 of 11:09 a.m. on February 4, 2005, both from the Constitutional Chamber), the legality of the procedure (compliance with requirements contemplated by the CPP) is part of the issues that the trial court can and must control (whether because the parties request it, or because it understands it must do so ex officio), just as it happens with other procedural acts that take place in preceding stages and through which the door is opened for a specific piece of evidence to be produced or incorporated in the trial (e.g., the resolution ordering an advance jurisdictional proof). Furthermore, the trial court incurs contradictions, since if, with the argument that the criterion of opportunity was processed in an independent proceeding, it refused to review the requirements that it—erroneously—classified as substantial (namely, the lesser reproach to the collaborator), it would also lack competence to verify compliance with those it called formal (namely, an express request from the prosecutor's office with the endorsement of the hierarchical superior and jurisdictional approval), yet it did the latter. To the above, we must add an additional inconsistency: namely, despite the fact that the trial judges agreed to examine procedural issues, they omitted to resolve the complaints raised by the defense counsel for [Name01 033] and [Name01 041] regarding the lack of reasoning of the resolution issued by the criminal judge (cf. folios 13,676 recto and verso, 13,677 verso, volume XXVIII), this despite the fact that the referred defect is clearly one of form. As a second argument, the professionals signing the majority vote maintain that regarding the criterion of opportunity, the decision can only be challenged through an appeal against the final dismissal that may eventually be issued in the proceeding where the application of that legal institute is processed. Such a position, evidently, renders nugatory the right of defense of the accused in the main proceeding who are harmed by the collaborator's statement, especially considering they are not parties to that procedure (in fact, the a quo itself acknowledges this). Moreover, the final dismissal would occur, according to Article 23 of the Criminal Procedure Code, once the ruling—understood as the one issued by the trial court in this matter—has become final, at which point the position of the justiciables, convicted by then, would be consolidated. That is, we are faced with the absurdity that the procedure to apply a criterion of opportunity to a collaborating defendant, even in cases where it is openly illegal, would be exempt from all control, since according to the thesis of the a quo, the so-called substantial requirements can never be assessed by the judge, and because, simply, those aggrieved by the decision to apply the criterion cannot challenge it in any proceeding (neither in this one being pursued against them, nor in the one where the criterion is processed, as they are not parties), which would imply a flagrant violation of Article 42 of the Political Constitution. As a third argument, the majority vote maintains that analyzing the issue would imply advancing a criterion. This is also unacceptable, since it is one thing to compare the reproaches based on the information provided by the requesting body when requesting the criterion of opportunity, and quite another to issue a ruling on whether those conducts actually occurred or not, the latter being what would compromise the impartiality of the trial court. In any case, the option remained to defer the resolution of the matter for judgment, as expressly indicated by Article 342 of the Criminal Procedure Code and as stated by Magistrate Cruz Castro in the dissenting vote invoked by the judges. For all the foregoing reasons, this chamber concludes that the application of the criterion of opportunity contemplated in Article 22, subsection b) of the CPP is subject to jurisdictional control, and that therefore the court, be it the criminal judge, the trial court, and even the sentence appeal and cassation bodies, when appropriate, must verify compliance with all the requirements that the legislator demands for such purposes. It is not a matter of supplanting the prosecutor in the selection of cases in which, for reasons of criminal policy, they consider that criminal prosecution should be waived, but rather of ensuring that in those selected by the requesting body, the formalities required by the legal system for such purposes are met.

**2) Examination of the criterion of opportunity granted to [Name01 064]. Defects present in its procedure and in the resolution that authorized it.** As already explained, this court does not share the criterion of the *a quo* in the sense that it was not competent to assess the appropriateness of the criterion of opportunity, and in particular, to verify whether the conducts whose criminal prosecution was waived were less reprehensible than those whose prosecution was facilitated. Because of this, and since some parties have also complained of the defect at this procedural stage, we proceed to conduct the aforementioned examination at this time, **concluding that the application of the cited legal institute for the benefit of [Name01 064] is illegal.** The resolution accepting the application of the criterion of opportunity was issued by the Criminal Court of the Second Judicial Circuit of San José, at 9:51 a.m. on June 1, 2007 (cf. folios 41 to 89 recto, of the file called *"File for request of the criterion of opportunity"*). Regarding this, the first thing to point out is that **it is a resolution devoid of reasoning**. The criminal judge who resolved the matter, in addition to transcribing the 116 points cited by the Public Prosecutor's Office in its request, accepted it by pointing out a series of points that can be summarized as follows: ***i)*** Alongside official criminal prosecution, derived from the principle of legality, the law also authorizes the Public Prosecutor's Office to waive it in certain cases regulated by the law itself and for *"convenience of the criminal policy of the current system"* (f. 83 recto of the cited file); ***ii)*** defining criminal policy and waiving criminal action are discretionary powers that cannot be controlled by the judge: *"In this investigation, the Prosecutors make use of that power and request in favor of the defendant [Name01 064], the application of the criterion of opportunity under the premise of subsection b) of the aforementioned Article 22 of the CPP, the request being heard, and emphasis is placed on the discretionary powers that cannot be controlled by the judge, so that for reasons of procedural economy, and as it is ultimately the Public Prosecutor's Office that determines whether to exercise criminal action or waive its exercise in the specific case"* (sic, f. 83 mentioned); ***iii)*** the request has the approval of the hierarchical superior; ***iv)*** after citing Articles 22, subsection b) and 23 of the Criminal Procedure Code, the criminal judge affirms that the application of the criterion is appropriate. At this point, she transcribes what was indicated in the request formulated by the Public Prosecutor's Office (f. 85 to 87 recto) and, closing the textual quote, affirms: *"As stated by the prosecutors (sic), the weighty reason motivating this petition by the Public Prosecutor's Office is based on the premise that this is a complex proceeding matter, in which the defendant [Name01 064] provided a written statement for the purposes of the criterion of opportunity, committing to render testimony, at the trial stage or in any oral hearing, where he would provide or ratify all truthful, useful, and pertinent information for the clarification of the acts investigated against the defendants [Name01 041], [Name01 078], [Name01 046], and [Name01 033]. The same request indicates that the conduct attributed to the defendant [Name02 064] is less reprehensible than that of the defendant [Name01 033]. On the other hand, note that the Prosecutor files the request before formulating the accusation, in writing, before the Judge of the Intermediate Stage, and as indicated above with the authorization of the hierarchical superior, which are the formal aspects whose compliance the judge must verify, and to which the control of legality to be carried out is ultimately limited. Consequently, in these terms, the request is accepted..."* (F. 87 recto, the emphasis is not in the original). As observed, **there is no ruling on whether the conducts attributed to [Name01 064] were or were not less reprehensible than those attributed to [Name02 041], [Name01 078], [Name01 046], and [Name01 033], accused whose intervention in the facts, as stated in the request for application of the criterion of opportunity, was what was intended to be proven through the testimony that [Name02 064] would give at the trial** (cf. folio 28 recto of the file in question, as well as folio 1, point 1.- of the file called “Agreement between the prosecutor’s office and [Name 064] for the application of the criterion of opportunity”, evidence No. 776). We are faced with a *resolution lacking reasoning* and, therefore, ineffective, either because the criminal judge simply did not set forth her reasoning regarding the issue of the reproach attributable to the collaborator, or because she decided not to do so under the belief that such an aspect is outside jurisdictional control. In fact, this seems to emerge from the resolution (cf. the last lines reproduced), a position that, as stated *supra*, is erroneous. Added to this, the previously stated conclusion—namely, that the resolution presents a defect of lack of reasoning—does not vary even if we hypothetically assume that the jurisdictional body, by transcribing some extracts of what the Public Prosecutor's Office stated, adopted them as its own (and the hypothetical nature of the situation is underlined). The foregoing is because the request formulated by the requesting body also presents the same defect. As can be gleaned from its reading, **despite the fact that the Public Prosecutor's Office sought the application of a criterion of opportunity in favor of [Name01 064] to facilitate the prosecution of [Name01 041], [Name01 078], [Name01 046], and [Name01 033], in its request it did not dedicate a single line to explaining why the conducts of [Name 064], whose criminal prosecution was intended to be waived, were less reprehensible than those of the defendants [Name01 041], [Name01 078], and [Name01 046].** Consequently, nor did the resolution that authorized its application do so, and which, as already stated, limited itself to transcribing what was said by the requesting body. In the case of [Name02 033], the situation is no less serious, since on the point in question—the reproach—it only states that the conduct of [Name01 064] is less reprehensible than that of [Name01 033] because the latter was [...] country and the former a member of a board of directors of an autonomous institution; because [Name01 033] was the one who appointed the majority of [...] of the cited board and had influence over the actions of those institutions, and because [Name01 064] was also an advisor to the presidential house, whereby he owed obedience to [Name01 033]. From the foregoing, the Public Prosecutor's Office indicated, *“… the enormous power that [Name01 033] held over 'the institutional direction and actions,' as well as on a personal level, over [Name01 064]”* (f. 30 recto of the file). **That is, if we adhere to the request, which it bears repeating, was not weighed by the criminal judge but only reproduced in her resolution** (f. 86 to 87 recto), **the only argument offered to sustain that the conduct attributed to [Name01 033] was more reprehensible than those carried out by [Name01 064] relates to the position held by the former, leaving aside any consideration of the conducts actually attributed to [Name01 064] and to [Name01 033].** As if all the foregoing were not enough to understand that the resolution that authorized the criterion of opportunity is ineffective, there is a defect of greater significance that renders the decision illegal. And it is that, as was denounced during the trial stage and now, in the sentence appeal phase, **it is extracted from the case file that the criminal judge who applied the criterion of opportunity did not have all the information necessary to decide.** In reality, the conducts that can be attributed to [Name01 064] and whose criminal prosecution was waived were more than those referred to by the Public Prosecutor's Office when requesting the criterion of opportunity. From the very statements that [Name01 064] had made up to that point before the Public Prosecutor's Office, in which he narrated conducts unrelated to those investigated here and that can also be considered criminal, as well as from expert report 297-DEF (evidence No. 598) and case file No. 08-000032-0615-PE, pursued against [Name08] for the alleged crime of breach of duties (and which was admitted as evidence at this procedural stage), it is clear that, in addition to what is related to the contracting of the 400,000 lines, at the time the criterion was negotiated there were sufficient elements to suspect that [Name01 064] had received various other “prizes or royalties.” Specifically, $110,207.00 and $29,833.95 from [Name01 083] and [Name 085] (thus, expert report No. 297-DEF-540-04/05, folio 38 of the report); an economic retribution calculated at $56,000.00 by reason of what was decided on the La Joya power generation project (cf. investigative statement of [Name01 064] rendered at 4:15 p.m. on September 30, 2004, f. 132 recto of volume I; complaint filed by [Name01 033], f. 19 recto of case file No. 08-000032-06154-PE and note published in the national news section, in La Nación.com, on Saturday, October 2, 2004, titled “[Name01 064] admits another 'prize' as a director of ICE”, visible at folios 256 to 258 recto of the aforementioned case file No. 08-000032-06154-PE). [Name01 064] also described some advantages of economic content received on his trips to Prague and Switzerland (cf. investigative statement of September 30, 2004, and complaint of [Name01 033], f. 20 recto of case file No. 08-000032-06154-PE). Finally, in the complaint filed by [Name01 033], it was mentioned that [Name01 064] received significant sums of money from [Name01 091] related to contracts other than cellular telephony, as well as a trip to Brazil paid for by that company [cf., folio 19 of the cited case file No. 08-000032-06154-PE and f. 1771 of volume V (this regarding the trip to Brazil)]. Now, **in that same proceeding—the one pursued against [Name08]—, Prosecutor Maribel Bustillo Piedra clearly admitted that, with the exception of the royalties enjoyed in Prague and Switzerland, the facts which according to [Name01 033] had not been investigated (that is, everything related to the monies that [Name01 046] transferred to [Name01 064]; to the funds from [Name01 060] associated with contracts No. 424 H 39552, 424 [Name21] 44031, and 424 H 39562; to the trip to Brazil, and to the economic retributions related to La Joya and [Name01 083]-[Name01 270]) had not been the object of criminal prosecution because they were covered by the criterion of opportunity.** Specifically, Ms. Bustillo Piedra requested the dismissal of the complaint filed by the defendant [Name01 033] against the then Attorney General of the Republic, with the following arguments: *“DISMISSAL OF COMPLAINT IS REQUESTED. The undersigned, MARIBEL BUSTILLO PIEDRA, Prosecutor of the Miscellaneous Crimes Unit… requests the Dismissal of these proceedings, based on the following: STATEMENT OF FACTS. A. Mr. [Name01 033], in his capacity as complainant, states that on the occasion of Investigation No.

04-006835-647-PE where [Nombre01 064] appears as the accused (whose exercise of criminal prosecution is suspended due to the application of the Criterio de Oportunidad), he acknowledged not only having participated in acts of corruption for the benefit of the company [Nombre02 091] <span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">referring to the award and contracting of four hundred thousand mobile phone lines, but also acknowledged having carried out another series of criminal acts, even supported by documentation contained in the main file, for example, the reports of the Economic and Financial Crimes Section of the Organismo de Investigación Judicial, acts which, in his opinion, were not investigated by the Ministerio Público.</span> The criminal acts referred to by the complainant and which he indicates have not been the subject of investigation by the Ministerio Público against [Nombre01 064] <span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">refer to:</span> - <span style="font-family:Arial; font-style:italic">Monies improperly received from the company [Nombre 091] on the occasion of: the purchase of fixed-line switches for the “ICE-Switching program 2000-2001,” the purchase for expansion of telephone switches made by ICE on May 23, 2002, and an ICE expansion program ($325,253.32).</span> - <span style="font-family:Arial; font-style:italic">Monies improperly received from [Nombre01 280] for the approval of the “La Joya” hydroelectric project concession ($56,000.00).</span> - <span style="font-family:Arial; font-style:italic">Monies improperly received from [Nombre01 046] for payments made to him by the company [Nombre 091] for “various reasons” ($62,562.50).</span> - <span style="font-family:Arial; font-style:italic">Monies improperly received from the company [Nombre01 270]-[Nombre01 083] for a contract awarded ($110,207.00).</span> - <span style="font-family:Arial; font-style:italic">Cost of first-class tickets for the San José-Río de Janeiro, Río de Janeiro-Sao Paulo, Sao Paulo-San José trip by the company [Nombre 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">($5,617.00).</span> B. On the other hand, the complainant [Nombre01 033] points out that [Nombre01 064] also acknowledged in his investigatory statement having received gifts as an ICE Director, on a trip taken to Prague and Switzerland, facts which he indicates have not been investigated by the Ministerio Público in a premeditated manner to illegally protect him.

II.-On the merits of the matter.

After a detailed study of these proceedings, the undersigned considers… that in this instance, the dismissal of these proceedings is pertinent, as the facts reported by Mr. [Nombre01 033] <span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">do not constitute a crime. </span> A. The complainant himself in his writing… offers the answer as to why the aforementioned facts have not, for the moment, been subject to criminal prosecution, by indicating…:

<span>&#xa0;</span> <span style="font-family:Arial; font-style:italic; text-decoration:underline">“…these facts have not only been proven by his confession (that of [Nombre01 064]) but also by expert evidence, and yet, due to the evident negotiation agreement existing between [Nombre01 064] and Fiscal Nombre08…, they have not, to date, been the subject of any type of investigation or criminal charge against the confessed criminal [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">…” Precisely. The Ministerio Público has agreed with the accused [Nombre02 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">on the application of the mechanism called Criterio de Oportunidad, and in this regard, a formal agreement has been signed, and therefore, at least for the moment, he is not subject to criminal prosecution</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. It is fitting at this time to make some clarifying considerations… The aforementioned Criterio de Oportunidad was not carried out between [Nombre01 064] and the accused Nombre08, but rather between [Nombre01 064], his private defender Edwald Acuña Blanco, and the prosecutors of the Ministerio Público Carlos Morales Chinchilla, Criss Gonzáles Ugalde on January 31, 2006, being authorized by the then Fiscal Adjunto of the Fiscalía de Delitos Económicos, Corrupción y Tributarios, Licenciado Warner Molina Ruiz. On the other hand, the aforementioned facts have been subject to investigation, to the point that, as the complainant indicates, they are contained in several documents that are part of the main file, among them, the police reports of the Economic Crimes Section of the Organismo de Investigación Judicial, but as previously indicated, they form part of the agreement for the application of the mechanism of Article 22… Certainly, the investigation carried out by the Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios of the Ministerio Público is an extremely complex proceeding regarding serious corruption crimes committed in high echelons of those who held political power in our country in the early years of this decade… The conduct of [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">is less reprehensible than that of [Nombre01 033], since in the sphere of public function, when it comes to corruption crimes, the mere condition of being the [...] Nombre05 a greater reproach than any other public official could deserve, regardless of the position they hold…</span> <span style="font-family:Arial; font-style:italic; text-decoration:underline">The Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios of the Ministerio Público analyzes that in this case, all the stated procedural requirements are met and therefore, decides to apply the mechanism with the accused [Nombre01 064], not only for the monies improperly received from the company [Nombre02 091] corresponding to the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand wireless telephone lines with GMS (sic) technology, but also for the other mentioned criminal acts</span><span style="font-family:Arial; font-style:italic">. This is clearly evident from the “Agreement for the application of the criterio de oportunidad” carried out at the Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios on January 31, 2006, which the undersigned representative of the Ministerio Público reviewed and which may be requested from that office by the Judge for their analysis. The agreement, in what is relevant, states:… “Present at the Fiscalía de Delitos Económicos, Corrupción y Tributarios, the accused [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, of legal age… his defender… the Prosecutors… for the purpose of setting the limits regarding the application of a criterio de oportunidad in favor of the accused [Nombre01 064]… it is agreed: 1. The Ministerio Público… undertakes to request in favor of the accused [Nombre01 064], that a total suspension of criminal prosecution be ordered in the above-indicated case, Nombre11 and provided that the statement he undertakes to give in this case is not disproven by other evidentiary elements that make it appear false, whether in whole or in part…” </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">In the mentioned agreement, it can be seen that the Ministerio Público, in the exercise of its legally conferred powers, undertakes to request in favor of [Nombre01 064], the suspension of criminal prosecution, not only for the fact related to the money improperly received from the company [Nombre 091] on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand mobile lines…, but for the entirety of the criminal prosecution in case No. 04-006835-647-PE, which encompasses this and the other facts that the complainant mentions, as they all form part of the investigation with the indicated single number, so much so that the accused was questioned on all those facts</span><span style="font-family:Arial; font-style:italic"> and long before the application of this agreement, on September 30, 2004…B. </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">On the other hand, the complainant [Nombre01 033] states in his writing that in addition to all the commented illicit acts, [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">also confessed, in his first investigatory statement dated September 30, 2004, in case 04-006835-647-PE, to having received gifts received as an ICE Director on a trip taken to Prague and Switzerland, which is being processed in independent case No. 04-004671-647-PE… </span><span style="font-family:Arial; font-style:italic">this case was initiated in the Ministerio Público before case 04-006835-647-PE was initiated, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">it is for this reason that these facts are outside the agreement for the application of the criterio de oportunidad</span><span style="font-family:Arial; font-style:italic"> carried out on January 31, 2006…” </span><span style="font-family:Arial">(cfr., folios 27 to 36 front of file Nº 08-000032-0615-PE, against Nombre08, for breach of duties; highlighting is not from the original). As can be seen, in the same request for dismissal formulated by Licenciada Bustillo Piedra in favor of the then Fiscal General de la República, Mr. Nombre08, the cited professional categorically stated that </span><span style="font-family:Arial; text-decoration:underline">the criterio de oportunidad included not only the facts related to the contracting of the 400 thousand lines, but also the other facts known in case Nº 04-006835-647-PE</span><span style="font-family:Arial"> and which, in principle, she listed in the request for dismissal, clarifying that they were part of the same investigation and that [Nombre01 064] was questioned in relation to them. Of the facts encompassed by the negotiation with the cooperating accused, Licenciada Bustillo Piedra only excluded those related to the trips to Prague and Switzerland, which she said were being investigated in an independent case. </span><span style="font-family:Arial; text-decoration:underline">Now, this tribunal has also undertaken the task of examining both the request for application of the criterio de oportunidad and the resolution that authorized it, determining the following</span><span style="font-family:Arial">: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">a.-</span><span style="font-family:Arial"> the economic rewards delivered by [Nombre01 046] to [Nombre01 064] as recognition for the payment management that the cooperating accused carried out before [Nombre01 091], are indeed contemplated in the negotiation (f. 17 to 18, 65 to 67 front, points identified with numbers 80 to 85, file for request of criterio de oportunidad); </span><span style="font-family:Arial; font-weight:bold; font-style:italic">b.-</span><span style="font-family:Arial"> the funds transferred to [Nombre01 064] and that are related to contracts Nº 424 H 39552, 424 Nombre21 44031 and 424 H 39562 (contracts cited by the complainant [Nombre 033] from folios 6 to 8 front of file Nº 08-000032-0615-PE), are indeed linked to the issue of the 400,000 GSM mobile phone lines, since according to what was stated in the appealed judgment, those contracts were merely fronts used to receive the funds that were subsequently delivered to several public officials on the occasion of the aforementioned issue. In that regard, they are sums that are included within the scope of the criterio de oportunidad (cfr. point 97.- and following, both of the request and of the resolution that authorized the application of the criterion, and which refer to the delivery to [Nombre01 064] of $2,560,253.32 </span><span style="font-family:Arial; text-decoration:underline">on the occasion of the contract for the 400,000 lines</span><span style="font-family:Arial">, folios 20 to 28 and 70 to 82 front of the file). </span><span style="font-family:Arial; font-weight:bold; font-style:italic">c.-</span><span style="font-family:Arial"> Regarding the economic rewards associated with the La Joya project and the companies [Nombre01 083]-[Nombre01 270], Nombre02 as well as the trip to Brazil, there is no reference to them in the agreement for the application of the criterio de oportunidad. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">d.-</span><span style="font-family:Arial"> The acceptance by [Nombre 064] of an economic reward from [Nombre 085] is not mentioned either in the complaint filed by [Nombre 033] (file Nº 08-000032-0615-PE), or in the request for application of the criterion, or in the resolution that authorized it.</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">From everything stated above, several conclusions are drawn</span><span style="font-family:Arial">: </span> <span style="font-family:Arial; font-weight:bold; font-style:italic">1)</span><span style="font-family:Arial"> At the time the criterio de oportunidad was negotiated, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">in this case</span><span style="font-family:Arial"> there were indications to attribute to [Nombre01 064] criminal acts distinct from those related to the contract for the 400,000 GSM mobile lines and that had to do with his receipt of various economic rewards from different persons -individuals and legal entities-, namely: </span><span style="font-family:Arial; font-style:italic">a)</span><span style="font-family:Arial"> sums delivered, apparently, by [Nombre01 280], for the award of the La Joya hydroelectric project; </span><span style="font-family:Arial; font-style:italic">b)</span><span style="font-family:Arial"> sums delivered by the companies [Nombre01 083]-[Nombre01 270]; </span><span style="font-family:Arial; font-style:italic">c)</span><span style="font-family:Arial"> funds transferred by [Nombre02 085]; </span><span style="font-family:Arial; font-style:italic">d)</span><span style="font-family:Arial"> a trip to Brazil paid for by the company [Nombre 091]; and, finally, </span><span style="font-family:Arial; font-style:italic">e)</span><span style="font-family:Arial"> monies delivered by [Nombre01 046], apparently as a reward for having interceded before [Nombre01 091] to have him -[Nombre01 046]- paid what he was owed. </span> <span style="font-family:Arial; font-weight:bold; font-style:italic">2) </span><span style="font-family:Arial">While the rewards mentioned in the cited point e) were indeed contemplated in the request for the criterion and the resolution that authorized it, the economic rewards related to the La Joya hydroelectric project, those from the companies [Nombre02 083]-[Nombre01 270], and the trip to Brazil, for an unknown reason </span><span style="font-family:Arial; text-decoration:underline">were not included,</span><span style="font-family:Arial"> this despite the fact that they were part of the agreement, as acknowledged by Licenciada Bustillo Piedra in file Nº 08-000032-0615-PE.</span> <span style="font-family:Arial; font-weight:bold; font-style:italic">3)</span><span style="font-family:Arial"> Although the gift delivered by the company [Nombre 085] was not contemplated in the request for application of the criterio de oportunidad and was also not mentioned by Licenciada Bustillo Piedra when requesting the dismissal of the case against Mr. Nombre08 (which is understandable, because [Nombre01 033] also did not include it in his complaint), at the time of the negotiation of the criterio de oportunidad there were elements that gave notice of its existence. </span> <span style="font-family:Arial; font-weight:bold; font-style:italic">4)</span><span style="font-family:Arial"> In the case of </span><span style="font-family:Arial; font-style:italic">all</span><span style="font-family:Arial"> those gifts -including the one from [Nombre 085]- the Ministerio Público did not conduct any investigation. </span> <span style="font-family:Arial; font-weight:bold; font-style:italic">5)</span><span style="font-family:Arial"> There is an irreconcilable inconsistency between what was stated by Licenciada Maribel Bustillo Piedra in the referenced file Nº 08-000032-0615-PE and what was indicated both in the request for the criterio de oportunidad and in the resolution that approved it. An inconsistency that can only be explained in two ways: </span><span style="font-family:Arial; font-style:italic">i)</span><span style="font-family:Arial"> Licenciada Bustillo Piedra would have been untruthful in file Nº 08-000032-0615-PE when requesting the dismissal of the complaint filed against the then Fiscal General de la República; or </span><span style="font-family:Arial; font-style:italic">ii)</span><span style="font-family:Arial"> Licenciada Bustillo Piedra told the truth and, therefore, one must conclude that although some of the facts that in principle were attributable to [Nombre 064] (the gifts from Bolaños Alpízar, from the companies [Nombre 083]-[Nombre01 270], and the trip to Brazil), despite having been considered when negotiating the criterio de oportunidad, </span><span style="font-family:Arial; text-decoration:underline">for unknown reasons were not contemplated nor included in the request for its application. That is, in relation to those facts, a “de facto” criterio de oportunidad was negotiated, devoid of jurisdictional control</span><span style="font-family:Arial">. </span><span style="font-family:Arial; text-decoration:underline">For the undersigned, of both alternatives, the second is considered reasonable</span><span style="font-family:Arial">, not only because in the request for dismissal formulated by Licenciada Bustillo Piedra she recommended that the jurisdictional authority examine the documents related to the criterion (which demonstrates that she acted with transparency), but because none of the previously mentioned gifts have been the subject of criminal investigation and prosecution. Using this same argument (the absence of investigation and prosecution), it is feasible to conclude that the acceptance by [Nombre01 064] of the gift that was delivered to him by the company [Nombre 085] was also one of the negotiated conducts without complying with the foreseen legal formalities. Although this was not described in the request for dismissal made by Licenciada Bustillo Piedra, nor in the request for application of the criterio de oportunidad or the resolution that approved it, it is a fact that has been dispensed the same treatment as the economic rewards described above and which, according to the fiscal so often mentioned, are included in the criterio de oportunidad. At this point, and regardless of the consequences derived from the above, for this chamber it is necessary to underline the errors that have been committed, not only by the requesting body (which -perhaps through carelessness- omitted to inform the jurisdictional body about some of the facts whose criminal prosecution it dispensed with when negotiating a criterio de oportunidad with [Nombre01 064] ), but also by the criminal judge who decided on the request for dismissal formulated in the cited file Nº 08-000032-0615-PE, since at minimum, to accept this, they should have verified what was stated by Licenciada Bustillo Piedra, just as this same professional asked when formulating the request for dismissal. The simple reading of the request for application of the criterio de oportunidad and the resolution that authorized it would have been enough to conclude that some of the economic rewards received by [Nombre02 064], unrelated to the issue of the 400,000 lines, were not contemplated (at least not formally and expressly) in the negotiation that was carried out in this matter. It is important to note that the procedural defect of interest, meaning, the one that occurred in this process, was also not corrected by the requesting body despite having had that possibility, whether when the accused [Nombre01 033] criminally denounced Mr. Nombre08 for breach of duties on July 1, 2008 (f. 1, file Nº 08-000032-0615-PE), or during the trial, when the issue was questioned by the defense (cfr. folios 13,676 to 13,705 back, volume XXVIII). The majority vote states that the facts submitted to the criterio de oportunidad are solely those related to the award of the 400 thousand mobile phone lines, since only these are included in the factual basis of its request for application and in the resolution that approved it, hence the defenders are not correct in asserting that the criminal judge was deceived to favor [Nombre01 064], guaranteeing him impunity for crimes not included in the proceeding</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial">(f. 16,079 front, volume XXXIII). This criterion is not shared. As already explained, the discrepancy between what was proposed in the request for dismissal formulated in file Nº 08-000032-0615-PE and what was contemplated in the request for application of the criterio de oportunidad in this case is evident, and it is not plausible, in order to establish the scope of the agreement, to rely only on what was indicated in the second, since the Ministerio Público, in addition to being a single entity, was the one that, through one of its representatives, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">admitted and categorically assured</span><span style="font-family:Arial"> that a series of facts that in principle were attributable to the cooperating accused had not been investigated because they were included in the negotiation. Even during the trial, [Nombre01 064], who refused to render a statement on all the already mentioned issues, namely, the economic benefits from [Nombre01 083], [Nombre01 270], [Nombre 085], and the one linked to the project called La Joya (cfr. folios 14,975 and 14,976 front, volume XXXI), also refused to indicate if some of those facts were covered by the criterio de oportunidad (f. 14,995, first line). For the undersigned, the thesis of the majority vote, in the sense that what matters is what is stated in the agreement and not what may have occurred outside of it, would imply admitting that the Ministerio Público can employ a double discourse in negotiation matters, one recorded within the process on the basis of which compliance with the legal requirements for the application of the legal figure is examined, and another outside of jurisdictional control, where one can simply dispense with prosecuting certain facts in exchange for collaboration. This is a position that is inadmissible in constitutional terms, since -as already explained- by reason of the principle of legality that governs our system, the Ministerio Público </span><span style="font-family:Arial; font-style:italic">is obliged</span><span style="font-family:Arial"> to exercise criminal prosecution (acción penal), a duty that can only be excepted in cases exhaustively listed by the legislator and under jurisdictional control. And this control can only be carried out when the requesting body, when requesting the application of a criterio de oportunidad, objectively and transparently contemplates all the facts included in the agreement, without omitting core information. Only Nombre02 can the jurisdictional authority determine if the conduct of the cooperating accused, whose criminal prosecution is being dispensed with, is less reprehensible than that of the accused who are affected by the criterion.</span> This is a matter that takes on greater importance in legal systems such as ours, where the criminal conduct of the cooperating witness whose prosecution is being waived is not necessarily part of the act whose continuation it prevents or whose criminal prosecution it facilitates (thus, Nombre54. “El testigo de la corona”. In: </span><span style="font-family:Arial; font-style:italic">Derecho Procesal Penal Costarricense</span><span style="font-family:Arial">. San José, Asociación de Ciencias Penales de Costa Rica, 2007, pp. 592 and 599. In the same sense, Sala Tercera, resolution No. 2001-0737). And it is that if, through the application of the prosecutorial discretion (criterio de oportunidad), immunity can be guaranteed to the cooperating witness for acts other than those being investigated and resolved with his help (in this case, those related to the 400,000 lines and the gifts that [Nombre01 046] gave him as thanks for his collection efforts before [Nombre02 091]), the importance is notorious that the Public Prosecutor's Office (Ministerio Público), when requesting the application of this legal institute, does not omit any detail about </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">all</span><span style="font-family:Arial"> the conduct that will cease to be investigated and prosecuted, not limiting itself to the description of those whose criminal prosecution is facilitated by the so-called </span><span style="font-family:Arial; font-style:italic">crown witness (testigo de la corona)</span><span style="font-family:Arial">, since it will be on the set of facts that the valuation or comparison of blameworthiness must be made. In summary, if the agreement includes, as happened in this case, conduct of the cooperating witness that is not part of the act under investigation, the request for the application of prosecutorial discretion must include them, since otherwise, the jurisdictional body lacks the necessary information to control whether it is justified to apply the aforementioned legal institute—which has clear utilitarian connotations—to the detriment of the principle of legality and mandatory prosecution. For all of the above, this Chamber understands that, when requesting the application of prosecutorial discretion, the requesting body had the duty to set forth all the facts involved in the agreement, whether these were related to the investigated act or were distinct and independent. If they were included in the agreement and it was intended to waive their criminal prosecution, they had to be described, the foregoing because jurisdictional control is exercised over the agreement and not, as some might interpret, over a part of it, that is, the part related to a particular investigation, a position which—it is reiterated—would open the door for the requesting body to arbitrarily dispose of the exercise of criminal action, making, on one hand, within the process, negotiations that are favorable to its interests and in which the requirements of lesser blameworthiness or culpability of the cooperating witness are satisfied and, on the other hand, on the margins of the legal system, other agreements, exempt from any jurisdictional control. According to attorneys Criss González Ugalde and Maribel Bustillo Piedra (f. 171,400 and 171,401 front, volume XXXVIII), it cannot be asserted that the requesting body hid information from the criminal judge since, although the processing of the prosecutorial discretion was carried out in a separate file, the request mentioned the case in which it was required (namely, No. 04-6835-647-PE). That is, according to said professionals, it was sufficient for the judge who had to resolve the request for the application of the prosecutorial discretion to become aware of the content of the investigation to discover that [Nombre01 064] had received other economic compensations. Such reasoning by attorneys González and Bustillo is erroneous, since according to Art. 22 of the C.P.P., it is the Public Prosecutor's Office that must decide whether to waive criminal prosecution, totally or partially, or if it limits it to one or several infractions. That is, the examination that criminal judge Nombre11 must make shall depart from the limits established by that body. Such is Nombre02 that, even hypothetically assuming that the court detected that additional facts beyond those contemplated in the request were being aired in the case, this was of no importance, since in accordance with the rules governing the matter, it could well be understood that in relation to those, criminal prosecution remained in force, something that as of today is known not to have happened in this case, not only because of the statements made by attorney Bustillo Piedra in case file No. 08-000032-0615-PE, but also because despite the passage of time, the acceptance made by [Nombre01 064] of a series of advantages of patrimonial content that were presented to him outside the facts submitted for judgment in this matter has not been investigated and prosecuted. This confirms what has been being argued, in the sense that the requesting body is obliged to act with extreme transparency, objectivity, loyalty, and rigor, reflecting in the agreement ALL the facts subject to negotiation and not only those that seem opportune to it. Finally, the situation of [Nombre01 064] himself cannot be ignored, since if he provided cooperation it was because the requesting body committed to waiving the criminal prosecution of a series of conducts, it being inadmissible to endorse practices that cast doubt on the scope of the agreement, preventing the cooperating defendant himself, should it be necessary, from demanding compliance with what was agreed. </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">3) </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">Hypothetical inclusion of the conducts omitted by the requesting body when requesting the prosecutorial discretion and new valuation regarding the blameworthiness that can be formulated regarding the conducts attributed to [Nombre01 064], in comparison with those of other defendants. Weighing of the arguments put forward by the trial court regarding the specific topic</span><span style="font-family:Arial">. The resolution that authorized applying the prosecutorial discretion in favor of [Nombre01 064] not only lacks grounding, but also was adopted without having all the necessary information for such purposes, since the Public Prosecutor's Office omitted to include in the request some of the acts whose criminal prosecution it had agreed (apparently “de facto”) to waive. This defect acquires relevance to the extent that, with the inclusion of those facts, the jurisdictional body could have concluded that the cooperating witness's conduct was </span><span style="font-family:Arial; text-decoration:underline">not</span><span style="font-family:Arial"> less blameworthy than that of those defendants against whom the aforementioned legal institute was negotiated. Such being Nombre02, to determine the essentiality of the error, it is necessary to proceed to carry out that exercise of hypothetical inclusion, not without first pointing out some extremes: </span><span style="font-family:Arial; font-weight:bold">1)</span><span style="font-family:Arial"> As already indicated before, in the case of [Nombre01 041], [Nombre01 078], and [Nombre01 046], neither the requesting body when requesting the application of prosecutorial discretion, nor the criminal judge who resolved that request, pronounced on the blameworthiness that could be attributed to them in comparison with that which corresponded to [Nombre01 064]. It is a topic that was </span><span style="font-family:Arial; text-decoration:underline">simply overlooked</span><span style="font-family:Arial">, contrary to what happened with [Nombre 033], since when requesting the application of prosecutorial discretion, the requesting body alluded to him, explaining the reasons why it considered he deserved greater blameworthiness than [Nombre01 064], reasons that, as explained </span><span style="font-family:Arial; font-style:italic">supra</span><span style="font-family:Arial">, the jurisdictional body limited itself to transcribing, without making any weighing or verification. </span><span style="font-family:Arial; font-weight:bold">2)</span><span style="font-family:Arial"> The examination regarding the blameworthiness attributable to the defendants was carried out </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">for the first time</span><span style="font-family:Arial"> in the appealed judgment, considering in this regard only the facts that were described in the documentation prepared for the agreement made, leaving aside those conducts of [Nombre01 064] in relation to which it was negotiated and agreed (“de facto” and not de jure) to waive criminal prosecution. </span><span style="font-family:Arial; font-weight:bold">3)</span><span style="font-family:Arial"> The analysis that this Chamber must now make must go back to the moment when the prosecutorial discretion was authorized, considering from an </span><span style="font-family:Arial; font-style:italic">ex ante</span><span style="font-family:Arial"> perspective, as indicated in Article 22, subsection b) of the procedural code (código de rito), the conducts whose criminal prosecution was sought to be facilitated by the cooperating witness's contribution, not being able to include conducts other than these (although, from an </span><span style="font-family:Arial; font-style:italic">ex post</span><span style="font-family:Arial"> analysis, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> court may have deemed them proven by relying on that contribution and they may have been useful to argue that the blameworthiness attributable to some defendants is greater than that corresponding to [Nombre01 064]. Such is Nombre02, e.g., the trial court affirmed that the conduct of [Nombre02 041] is more blameworthy than that of the cooperating witness because the former made promises of gifts </span><span style="font-family:Arial; text-decoration:underline">to several public officials</span><span style="font-family:Arial"> and not only to [Nombre 064], an extreme regarding which [Nombre01 064] could not make any contribution, since he denied knowing if, besides himself and [Nombre01 033], there were other public officials involved. </span><span style="font-family:Arial; font-weight:bold">4)</span><span style="font-family:Arial"> The comparison, which must go back to the moment when the agreement took place, must be made between the conduct or conducts of [Nombre01 064] whose criminal prosecution is being waived, and those </span><span style="font-family:Arial; font-style:italic">of the defendants whose criminal prosecution is facilitated by the application of the legal institute</span><span style="font-family:Arial">, it not being legitimate to consider, to establish the magnitude of the blameworthiness, the conducts of </span><span style="font-family:Arial; font-style:italic">other defendants</span><span style="font-family:Arial"> that the sentencing court deemed proven by relying on the testimony of [Nombre01 064] </span><span style="font-family:Arial; text-decoration:underline">but in relation to whom the prosecutorial discretion was not negotiated</span><span style="font-family:Arial"> (this is the case, e.g., of [Nombre01 001], of [Nombre01 022], or of [Nombre01 028]). That is, the study must be circumscribed to the blameworthiness attributable to the acts of [Nombre01 064] in comparison with that attributable to [Nombre01 078], to [Nombre 033], to [Nombre02 046], and to [Nombre01 041], </span><span style="font-family:Arial; text-decoration:underline">since it was only in relation to these justiciables that the requesting body sought to apply the prosecutorial discretion. At this point, it is important to underline that this Chamber is not calling into question that the statement of [Nombre01 064], </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">once incorporated into the trial</span><span style="font-family:Arial; text-decoration:underline">, was weighed as one more piece of evidence, even to the detriment of some defendants against whom the prosecutorial discretion was not negotiated</span><span style="font-family:Arial"> (in this same sense, see the judgment of the Sala Tercera No. 1030-2014, of 10:00 hours on June 27, 2014), however, this does not mean, not by a long shot, that to examine the degree of blameworthiness, as far as the cited Article 22, subsection b) is concerned, that circumstance must be weighed, </span><span style="font-family:Arial; font-style:italic">since at the time the negotiation took place</span><span style="font-family:Arial">, which is precisely the time to which we must go back, the causation of such effects was not contemplated and such is Nombre02 that the negotiation occurred, it is reiterated, only to the detriment of specific defendants ([Nombre01 033]</span><span> </span><span style="font-family:Arial">, [Nombre01 046], [Nombre01 041], and [Nombre01 078]). Having clarified the foregoing, we turn to the heart of the matter, indicating that, for the reasons that will be set forth below, </span><span style="font-family:Arial; text-decoration:underline">for</span><span style="font-family:Arial"> </span><span style="font-family:Arial; text-decoration:underline">this sentence appeals court, the conducts attributed to [Nombre01 064] are not, nor were they at the time of the negotiation, less blameworthy than those whose criminal prosecution he facilitated with his statement, and—to that extent—the prosecutorial discretion is also illegal for this reason</span><span style="font-family:Arial">. Upon signing the agreement, there were elements to suspect that [Nombre01 064] was a public official prone to receiving irregular economic advantages. According to what was stated in proven facts numbers 113 and 114 (f. 15,450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) he received on the occasion of the 400,000 lines contract, he transferred to [Nombre01 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. That is, [Nombre01 064] appropriated $1,739,690.32, thereby becoming Nombre02 the public official who obtained the greatest economic advantages from the criminal scheme associated with the 400,000 lines issue, a conclusion that is not modified by the fact that, later, when negotiating an expedited procedure (procedimiento abreviado) and then prosecutorial discretion with the Public Prosecutor's Office, he was willing to hand over to the State significant sums of money and some assets (thus, cf. f. 3 and 4 of evidence No. 308 and f. 3, evidence No. 776). In addition to what has already been said, [Nombre01 064], before the facts investigated here, had received $63,083.59 that were given to him by [Nombre 046]; $110,207.00 paid by the companies [Nombre 083].- [Nombre 270]., $29,833.95 from the company [Nombre 085]. and, finally, an approximate $56,000 related to the La Joya project, the foregoing without mentioning the trip to Brazil that, as [Nombre01 033] reported, was paid for by [Nombre01 091]. In summary, when the prosecutorial discretion was negotiated and its application requested, there were elements to reasonably think that [Nombre01 064] had committed several criminal acts, some related to the 400,000 lines issue and many others unrelated to it, all—apparently—of a similar nature: receiving gifts in his capacity as a public official. Despite this, it was decided to guarantee his impunity so that, in exchange, he would testify against [Nombre01 033], [Nombre01 041], [Nombre01 046], and [Nombre01 078] (the latter was not subjected to this criminal process). In the case of [Nombre01 041], the cooperating witness was willing to testify that the latter </span><span style="font-family:Arial; text-decoration:underline">extended a promise of a gift related to the 400,000 lines contract and, later, transferred the promised funds to him via [Nombre02 058].</span><span style="font-family:Arial"> Whereas the cooperation of [Nombre 064], at the time of agreeing on the prosecutorial discretion </span><span style="font-family:Arial; text-decoration:underline">and as far as [Nombre01 041] is concerned,</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">made it possible to prove a single fact</span><span style="font-family:Arial"> </span><span style="font-family:Arial; text-decoration:underline">, namely, that the latter extended an offer of economic retribution prior to the 400,000 lines contract</span><span style="font-family:Arial">, the impunity guaranteed to the former was for extremely reprehensible conduct </span><span style="font-family:Arial; font-style:italic">due to its quantity</span><span style="font-family:Arial"> (we speak of repeated acceptance of gifts, which, at a minimum, demonstrates that for [Nombre01 064] this was a habit); </span><span style="font-family:Arial; font-style:italic">due to the sums involved</span><span style="font-family:Arial"> ([Nombre01 064] was the public official who received the most money on the occasion of the 400,000 lines contract, even after subtracting the portion he gave to [Nombre01 033], and he also received substantial profits from other natural and legal persons); </span><span style="font-family:Arial; font-style:italic">and finally, due to his condition as a member director of ICE</span><span style="font-family:Arial">, a position he used to receive all the described economic retributions. We know that the legislator punishes the corrupter, at least in certain cases, with the same penalty that corresponds to the corrupt public official, however, in matters of blameworthiness, or in other words, the culpability of those involved (which in the case of [Nombre01 064] is established hypothetically, since no accusation has been formulated nor trial held regarding him), it is impossible to ignore how he, despite having the obligation to perform his duties with probity, abused his position of power as a member of the board of directors of ICE, to obtain economic benefits at the expense of various suppliers of the aforementioned autonomous institution. Faced with this, we have [Nombre01 041], a private individual who, if we stick to what was stated by [Nombre02 064], offered him a gift in exchange for helping [Nombre01 091] in three specific areas (migration to GSM, use of tenders, and a favorable vote in the award of the 400,000 lines), which incidentally would allow him ([Nombre01 041]) to obtain a profit. While both paying and receiving are reprehensible conducts, [Nombre01 064] does not deserve less blameworthiness than [Nombre01 041] and, to that extent, it is not legitimate to grant procedural advantages to the former in order to achieve the conviction of the latter, since as indicated, [Nombre01 064] was a public official who was not only involved in the events related to the 400,000 lines, but in many others, which demonstrates that receiving gifts was a habit for him, [Nombre01 041] being only one of the subjects who, apparently, offered him one of those economic retributions. This Chamber does not ignore that the statement of [Nombre01 064] was essential to prove that [Nombre01 041] made offers of gifts to other public officials, which undoubtedly increases the blameworthiness, however, it must be reiterated, this is an unexpected and unforeseen result when the prosecutorial discretion was negotiated, to the point that [Nombre01 064] himself stated he did not know if other officials were in his same situation (cf. e.g., statement of [Nombre02 064], f. 14,957 front, last lines, volume XXXI). That is, at the time the agreement was made, it was not intended that [Nombre01 064] would make any contribution to prove the culpability of </span><span style="font-family:Arial; text-decoration:underline">other public officials</span><span style="font-family:Arial"> beyond [Nombre02 033] and the proof of this is that the legal institute was requested only to the detriment of [Nombre01 078], [Nombre01 046], [Nombre01 041], and [Nombre01 033]. Therefore, this court would be acting wrongly if it used that consequence, to a certain extent unforeseen, to try to give support—retroactively, moreover—to a resolution that lacks any basis, not only because the jurisdictional body effectively did not carry out any analysis, but also because, had it done so considering all the information that we know was omitted, it would have concluded that [Nombre01 064] did not deserve less blameworthiness. </span><span style="font-family:Arial; text-decoration:underline">The situation is similar in the case of defendant [Nombre01 033].</span><span style="font-family:Arial"> As far as the prosecutorial discretion is concerned, he was accused of having instigated [Nombre01 064] to accept the promise of a gift that was made to him by [Nombre01 041] and [Nombre01 078] and, later, of having received the money that the cooperating defendant transferred to him, with the purpose of fulfilling what was promised. As was deemed proven (cf. facts numbers 113 and 114, f. 15,450 front), of the two million five hundred sixty thousand two hundred fifty-three dollars and thirty-two cents ($2,560,253.32) that [Nombre 064] received, he gave [Nombre 033] the sum of five hundred eighty-nine thousand five hundred sixty-three dollars ($589,563.00), plus the sum of two hundred thirty-one thousand dollars ($231,000) delivered in cash. Faced with this isolated conduct of [Nombre01 033], we have the repeated conducts of [Nombre01 064] that were pointed out earlier, namely, the acceptance of several economic retributions paid by companies and private individuals with whom he was in contact due to his position at ICE (namely, $1,739,690.32 from [Nombre01 091] on the occasion of the 400,000 lines contract; $63,083.59 that were given to him by [Nombre 046]; $110,207.00 paid by the companies [Nombre 083].-[Nombre01 270]., $29,833.95 from [Nombre01 085]. and finally, an approximate $56,000, related to the La Joya hydroelectric project, Nombre02 as the trip to Brazil that was also mentioned before). Such being Nombre02, </span><span style="font-family:Arial; text-decoration:underline">the difference between the position held by [Nombre01 033] compared to that held by [Nombre01 064], is the only argument invoked in the trial judgment to affirm that the conduct attributed to the former is more blameworthy than all those executed by the latter, </span><span style="font-family:Arial">which is unsustainable, because although it is true that the personal conditions of the active subject that are decisive for the commission of the crime must be considered, this does not Nombre05 ignore the seriousness of the conduct actually carried out and, in the specific case of the 400,000 lines, the action of [Nombre01 033] was not so decisive, to the point that [Nombre01 064] himself had no problem disregarding the distribution of irregular profits ordered by the former (where—as Nombre02 stated—</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> [Nombre01 033] would obtain 60% and he 40%). On the other hand, the fact that [Nombre01 033] was his hierarchical superior in Casa Presidencial, and that—moreover—</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> it was the Government Council of the [Nombre02 033] administration that appointed him as a member of the Board of Directors of ICE, for purposes of determining the degree of blameworthiness of both conducts does not have much importance, since, despite that hierarchical relationship, as explained, [Nombre01 064] would have had no qualms about refusing to give [Nombre01 033] the percentage of profits they had agreed upon, considering it unfair. In fact, at trial, despite affirming that the difference in the profit distribution percentages was justified </span><span style="font-family:Arial; font-style:italic">“… from the point of view of the participants because Mr. [Nombre01 033] was the [...]”</span><span style="font-family:Arial">, when questioned, he acknowledged having stated in previous declarations that those percentages were unfair and disproportionate, since it was he who assumed all the risk, as, </span><span style="font-family:Arial; font-style:italic">“… the monies arrived in the accounts I provided and I dealt with [Nombre02 091] to protect the [...], Nombre56 I only dealt with high-level people from [Nombre01 091]. Of the money received, I had the responsibility of giving Mr. [Nombre01 033] the monies that corresponded to him...”</span><span style="font-family:Arial"> (F. 14,991 front of the judgment, volume XXXI). That is, starting (in accordance with an </span><span style="font-family:Arial; font-style:italic">ex ante</span><span style="font-family:Arial"> analysis) from the facts that supported the prosecutorial request for homologation of the prosecutorial discretion, Nombre02 as well as from the very account provided by [Nombre01 064], he was not a person who, sporadically and by chance of fate, received a promise of a gift and, faced with this, sought the support of the then [...] Nombre57 to accept it. On the contrary, he was a public official well-versed in these matters, who knew how to act, and who sought out [Nombre01 033] because he understood that the future act expected of him could require someone more influential. The issue is so clear, that despite [Nombre01 033] being the [...] Nombre25 hierarchical superior of [Nombre01 064], the latter had no problem abandoning the commitment made with him and giving him a smaller sum of money, considering that the agreed-upon distribution percentages were unfair. That is, with the purpose of keeping the greater part of the illicit profit, [Nombre01 064] (as he declared) set aside [Nombre01 033]'s position, which allows concluding that the hierarchical relationship, contrary to what was outlined by the requesting body when requesting the prosecutorial discretion, is not an element that, at least in light of the specific case, can be considered decisive for the purpose of considering that [Nombre02 033]'s conduct was more blameworthy. This appeals court does not ignore that (as derived from the statement of [Nombre01 064]) the then [...] of the country was required to censure his subordinate and report what happened. However, the fact that instead of this he supported him in a way that only he could, does not allow affirming that the acts of [Nombre01 064] were less blameworthy, to the point of justifying the cost of the impunity guaranteed to the cooperating witness with the sole purpose of obtaining the conviction of a person who at that time held a higher rank. This seems to have been the only purpose that moved the requesting body since, as has been pointed out, despite having negotiated the prosecutorial discretion to obtain information against [Nombre01 046], [Nombre01 041], and [Nombre02 078], </span><span style="font-family:Arial; text-decoration:underline">in the request made by the Public Prosecutor's Office, no attempt was even made to explain why it is understood that these deserve greater blameworthiness than [Nombre 064]</span><span style="font-family:Arial"> , which was attempted to be justified in the case of [Nombre01 033], albeit with little success, since the only argument put forward is the one already outlined, namely, the consideration that [Nombre01 033] was [...] and hierarchical superior of [Nombre01 064], without considering several issues that have already been mentioned, specifically, that [Nombre01 064] was also a public official, that he had made receiving gifts a habit; that compared to the multiple criminal conducts that could be attributed to him, [Nombre01 033] was only accused of having been a participant in a crime in which [Nombre01 064] appeared as the perpetrator and, finally, that the economic retribution obtained by the cooperating witness on the occasion of the 400,000 lines was the most significant of all, and that those received for other acts were also substantial. For all of this, it cannot be considered that the instigation conduct attributed to [Nombre01 033], whose criminal prosecution was facilitated by [Nombre01 064]'s declaration, was more blameworthy than those attributed to the latter. Likewise, the assertion contained in the appealed judgment, to the effect that [Nombre01 064] deserves less blameworthiness because he has been willing to cooperate with the administration of justice is extremely questionable, since, in the first place, if we start from the thesis assumed by the trial court, in the sense that the version he gave after negotiating with the Public Prosecutor's Office is the true one, we would have to conclude that for months, by denying the promise of a gift, he intended to confuse the respective authorities, with the sole purpose of evading his responsibility.

Similarly, from that collaboration one cannot derive the conclusion that [Nombre01 064] is repentant, for it is patently clear that his assistance has not been gratuitous; from the exercise of the right to a defense, which is what has characterized the other defendants, including [Nombre01 033], one cannot extract a lack of repentance for the acts that, according to the trial court, he committed. Finally, with respect to [Nombre01 046], the situation is also quite clear. Although both he and [Nombre01 064] were persons with extensive careers in the public sector, at the time of the events of interest here it was the latter who was performing a public function. Thus, several crimes that were, at least in principle, attributable to [Nombre01 064] (including the one related to the contract for the 400,000 GSM lines, which resulted in an enormous gain for the cooperating defendant) were left uninvestigated and unprosecuted, in exchange for facilitating the criminal prosecution of a person who, before the events investigated herein, had allegedly promised him (according to the statement of [Nombre01 064]) an economic reward in exchange for helping him collect a sum of money owed to him by [Nombre01 091], a proposal that the public official accepted and translated into collection actions, subsequently receiving, also without any objection, the sums transferred to him by [Nombre01 046] as a token of gratitude for that help. That is, the requesting body was willing to guarantee impunity for a public official who repeatedly received gifts, some of surprising amounts, in exchange for facilitating the conviction of a private individual who appeared as the corrupter in only one of those events, one that occurred prior to and separate from the contracting for the 400,000 lines. In summary, the conduct of defendant [Nombre01 064], due to its repetition, the amount of the economic rewards obtained, and, of course, the use of his position to obtain those illicit gains, is no less reprehensible than the conduct of [Nombre01 046] that was intended to be demonstrated with the former's statement and which is limited to a single event, where both [Nombre01 046] and [Nombre01 064] would have participated and would have obtained an illicit financial benefit. That said, it is important to note that the trial court, in its judgment, despite insisting that it lacks jurisdiction to rule on the "substantial" requirements set forth in Art. 22 subsection b) of the C.P.P., dedicated a section to setting forth some reasons why it understands that the requirement of lesser reprehensibility was indeed met, which can be outlined as follows: i) what is significant is that the reproach directed at the cooperating defendant is less than that of those who were brought to trial, an issue that has nothing to do with the concepts of perpetration (autoría) and participation (participación); ii) reprehensibility is measured from the standpoint of culpability. Culpability in relation to the criminal wrong must be taken into account, in accordance with Article 71 of the Penal Code. The judgment of reproach involves determining the typical, unlawful, and culpable conduct executed by the cooperating defendant and that carried out by the accused, the capacity for understanding and acting in accordance with the law of both, and the reproach to the cooperating defendant and to the defendant. Personal conditions [Art. 71 subsection d) of the Penal Code] must be considered to the extent that they influenced the commission of the crime. Therefore, the criminal trial judge made no error in considering those conditions to establish that a lesser reproach applied to [Nombre01 064]. It cannot be affirmed that such an assessment is characteristic of a criminal law based on the offender's character (as considered by the dissenting vote of the trial court), given that the Constitutional Chamber itself has endorsed the consideration of those personal circumstances when setting the penalty, and furthermore, what is being judged is a specific conduct and not what a person is, and in the case of crimes related to public function, the scope of the position held ceases to be an irrelevant condition and becomes related to the typical prohibition; iii) the comparison is with respect to "the reproaches," not the conducts or crimes, nor the penalties, nor the effects of the benefit agreed upon with the cooperating defendant. It is not appropriate to examine the crime or crimes, when there were several, committed by the cooperating defendant or the defendant. The rule speaks of "conduct" and "punishable act (hecho punible)," whereby the analysis, more than focusing on crimes and penalties, must be qualitative. It is not enough to know the penalty parameters and establish the lowest and highest ones; rather, the examination must focus on the presuppositions of Article 71 of the Penal Code with respect, on one hand, to the conduct indicated and, on the other, to the punishable act. Therefore, it is also insufficient to compare, in the abstract, other illicit conducts and economic benefits that [Nombre01 064] allegedly received; iv) the trial court must monitor the concurrence of formal requirements and not substantive ones; it is understood that it cannot determine whether the conduct of the cooperating defendant is less reprehensible. Here the aforementioned point is reiterated, namely, that it is the prosecutorial office that must make this assessment ex ante and that the oversight of this mechanism corresponds to the judge of the preparatory or intermediate stage, as the trial court cannot analyze this matter before issuing judgment, since this would mean advancing an opinion. Now, in the specific case, it argues, the trial court resolved that the criterion met the formal requirements, wherefore it cannot be affirmed that there was no ruling. Furthermore, the body competent to control the admissibility of this legal mechanism did so, and therefore one cannot argue that there was a denial of justice when each jurisdictional body fulfilled its tasks, without exceeding its own nor arrogating those that do not correspond to it, even if this is not to the liking of some of the parties to the proceeding; v) the conduct of [Nombre01 064] is less reprehensible than that of [Nombre 041], [Nombre01 033], and [Nombre01 046], whose prosecution he facilitates. From here on, and following the provisions of Article 71 mentioned, the trial court sets forth the reasons for which it qualifies as “less reprehensible” the conduct of [Nombre01 064], employing a comparative exercise with each of the defendants against whom the prosecutorial discretion criterion (criterio de oportunidad) was requested. Regarding [Nombre 041], the trial court notes, regarding the objective and subjective aspects of the punishable act, that this entire situation would not have occurred without the existence of a remunerative proposal made by [Nombre01 041]. There can be a corrupting person without there being a corrupted person, but not the inverse; hence, from the objective perspective, the action of [Nombre01 041] is more reprehensible than that of [Nombre01 064]. Regarding the importance of the injury or danger, even though it is recognized that the conduct of both affects the legal interest (bien jurídico) and social order, the triggering factor of the events is the plan devised by [Nombre02 041], directed at entering into consulting contracts as a front for financing the operation; thus, in the production of social harm and injury to the legal interest, the greater contribution was made by [Nombre01 041], who acted following a previously established scheme. He knew how to set the plan in motion, could define the appropriate amount to make the promise and provoke its acceptance, actions that reveal he acted in a calculated manner, unlike [Nombre01 064], who was unaware of the entire illicit machination previously outlined, to the point of ignoring that there were other persons involved, or the magnitude of the corrupting proposals of [Nombre01 041]; therefore, the greater reproach also falls on the latter. Regarding the circumstances of manner, time, and place, [Nombre01 041] communicated with the other corrupters to generate a financing strategy and, to that end, proposed to deceive the corporation [Nombre01 060]. He coordinated approaches with public officials, held meetings with those officials – including [Nombre01 064] – and provided information to the other corrupting persons so that they would make the payments. That is, [Nombre01 041] had been working on structuring and setting up a plan that allowed him, through the payment of gifts to public officials, for the ICE to acquire the products offered by [Nombre01 091]. In contrast, the action of [Nombre01 064] not only depends on the described plan but also occurred as a result of the meetings in which both participated, such that the payments he received are individual links within a chain of events that encompasses the criminal behavior of the former. Regarding the nature of the determining motives, the injury to the legal interest of public probity was caused by both the acts of [Nombre01 064] and those of [Nombre01 041]; however, while the former sought to procure a financial benefit on an individual basis, in the case of [Nombre01 041] the sum was greater, as it was he who, together with the other corrupters, had control over the funds for their illicit purposes. Regarding the other personal conditions of the active subject or the victim to the extent they influenced the commission of the crime, [Nombre01 041] was the general manager of the company [Nombre01 091]; hence, he knew how the corporation was organized, having also worked at the ICE and knowing its dynamics. He earned the corporation's trust to the point that he was to propose the consultants to be hired and participated in the process of disbursing payments to them. He also knew the ICE and its relationship with [Nombre01 091], which provided him with the mechanisms to identify the key players, how to contact them, how to influence their decisions so they would be favorable to the company, and how to obtain the money to overcome their barriers. For his part, [Nombre01 064] was only one of the pieces in that criminal strategy, one of the officials he had to persuade with his proposal. Finally, regarding the agent's conduct subsequent to the crime, while [Nombre01 041] has done nothing to repair the harm, [Nombre01 064] has acknowledged his improper behavior and has returned a large part of the money received, whereby the conduct of the latter is less reprehensible. In the case of [Nombre02 046], the judgment affirms that the reproach to be directed at [Nombre01 064] is lesser because: Regarding the subjective and objective aspects of the punishable act, [Nombre01 046] had an extensive public career, greater than that of [Nombre01 064]. Regarding the importance of the injury or danger, even though [Nombre01 064] was a public official and [Nombre01 046] was not, the more significant injury to the legal interest of probity was caused by the latter, as he is the promoter of the criminal action. Regarding the circumstances of manner, time, and place, [Nombre01 046] approached [Nombre01 064] and asked him to take collection actions against [Nombre01 091] so that the monies owed to the former would be paid. [Nombre01 064] accepted and acted accordingly, which is why [Nombre01 046] later paid him various sums of money. The majority vote states that it was [Nombre01 046] who went to [Nombre02 064], who sought him out at the ICE knowing his status and knowing that [Nombre01 091] was a supplier to the ICE. Based on his mastery of that background, he made the remunerative promise to [Nombre01 064], which supports his greater reprehensibility. With regard to the determining motives, both were moved by a monetary interest; however, [Nombre01 046] is the architect of the mechanism (the promise and delivery of a gift) that motivated [Nombre01 064]. Regarding the other personal conditions of the active subject or the victim to the extent they influenced the commission of the crime, it can be seen that [Nombre01 046] made use of the knowledge obtained from his work in the public sector (he held a position at the ICE) and his contact with people in the national political sphere, including [Nombre01 033], to manage to communicate with [Nombre01 064]. Finally, regarding the conduct subsequent to the crime on the part of the agent, [Nombre01 046] has not taken any action to repair the harm, while [Nombre01 064] has, by handing over money and movable property. In the case of [Nombre01 033], the trial court indicates, regarding the objective and subjective aspects of the punishable act, that this defendant held one of the most important positions in the public function, a position that is of significance for the commission of the crime attributed, since not just anyone can be the active subject of the crime of bribery. Furthermore, being the [...] Nombre58 is a personal condition that not only relates to the criminal nature (tipicidad) of the conduct but also has to do with the legal interest – probity – since it does not generate the same social harm for a public official at the lowest rank to be convicted of this crime as for the person who occupies the highest level of public administration to be convicted. Although [Nombre01 064] was also a public official, [Nombre01 033] had a higher rank and hierarchy and, by virtue of being the [...], Nombre59 he was required to exhibit upright conduct; it was from him that honest behavior, oriented exclusively toward fulfilling the public interest, was expected, which is why the reproach applicable to him is greater. Regarding the importance of the injury or danger, although both [Nombre01 033] and [Nombre01 064] contributed to causing the injury, the most significant contribution, the majority vote says, was made by [Nombre02 033], since by criminalizing conduct such as bribery, the legislator sought to safeguard probity, rectitude, honesty, and impartiality in the performance of office, so that those who occupy them in a paid capacity do so with an interest in satisfying the public interest and not their own interests, much less to enrich themselves unduly by that means. The [...], Nombre60 having broad popular representation, enjoys extensive authority and is located at a central level, both for public oversight and for the integration of the nation and the definition of its course. He is not only the one who appoints and removes the cabinet, but he is the one who heads it and directs important tasks at both the national and international level. And if the head falters, the body tends to collapse. It is concluded that the shortcomings in [Nombre01 033] are those that most contribute to the harm. Regarding the circumstances of manner, time, and place, the trial court considers that although one might think that [Nombre01 064] was the one who contacted [Nombre02 033] to convey the proposal of [Nombre01 041] to him, the development of the crime thereby being the initiative of the former, it must be considered that [Nombre01 064] went to [Nombre01 033] because of the confidence that existed between them, because there was political support from one for the other, as well as an employment connection and a relationship of friendship ([Nombre01 064] was a member of the board of directors of the ICE and his appointment corresponded to the government council presided over by [Nombre01 033], also serving as a presidential advisor). Moreover, before [Nombre01 064] conveyed the described proposal to [Nombre01 033], the latter had already urged the former to participate in a prior criminal act, namely, when he asked him to intercede with [Nombre01 091] so that the payment of monies to [Nombre01 046] would be honored. He even asked him to attend to this matter by taking advantage of a trip [Nombre01 064] would make abroad. Thus, instead of [Nombre01 033] holding [Nombre01 064] accountable and demanding upright conduct from him, what he did was urge him to accept the proposal, to ask for a higher percentage, and he even proposed the formula for distributing the money. That is, although [Nombre01 064] is the one who had to comply with the proposal, he went to [Nombre01 033] to make a decision, since he knew he could not decide on his own. This reveals the decisive role of [Nombre01 033], as it was he who caused [Nombre01 064] to act. Regarding the nature of the determining motives, the legal interest of probity was injured by both defendants and, in that regard, the reproach was similar. The economic interest demonstrated by [Nombre02 033] is revealing, when upon hearing [Nombre01 064], the first thing he does is ask how much the amount to be received will be and then decides on the distribution formula, increased in his favor, and it is what then, also a reflection of the ambition of [Nombre01 064], leads the latter to tell him that he does not agree with such distribution. Regarding the personal conditions of the active subject or the victim to the extent they influenced the commission of the crime, the trial court indicates that when [Nombre01 033] learns of the corrupting proposal, he is the highest authority of the country and one of the few officials whom the majority of the population has elected by their vote, and therefore greater diligence was expected of him, as well as an unending effort to be correct in the exercise of his function. Despite this, he opted for the opposite, promoted the acceptance of the corrupting proposal, and benefited from the gifts delivered. The person who declined his duty of probity, the a quo notes, was not just any public official, but the one of the highest rank, even causing [Nombre01 064] to accept the proposal. In the same way, [Nombre01 064] did not go to just any person to inform him of the proposal, but rather to the [...] Nombre61 of all Costa Ricans and head of the administration, moreover an influential figure for [Nombre01 064], not only because of their friendship but also because of their functional bond. In that regard, we have on one side [Nombre01 064], a director of an autonomous institution and presidential advisor, and on the other [Nombre01 033], the highest authority with decision-making power over the appointments held by the former, and from whom behavior in accordance with the law was demanded to a greater extent, just as the reproach for not doing so is greater. Regarding the agent's conduct subsequent to the crime, [Nombre01 033] has not taken any action to reduce the impact of the harm caused by his actions, while [Nombre01 064] accepted his responsibility, was willing to agree to an abbreviated procedure and serve a custodial sentence for which house arrest did not apply as credit. This option did not succeed because those who acted as complainants in this proceeding opposed it, and the prosecutorial office opted for the prosecutorial discretion criterion. [Nombre01 064], in addition, appeared at the trial and accepted his behavior, also having handed over part of the money received and two vehicles. Although the defense has questioned that he has not returned the totality of the money and that the vehicles are old, the truth is that, if one starts from that parameter, one would have to conclude that [Nombre01 033] has returned nothing. The trial court concludes its presentation by noting that the foregoing reasoning explains why, at the time, it deemed that it could not rule on the issue of greater or lesser reprehensibility, namely, because it corresponds to another court and because its impartiality could be compromised by making that analysis, however “abstract” it might be (folios 15,395 to 15,415 front of volume XXXI). Thus far the trial court's argument. For those signing this decision, the foregoing reasoning is erroneous, not only because of what was said supra when examining the issue of the reproach to be directed at each defendant in relation to [Nombre01 064], but also because of what will be set forth below. In the first place, it is evident that to determine the intensity of the reproach in the case of [Nombre01 041], the a quo not only considered his culpability in relation to the specific act that was intended to be demonstrated through the statement of [Nombre01 064] (namely, that the former made a promise of a gift to the latter at the [Nombre01 094] restaurant and then transferred a large sum of money to him through [Nombre01 058]), but also his culpability for all the other acts that it found proven against him and which were unknown to [Nombre 064] at the time the prosecutorial discretion criterion was negotiated, e.g., that he was a co-perpetrator of a criminal plan that included other public officials, that there were approaches with these individuals and delivery of economic rewards under similar modal and temporal circumstances; or that [Nombre01 041] had at his disposal larger sums of money than [Nombre01 064], insofar as it was he who identified the public officials to be paid and which amounts. As can be observed, we are speaking of matters that are extraneous to the events that, at the time of the negotiation, were intended to be demonstrated through the testimony of [Nombre01 064]; therefore, they could not be considered when weighing the issue of reproach (at least not for the purpose of legitimizing the prosecutorial discretion criterion), nor can they be taken into account now, since that examination (ex ante) must necessarily go back to the date on which the agreement was signed, bearing in mind the events that were intended to be elucidated with the cooperating defendant's statement, and not those that, after the trial, have been held to be proven with his help. The undersigned are not unaware that the statement of [Nombre01 064] was an indication that allowed the trial court to confirm that, besides the cooperating defendant, there were other public officials involved and that [Nombre01 041], by common agreement with [Nombre01 028], used the corporation [Nombre02 058] to legitimize and then distribute the funds coming from [Nombre01 060]. Nor is it possible to ignore, conducting an a posteriori examination, that the statement of [Nombre01 064] and, in particular, his assertion that a promise of a gift was made to him prior to the contract for the 400,000 lines, was the most significant indication on which the trial court relied to hold it as proven that a similar promise was made to the remaining defendant public officials. However, these consequences derived from the statement of [Nombre02 064], which were not contemplated when negotiating the prosecutorial discretion criterion, cannot be considered for purposes of establishing the greater or lesser reproach to be directed at [Nombre01 041] compared to the cooperating defendant, because his statement was negotiated solely to be used against [Nombre01 041], [Nombre01 033], and [Nombre01 046], and not to facilitate the criminal prosecution of other defendants, e.g., [Nombre01 028], or of the public officials who also received economic rewards and whose connection to the events was unknown even to [Nombre02 064]. That is, in the case of [Nombre01 041], at the time of negotiating the prosecutorial discretion criterion, what could be demonstrated with the cooperating defendant's statement was that the former had made a promise of a gift to him and that, after the contract was awarded, he delivered to him a sum exceeding two and a half million dollars through [Nombre01 058], which he shared with [Nombre01 033]. Thus, to facilitate the criminal prosecution of a particular conduct, the requesting body chose to guarantee impunity for someone who, in addition to accepting that promise and receiving the mentioned sum, received other far from negligible economic rewards, doing so in his capacity as a public official, breaching the duties that had been entrusted to him. It is important to insist that when examining the reproach, it is not appropriate to consider the significance that the statement of [Nombre01 064] had in demonstrating other facts, since this was not foreseeable at the time the criterion was negotiated, and this is so much the case that the application of the legal mechanism was requested only to the detriment of [Nombre01 033], [Nombre01 041], [Nombre01 078], and [Nombre02 046]. Finally, it is important to note that the trial court's thesis, to the effect that the conduct of the one who pays or corrupts is more reprehensible than that of the public official who receives the gift or allows himself to be corrupted, is completely unfounded, for several reasons. The first, because according to the criminal provision for the corrupter, the penalty applicable to the latter is the same as that set forth in the legislation for the public official. The second, because unlike what happens with the corrupter, it is the corrupted person who disregards his duties and compromises the citizenry's trust in its institutions, by using his position to enrich himself. Thus, to argue, without further analysis, that the conduct of [Nombre01 041] is more reprehensible than that of [Nombre01 064] because the former made the promise and the latter merely accepted it, is – in the very least – an assertion that finds no support whatsoever. Regarding [Nombre01 033], the same situation exists. From the arguments cited by the trial court, it can be deduced with perfect clarity that the greater reproach against him rests on the hierarchy of the public functions he performed. Any analysis of the severity of the conduct actually carried out by the then [...] was set aside, nor was it compared with the conduct that was left unprosecuted. It was not considered that [Nombre01 064], at the time of the negotiation, appears as a subject involved in multiple criminal acts of a similar nature, which demonstrates that he was prone to receiving gifts; that it was he and not [Nombre01 033] who, according to the same majority vote, assumed the perpetration (autoría) of the criminal act, and that it was also he who, of the two, obtained the greatest economic benefit, because despite [Nombre01 033] requesting 60% of the criminal gains, [Nombre01 064] had no qualms about altering that distribution, considering it "unfair." There are no reasons to doubt that [Nombre02 033] had a hierarchical relationship with [Nombre01 064] at the time of the facts. It is not unknown that he had appointed him minister, then presidential advisor, and later, through the Government Council that he presided over, appointed him as a board member of ICE. This, which certainly from an ethical perspective makes the conduct of [Nombre01 033] more reprehensible (since if things happened as [Nombre01 064] narrated, he should have reported it immediately instead of supporting his intentions), from a legal standpoint does not allow establishing that the reproach applicable to the second person is of lesser significance if everything else is considered. Furthermore, it is important to note that in the case of [Nombre01 064], the status of public official also played a central role, not only regarding the contract for the 400,000 lines, but for all other receipts of gifts in which he appeared as a suspect. Finally, observe how the trial court, insofar as it considered the conduct of [Nombre01 041] and [Nombre01 046] more reprehensible with the argument that they were the promoters of the execution of the crime, the ones who took the initiative to approach [Nombre01 064], disregards this reasoning in the case of [Nombre01 033], by concluding that although it was [Nombre01 064] who decided to convey the proposal to [Nombre01 033], this does not make his conduct more reprehensible since Nombre02 acted out of the trust and support given to him by the then president. Nombre02 things, while it is true that [Nombre01 033] was at the time of the facts the highest-ranking public official, this circumstance alone does not justify the decision to guarantee impunity to [Nombre01 064], since the facts in relation to which criminal prosecution is waived (and which include the one regarding which it is claimed that [Nombre01 033] is the instigator and [Nombre01 064] the instigated perpetrator), contrary to what the <span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> points out, merit greater reproach than the conduct sought to be prosecuted. Not accepting it this way also leads to the understanding that the reproach, instead of depending on the seriousness of the act and the personality of the participant, responds <span style="font-family:Arial; font-style:italic">exclusively</span><span style="font-family:Arial"> to the personal characteristics of the active subject and, in the case of public officials, to the position held, in such a way that regardless of the conduct actually carried out, the higher the hierarchy Nombre11, the greater the reproach will be. In summary, for all the foregoing reasons, it is concluded that the prosecutorial discretion (criterio de oportunidad) granted to [Nombre01 064] is illegal. As a consequence of the foregoing, the statement he gave at trial as a cooperating accused is illicit evidence and Nombre02 is declared as such. Furthermore, it will proceed to resolve some questions raised by [Nombre01 033] regarding the credibility that can be given to the testimony of [Nombre01 064] and on the occasion of which, this appeals chamber concludes that it is implausible. </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">4) </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">Regarding the assessment of the testimony given by [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">at trial</span><span style="font-family:Arial">. An issue beyond any discussion is the obligation of the trial court to analyze the statement given by the collaborator [Nombre01 064] in accordance with the rules of sound judicial criticism (sana crítica). The court weighed it, concluding –erroneously, in the opinion of this chamber– that it was credible. For these purposes, it took into account several circumstances, some general and others particular, described in relation to each accused. <span style="font-family:Arial; text-decoration:underline">From folio 16.073 front onwards of volume XXXIII, the appealed judgment explains</span><span style="font-family:Arial">: <span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span> The statement of [Nombre01 064], contrary to what the defense attorneys of the accused stated, was plausible and disinterested, since it originated not under a criterion of opportunity, but months before it was agreed upon, under more onerous conditions for the collaborator, namely, on the occasion of an abbreviated procedure (procedimiento abreviado). In this, he accepted his responsibility and was willing to have a penalty of 4 years of imprisonment imposed on him, a procedure that did not succeed due to the opposition of those who requested to intervene as querellantes, among them persons close to Mr. [Nombre01 033]; <span style="font-family:Arial; font-weight:bold; font-style:italic">ii) </span>faced with the expectation of undergoing an abbreviated procedure, [Nombre01 064] delivered the sum of $1,401,000 dollars and two vehicles, as economic compensation; <span style="font-family:Arial; font-weight:bold; font-style:italic">iii) </span>to think as Mr. Gairaud does, that [Nombre01 064] accepted such a custodial sentence because he knew that by reason of the home confinement suffered, the benefit of Article 55 of the Penal Code would be granted to him, is to ignore that since May 9, 2005, with the process having begun in late 2004, [Nombre01 064] was willing to accept the facts and be penalized; that by May 2005, two years had not yet elapsed and therefore, half of the sentence could not be considered served, besides which the granting of that benefit is the purview of the National Institute of Criminology and not of the Public Ministry; <span style="font-family:Arial; font-weight:bold; font-style:italic">iv)</span> from the very first moment, [Nombre01 064] was willing to have his bank accounts, cards, and telephone calls investigated and offered what was within his reach for the investigation; likewise his wife and his mother. His first statement took place on September 30, 2004, and by October 5, he was authorizing the opening of his accounts and the obtaining of banking information; <span style="font-family:Arial; font-weight:bold; font-style:italic">v)</span> on October 12, 2004, he showed interest in compensating the damage caused when he proceeded to deliver to the criminal court a certificate for the sum of $1,401,241.36; <span style="font-family:Arial; font-weight:bold; font-style:italic">vi)</span> as already indicated, on May 9, 2005, 8 months after the case began, he agreed to the application of an abbreviated procedure on the terms indicated, namely, serving a sentence of four years of imprisonment without any benefit, obligating himself to testify at trial and paying the aforementioned sums to the Procuraduría General de la República and ICE, Nombre02 as well as delivering two cars. The court points out that by then, [Nombre01 064] could not avail himself of the benefit contemplated in Article 55 of the Penal Code; that such an option was not negotiated with the Public Ministry nor was it within the competencies of this body. It adds that if the process in question was not finalized, it was due to the refusal of the querellantes Fernando Apuy Sirias and Freddy Coto Varela, where at least the first had a connection with [Nombre01 033]. This is what, ultimately, led the prosecution to agree on a criterion of opportunity. It is not true, therefore, that all of a sudden [Nombre01 064] was benefitted with the criterion of opportunity so that, in exchange for his impunity, he would “sink” the other accused, but rather it was the actions carried out by those close to [Nombre01 033] that prevented the abbreviated procedure from being applied, given that already from this procedure, [Nombre01 064] had committed to testifying at trial; <span style="font-family:Arial; font-weight:bold; font-style:italic">vii)</span> with other accused in this case, abbreviated procedures were negotiated, with sentences of three years of imprisonment and the benefit of conditional execution (e.g., [Nombre01 068], [Nombre01 105]). Thus, it cannot be said that there was preferential treatment for [Nombre01 064] when a sentence of four years of imprisonment was agreed upon with him; <span style="font-family:Arial; font-weight:bold; font-style:italic">viii) </span>according to the minority vote, [Nombre01 064] was allowed to keep around one million dollars in gifts in exchange for testifying, but there is no evidence whatsoever of this. What is on record is that with or without an abbreviated procedure, with or without a criterion of opportunity, [Nombre01 064] delivered a sum of $1,401,241.36 dollars in October 2004. For the majority vote, if [Nombre01 064] had wanted to keep some money in exchange for his impunity, he would not have delivered that sum, much less would he have negotiated such a possibility. Moreover, according to the dynamic hinted at by the defense, if the Public Ministry wanted to compensate [Nombre01 064] for his testimony, one would have to think that they likewise wanted to compensate him when for that same sum, they agreed to apply the abbreviated procedure and impose 4 years of imprisonment on him, or that they wanted to compensate [Nombre01 105] when he only returned $100,000 having received more than $1,000,000, but that they did not want to do so with [Nombre02 068] when they negotiated an abbreviated procedure with him and the return of more than $1,000,000. This reflects that the negotiation with the accused was not conditioned on the matter of the exact return of the amount from which they benefitted; <span style="font-family:Arial; font-weight:bold; font-style:italic">ix)</span> although [Nombre01 064] did not answer some questions from the defense attorneys of [Nombre01 033], [Nombre01 041] and [Nombre01 018], this was because he was questioned regarding facts in which his account would self-incriminate, hence the right of abstention applied to him, or because they were facts unrelated to the accused. In any case, it was the court that advised (the collaborator) in that sense, whereby this situation does not undermine his credibility at all. <span style="font-family:Arial; text-decoration:underline">From folio 16.085 front of the same volume, the </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">a quo</span><span style="font-family:Arial; text-decoration:underline"> undertook the task of setting forth the reasons why it considers that the account of [Nombre01 064] can be corroborated with other evidentiary elements of a direct or indirect nature. It clarifies, indeed, that this verification is in relation to the general aspects of his version and not with respect to each of the facts related by him, since this would render the criterion of opportunity moot</span><span style="font-family:Arial">: <span style="font-family:Arial; font-weight:bold; font-style:italic">a)</span> [Nombre01 033] was [...] from May 8, 1998, to May 8, 2002.<span style="font-family:Arial; font-weight:bold; font-style:italic"> b)</span> [Nombre01 064] had a long career in public service. He was Minister Counselor in charge of business for the Embassy of Chile from 1978 to 1983; deputy for the periods from 1986 to 1990 and from 1990 to 1994; minister in the administration of [Nombre01 033] from May 1998 to July 1999. Subsequently, in this same administration, from August 1, 1999, to May 9, 2002, he was appointed presidential advisor and general director of the presidential house. He was also appointed by the Government Council as director of ICE, effective August 3, 1999, both positions (as minister counselor or general director of the Presidency of the Republic and as a member of the board of directors of ICE), held simultaneously (regarding the foregoing, there is abundant evidence, e.g., items 15, 303, 304, 305, 638.1 and 638.2, all cited at folio 16.091 front and following). From all this it is inferred that [Nombre01 064] was a person close to [Nombre01 033], who depended hierarchically on him. It was also dismissed that [Nombre01 064] harbored any feeling of animosity against [Nombre01 033]; <span style="font-family:Arial; font-weight:bold; font-style:italic">c)</span> despite ICE being an autonomous institution, it maintained a nexus with the central government. This is not solely a result of institutional practice, but of the legal system that Nombre02 provides for it, by leaving in the hands of the Government Council the appointment of the directors of the autonomous institutions and attributing to the [...] Nombre62 the power of direction and coordination of tasks; <span style="font-family:Arial; font-weight:bold; font-style:italic">d)</span> there is abundant evidence that demonstrates that, even before the facts investigated here, the practice of giving perks to public officials of ICE was frequent. [Nombre01 041] spontaneously accepted having paid gifts to public officials. [Nombre02 105] and [Nombre01 078] submitted to a conformity procedure, with the consequent acceptance of charges. There are also three ICE officials who have admitted their responsibility ([Nombre01 068] in an abbreviated procedure, [Nombre01 001] spontaneously admitted before a media outlet having received money from [Nombre01 091] and [Nombre01 064] admitted it before the court), whereby the collaborator's statement is corroborated, in the sense that [Nombre01 041] and [Nombre01 078] made a promise of a gift (dádiva) to him and that he accepted it after submitting it to the knowledge of [Nombre01 033]; <span style="font-family:Arial; font-weight:bold; font-style:italic">e) </span>lunches and other activities between employees of [Nombre01 091] and public officials were frequent. There were meetings between the corruptors and [Nombre01 064], [Nombre01 001], [Nombre01 018], [Nombre01 063] and [Nombre01 022]. There was also another series of attentions for public officials, e.g., the payment of a travel ticket to Paris for “[Nombre01 064]” and his wife (evidence No. 55, folio 91), or hotel reservations for [Nombre01 022]. <span style="font-family:Arial; font-weight:bold; font-style:italic">f)</span> Some public officials frequented the facilities of [Nombre01 091], for example, [Nombre02 022] and [Nombre01 001]. Likewise, [Nombre 041] sent envelopes containing the legend “confidential and personal” to the homes and offices of some public officials ([Nombre02 022], [Nombre01 001] and [Nombre01 018]). He also sent them to the corruptor [Nombre02 028]. <span style="font-family:Arial; font-weight:bold; font-style:italic">g)</span> [Nombre01 046] had a relationship with [Nombre01 033]. According to [Nombre 064], he made collection efforts from mid-2000 before [Nombre 041] at the request of [Nombre01 046] and through the intercession of [Nombre02 033]. [Nombre 046] wrote an opinion article (evidence No. 592.7), where he states that he, at the request of [Nombre01 078], carried out a transaction for [Nombre01 110] (a company linked to [Nombre01 033]) and that he never collected any commission for favors done for two [...], one who appointed him ambassador and another as bank director (the latter is [Nombre01 033]). With this, the court says, the relationship between [Nombre01 046] and [Nombre01 033] is corroborated and although the former exonerates the latter from responsibility in that article, the true explanation behind those payments is already known. <span style="font-family:Arial; font-weight:bold; font-style:italic">h)</span> Two of the directors appointed in the [Nombre01 033] administration are linked to these acts of corruption ( [Nombre01 064] and [Nombre01 068]). A third, [Nombre 022], although appointed in the Figures Olsen administration, had ties to [Nombre01 033]. <span style="font-family:Arial; font-weight:bold; font-style:italic">i)</span> Before making the proposal to [Nombre01 064], [Nombre 041] had already initiated a similar approach with respect to [Nombre01 001], this by meeting with him on Friday, December 1, 2000, also attended by [Nombre01 078], [Nombre01 111] and [Nombre01 112]. Evidence No. 81 demonstrates that this lunch existed, <span style="font-family:Arial; font-style:italic">“… which allows appreciating how the corruptors were resorting to a similar strategy for the remunerative proposals, not only with respect to [Nombre01 064]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">…”</span> (f. 16.129 front); <span style="font-family:Arial; font-weight:bold; font-style:italic">j)</span> At the time the meeting took place at the [Nombre 094] restaurant between [Nombre01 064], [Nombre02 041] and [Nombre01 078] and later, the next day, between [Nombre 064] and [Nombre01 033] at the latter's house, all those involved were in the country. The call from [Nombre01 078] to [Nombre 064] occurred, the court says, on December 1, 2000, the date on which he also met with [Nombre 041] and [Nombre02 001]. The meeting at [Nombre01 094] was on Saturday, December 2, 2000, and the meeting between [Nombre01 033] and [Nombre01 064] took place on Sunday, December 3, 2000. According to the court, if [Nombre01 064] were lying, it would not have been possible to achieve coincidence between the data obtained from the migratory movements of those involved ([Nombre01 064], [Nombre01 078], [Nombre01 041] and [Nombre01 033]), the expense reports of [Nombre01 041] (which show that on December 1, 2000, there was a meeting between [Nombre01 078], [Nombre02 041], [Nombre01 111], [Nombre01 112] and [Nombre01 001]) and the flight itineraries. <span style="font-family:Arial; font-weight:bold; font-style:italic">k)</span> The existence of these meetings is also demonstrated by considering that [Nombre01 064] voted in favor of the award of the 400,000 lines and that months after that vote, he received the gift (dádiva) that he shared with [Nombre01 033]. The distribution of the monies reflects a strategy aimed at concealing their origin. Moreover, [Nombre01 064] received a sum similar to other accused but doubled, which reveals that the corruptors had been informed that they were paying two officials and not one. In addition, there is coincidence in the modal and temporal circumstances for the delivery and receipt of the gifts paid to the three directors of ICE, namely [Nombre01 022], [Nombre01 068] and [Nombre02 064], as well as to [Nombre02 001] and [Nombre01 018]; <span style="font-family:Arial; font-weight:bold; font-style:italic">l)</span> there is evidence that although the quantity of 400,000 cell lines was formally mentioned until December 5, 2000, that information was already known beforehand by the corruptors, just as [Nombre01 064] stated. There is a note from November 10, 2000, where [Nombre01 098] points out to [Nombre02 041] that although the announcement made by [Nombre02 095] about the future public tender for the 600,000 GSM cellular lines is favorable, they had to maintain pressure so as not to allow them to continue favoring Lucent and Ericsson, since it seemed that ICE planned a purchase of 200,000 to expand the current ones (TDMA). This reveals that the corruptors were informed about what was happening and how, despite the announcement of the migration, they thought that [Nombre01 091] should not sit idly by, since it had to accelerate that process (as also suggested by the note of November 22, also sent by [Nombre01 098] to [Nombre01 041] in relation to the appointment of [Nombre02 001],<span style="font-family:Arial"> </span><span style="font-family:Arial"> evidence No. 396), apart from noting that if a direct purchase of 200,000 TDMA lines was made, 400,000 lines in GSM technology would remain. According to the judges, that is the information that [Nombre01 041] and [Nombre01 078] were handling by November 22, 2000, and therefore, it is ruled out that [Nombre01 064] erroneously fabricated his statement, anticipating information that would not be known until December 5, 2000. <span style="font-family:Arial; font-weight:bold; font-style:italic">m)</span> [Nombre01 091] sought to be treated with equity and felt the need to defend its rights. In the session of December 5, 2000, in which the comprehensive telecommunications plan project was approved, a proposal was presented to acquire 600,000 lines, specifically, 200,000 from the companies Lucent and Ericsson in TDMA technology and 400,000 that would be awarded to [Nombre01 091], Siemens, Nortel, Ericsson and Lucent with GSM technology. In a second stage, 200,000 mobile lines would be approved for the third generation (3G) tender. It is observed how, although a move to GSM is proposed through the award of 400,000 lines and the inclusion of [Nombre01 091] as a bidder, a “right of floor” is also respected for the companies Lucent and Ericsson, which denotes an ambivalent procedure by ICE, by continuing to promote the purchase of TDMA lines. The evidence also demonstrates that [Nombre01 091] had been denied participation in the contracting of cellular lines, which changed as of February 27, 2001, after the remunerative promises were made, when it was considered by the board of directors of ICE as a possible bidder in the acquisition of the 160,000 cellular lines by direct contracting, given that by then the contracting of the 400,000 lines was already underway. Likewise, the evidence allows confirming that on August 28, 2001, the contract for the 400,000 cellular lines was awarded to [Nombre01 091], a session in which [Nombre01 064], [Nombre01 068], [Nombre02 022], Nombre02 as well as other public officials from ICE were present. <span style="font-family:Arial; font-weight:bold; font-style:italic">n)</span> It was ruled out that [Nombre01 064] was paid solely for the award of the 160,000 lines, since this accused was not present at session No. 5271, in which the matter was decided. <span style="font-family:Arial; font-weight:bold; font-style:italic">o) </span>It was demonstrated through abundant evidentiary elements—expert, documentary and testimonial—that [Nombre01 064] received money from [Nombre01 060] and transferred part of it to [Nombre02 033]. So far, the reasons of the trial court for granting credibility, according to its criterion, to the statement provided by [Nombre01 064] at trial. <span style="font-family:Arial; text-decoration:underline">Having analyzed the foregoing indications, the undersigned appeals judges consider that the conclusion of the </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">a quo</span><span style="font-family:Arial; text-decoration:underline">, in the sense that the statement of [Nombre01 064] is credible regarding the promise of a gift that was made to him in relation to the contract for the 400,000 GSM lines, is contrary to the rules of sound judicial criticism</span><span style="font-family:Arial">. It is undeniable that [Nombre01 064] gave a statement from the beginning of the present process; however, <span style="font-family:Arial; text-decoration:underline">it was many months and several investigative statements later</span> that he stated having received a promise of a gift from [Nombre01 078] and [Nombre01 041] related to the contract for the 400,000 GSM telephone lines. Now, it is not that [Nombre01 064] initially had remained silent about the cause of the economic remuneration received, and then later decided to comment on it, <span style="font-family:Arial; text-decoration:underline">but rather that he had expressly and repeatedly indicated to the Public Ministry that the monies received were offered and delivered to him after the award, as a “reward”</span><span style="font-family:Arial">. That is, [Nombre01 064] ruled out that a promise of a gift had been made to him prior to the award of the mentioned contract. As can be inferred from the review of the audio and video recordings of the trial, specifically what is related to the testimony that [Nombre01 064] gave before the trial court, Nombre02 as well as from the appealed judgment itself, we have that on several occasions and based on Article 343 of the Code of Criminal Procedure, the statements that the cooperating accused gave before the requesting body were incorporated where they contradicted what he was stating at trial, <span style="font-family:Arial; text-decoration:underline">establishing with crystal clarity that from September 30, 2004, and </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">repeatedly</span><span style="font-family:Arial"> (cf., e.g., the expanded statement he gave on October 15, 2004, second paragraph of folio 9.003, incorporated by reading at the trial as recorded at f. 14.996 front of the judgment, volume XXXI), [Nombre01 064]<span style="font-family:Arial; text-decoration:underline"> stated that it was after the award and even when the execution of the contract was taking place, that he was contacted to notify him that there was “a reward” from [Nombre01 091]</span><span style="font-family:Arial">. As can be concluded without effort, the cooperating accused was categorical in ruling out that a prior promise had been made to him, and it was later, on May 9, 2005, <span style="font-family:Arial; font-style:italic; text-decoration:underline">when he indicated something completely different for the first time</span><span style="font-family:Arial">, specifically, that [Nombre01 041] and [Nombre01 078], in late 2000 or early 2001, at the [Nombre01 094] restaurant, made him a promise of a gift in exchange for him helping [Nombre01 091] with the migration to GSM technology, with the implementation of public tenders instead of direct contracts and with his favorable vote for the company in the contract for the 400,000 lines (cf. f. 2.992 to 3.010 front, volume VIII). At the request of a party, the court incorporated the second paragraph of folio 2.999, which, in what is relevant, indicates: <span style="font-family:Arial; font-style:italic">"So then Mr. [Nombre01 078] arrived in the company of Mr. [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, an exchange of introductory phrases took place and Mr. [Nombre01 078] tells me that they are worried, that they have increasing certainty that the public tender will be bypassed to harm [Nombre01 091]. He also told me that Mr. [Nombre01 046] had indicated to them that he had the power to bring down said tender, even with the help of Nombre63, for those reasons they ask for my help so that the process is not aborted and that if everything goes well the company would give me a gratuity. I asked him what it was that I had to do, so they indicated to me that simply what they needed was for the tender to take place, I asked them if there was anyone I needed to speak with and they told me no, that the only thing they needed was for the tender not to be aborted. Subsequently, I asked them what the reward consisted of and they indicated to me that between one point five percent (1.5%) and two percent (2%) of the tender, outside of expenses..."</span><span style="font-family:Arial"> (Transcription done at f. 15.001 of the judgment, volume XXXI). <span style="font-family:Arial; text-decoration:underline">That is, it was approximately eight months after having given his first statement, that [Nombre01 064] stated that there was a promise of a gift prior to the contracting of the 400,000 lines, which he shared with [Nombre01 033]</span><span style="font-family:Arial"> <span style="font-family:Arial; text-decoration:underline">.</span><span style="font-family:Arial"> The statement in which [Nombre01 064] changed his version of events <span style="font-family:Arial; text-decoration:underline">began to be given on the same day that he signed an agreement with the Public Ministry for an abbreviated procedure to be applied</span><span style="font-family:Arial">, in which the requesting body conditioned its consent on [Nombre01 064]’s expanded investigative statement meeting certain terms, namely, <span style="font-family:Arial; font-style:italic">“… to clearly set forth the existence of negotiations and of a promise of delivery of money prior to the approval of the contract for the 400K between the Instituto Costarricense de Electricidad and the company [Nombre 091].

Likewise, the accused [Nombre01 064] will disclose the name of a reference witness, who has knowledge because the accused [Nombre01 064] informed [Nombre02] of the promise of money delivery prior to the approval of contract [Nombre64 091]. Furthermore, he will make an even broader statement regarding the delivery of money to the co-accused [Nombre01 033], clarifying each of the transactions made regarding the money corresponding to the gifts or payments from [Nombre01 091]. He will also refer to the knowledge that the co-accused [Nombre01 033] had of the promise of gifts or payments made by [Nombre01 091], as well as his approval for [Nombre01 064] to receive said monies... The agreed-upon sentence will be four years in prison without any type of reduction." (F. 2, evidence No. 308, prior agreement document for application of abbreviated procedure). It is true, as the trial court points out, that the abbreviated procedure was not applied for reasons beyond [Nombre01 064]'s control and that the agreed sentence did not allow for the application of benefits such as a conditional execution of the sentence. This circumstance, however, also does not allow the conclusion that [Nombre01 064]'s first version was false and that the second was true, especially considering that the latter was given precisely under the protection of a negotiation with the Public Prosecutor's Office, which, from then on, conditioned the abbreviated procedure on [Nombre01 064] including certain information in his account (specifically, regarding the promise of a gift made to him before the award, the identification of a reference witness, and greater details about [Nombre01 033]'s conduct, his knowledge of the promise, and the consent he gave for [Nombre01 064] to receive the money). That is to say, upon negotiating with the requesting body, [Nombre01 064]'s account changed drastically on a core aspect, specifically, regarding the existence of a promise of a gift prior to the award. It is an inconsistency that acquires major importance when assessing the credibility of the statement, not only because the configuration of the crime—aggravated corruption by improper bribery—depends on the demonstration of the prior promise made by [Nombre01 041] and [Nombre01 078], but because, contrary to what was indicated by the lower court, its existence is supported solely by the word of the collaborating accused. According to the appealed judgment, what [Nombre 064] stated is true because all those involved were in the country by Saturday, December 2, 2000. This, by all accounts, is unsustainable, since from that single piece of evidence (the presence of [Nombre01 041], [Nombre01 078], and [Nombre01 064] in national territory) one could not reasonably and naturally conclude that the meeting existed, much less that the promise was made. It is important to note that while there is evidence that [Nombre01 078] and [Nombre01 041] met on December 1, 2000, with [Nombre02 001] and other people (cf. folio 6 bis voucher and folio 7 invoice, folio 1 settlement, evidence No. 81 which this Chamber has reviewed) and that [Nombre01 041] also met with [Nombre02 001] on November 29, 2000 (cf. also evidence No. 81), this is absolutely irrelevant for the matter at hand, since, as the same court acknowledged, these meetings were frequent, and it cannot be asserted that they were aimed at making illicit proposals to those public servants (f. 16,112 front, volume XXXIII). Therefore, it is a mere supposition by the judges who subscribe to the majority vote to conclude that the meeting that took place one day before the one described by [Nombre02 064] allows demonstration that "... the corruptors were resorting to a similar strategy for remunerative proposals, not only with respect to [Nombre01 064] but also another co-accused and ICE official..." (F. 16,129 front, volume XXXIII). The same must be held regarding the meeting between [Nombre01 064] and [Nombre01 033]. The fact that both were in national territory, an indication verified through documents accounting for their migratory movements, does not even allow establishing, with a degree of probability, that said meeting existed. It is important to remember that in this proceeding, [Nombre01 064] is not a witness, but a collaborating accused who, as such, is not obliged to tell the truth or testify under oath. His contribution, moreover, is not gratuitous. It is articulated knowing that, if he satisfies the expectations for which the exercise of criminal action against him was suspended (Art. 23 C.P.P.), he will obtain, as a benefit or reward, the extinction of that action. Although that circumstance alone would not allow denying credibility to his words, the truth is that they must be weighed with extreme caution, to the point where it is essential to have additional evidentiary elements that ratify his words. In the same vein, [Nombre54] points out: "For some, when an accused person informs on others, stating that they committed the act with him or that they intend to commit more crimes, the authorities are obliged to act with the utmost prudence and caution, without disregarding that information, but granting it only the value corresponding to a notitia criminis. If an accused person decides to reveal data that another would guard jealously, how many reasons can motivate that conduct? Therefore, it has been said, with good reason, that the system should establish all necessary guarantees to ensure the veracity of the data, confirming the information through other means. However, in many cases, the collaborator's revelations are easily accepted as authentic indications of criminal responsibility, without regard for the informant's personality, the low credibility he deserves, or the prior contradictory statements he may have made. Although sometimes the collaborating accused does not say everything he knows or does not assume all the responsibility that corresponds to him, it may happen that, due to an accommodating attitude, his revelations deserve much more credit than any exculpatory version offered by those who are informed upon. In certain cases, this can lead to a lack of depth in police inquiries and, closely related to this, a stagnation of investigative techniques." ([Nombre54], op. cit., p. 595). This is a concern that is not exclusive to our environment. In other countries where the figure of the "repentant" has been incorporated in the context of the fight against organized crime, questions are also raised regarding the procedural assessment that can be made of their statements and the need, for the purpose of deeming the account plausible, for its verification through other means of evidence: "The simple denunciation of other individuals made by the self-declared guilty accused, who offers his testimony incriminating other members of the criminal organization seeking a more lenient punitive treatment, raises serious evidentiary problems. The informing statement of a co-accused can hardly be identified with that of a procedural witness, insofar as the interrogation of the accused is built as a means of defense that allows him not to answer the questions posed and, even, to lie about the facts, while the procedural witness is obliged to tell the truth about the facts under the threat of being charged with the crime of perjury. The introduction into legal systems of the 'hybrid figure of the accused-witness' opens the door to the danger of the 'degeneration of the evidentiary system.'" ([Nombre15], op. cit., p. 29.). In this particular case, what is being assessed is whether the testimony given by an accused regarding the existence of a fact (the promise of economic remuneration prior to the award) is credible, when he himself throughout the proceeding had expressly denied the point, stating emphatically that the sums received were offered to him after the award of the contract for the 400,000 cellular telephone lines. This Chamber has no doubts about the discomfort experienced by the top executives of [Nombre01 091] during the years 1999 and 2000, since due to the use of captive technologies—TDMA—in Costa Rica, [Nombre01 091] was practically excluded from the mobile telephone market. Nor does it have doubts about the strategy that, at least formally, the cited company designed to resolve that problem ([Nombre01 124]'s course of action) and which contemplated approaches to key figures in different spheres of national activity; about the links between [Nombre01 064] and [Nombre01 033], as well as between the former and other public officials with the company [Nombre 091] and its representatives. It was also demonstrated that [Nombre02 041], through two corporations ([Nombre01 058]. and [Nombre01 114].) transferred funds to a series of officials linked to the telecommunications field after [Nombre02 091] obtained the award of the 400,000 lines, officials among whom [Nombre 064] figured, who, it was also demonstrated, transferred part of those funds to [Nombre01 033] or to individuals or legal entities close to him. However, what cannot be established with a degree of certainty is that [Nombre01 041] and [Nombre01 078] made a promise of economic remuneration to [Nombre 064], at the [Nombre 094] restaurant, located in Alajuela, before the contract for the 400,000 lines materialized and, even less so, that this promise was made in exchange for that public official acting in three areas, specifically, favoring migration to GSM, promoting the use of public tenders in replacement of direct contracting, and voting favorably for [Nombre01 091] in the aforementioned contract. Similarly, except for what was stated by [Nombre 064], it cannot be taken as demonstrated with certainty that he relayed said promise to [Nombre01 033] the following day, under the terms explained by the requesting body. One cannot lose sight of the fact that regarding that fact (the promise of a gift made in December 2000), the only thing the lower court had was the statement of the collaborating accused, which clearly cannot be considered reliable because it has varied over time; because the changes occurred precisely when negotiating with the Public Prosecutor's Office, to the point that the abbreviated procedure was conditioned on what [Nombre01 064] would declare regarding the promise of a gift; because the changes do not concern tangential issues, but quite the contrary, a core fact that had not gone unnoticed by the collaborating accused himself, as he had for months ruled out any offer prior to the mentioned contract, and finally, because [Nombre01 064] was a public official prone to receiving irregular economic remunerations ("bonuses," according to him), originating from individuals and legal entities with which he had ties due to his position, whereby it also cannot be ruled out that things happened in other ways not contemplated in the accusation, e.g., under the terms he narrated for months (in which case the crime of accepting a gift for an act performed would be configured), or in other ways also condemned in our legal system (e.g., that it was he who demanded the payment of the economic remuneration, an alternative that is also not dismissible considering that [Nombre01 064] himself in the debate acknowledged that before the acts investigated here and upon insistence from [Nombre01 046] and [Nombre01 033], he "suggested" to [Nombre01 041] and to [Nombre02 078] himself "the convenience of paying" [Nombre01 046] what they had promised him in the past; cf. f. 14,940 and 14,941 front, volume XXXI). It is important to emphasize that [Nombre01 064] had criminal responsibility in the investigated acts and, to that extent, his contributions as a collaborator are conditioned on his interest in satisfying the expectations of the requesting body. His testimony (term used in an improper sense, since he did not testify under oath) cannot be considered sufficient evidence to take the existence of a prior promise of a gift as proven (an element that is decisive for speaking of a crime of aggravated corruption by improper bribery), given that, moreover, contrary to what the appealed judgment states, there are no other indications confirming that point. It is important to note that for this Chamber, by reason of the principle of evidentiary freedom contemplated in Article 182 of the Code of Criminal Procedure, there is no impediment to taking a fact of interest for the resolution of the case as proven based solely on the information provided by the collaborating accused when it suffices on its own; however, this is not the case here, since, as has been explained, there are substantial questions about the account provided and its veracity, which, despite the efforts made by the requesting body, could not be eliminated. There are a series of indications (presented previously) that can certainly be taken as demonstrated without relying on [Nombre01 064]'s statement, namely, that between 1999 and 2000 the representatives of [Nombre01 091] in the country considered that the company was subject to irregular treatment by ICE; that a strategy was devised to resolve that problem, which contemplated approaches to important people in different spheres; that although the need for ICE to migrate to GSM technology was foreseen and the institution had taken some steps in that direction, by the year 2000 it was not a consolidated decision; that several public officials related to the telecommunications field and with ties to [Nombre01 091] received, in similar circumstances and through the same channels ([Nombre01 058]. and [Nombre 114].), sums originating from [Nombre01 060] and, of course, that [Nombre01 091] secured the contract for the 400,000 lines. Now, from all these indications one can reasonably derive that the public officials received money from said company, and one could even suspect that those funds had some relationship with the award of said contract; however, what is not plausible is to assert with certainty that those funds, all transferred to the public officials after the award, were to fulfill a promise that was made to them previously and separately to each one of them, in exchange for supporting said company, especially considering that, as was demonstrated, [Nombre01 091] was favored with the contract not by chance or due to irregular acts of the accused, but for meeting all the requirements of the bidding documents, which was not the case for the competition (proven fact No. 41). That is to say, regarding the existence of a prior promise made to [Nombre01 064] (and which the lower court uses to establish that the other accused who held the status of public officials were also made a similar proposal), the only evidence available is the word of that collaborating accused, a person who for months expressly denied such a point. It is important to note that in the debate, [Nombre01 064] was questioned regarding this and other inconsistencies detected in his version. He, despite acknowledging having said that the offer was after the award, denied having lied on September 30, 2004, arguing that at that time he had only tried to "cover or self-protect" himself, and that he later was "specifying" (f. 14,962 and 14,986 front, volume XXXI). He even stated that "... it was obvious that that assertion was not going to be sustained on its own; that is why the Prosecutor's Office told me that it could not be that way, that I should justify it, and that is when I clarified things, I said that the offer was not after the award but before." (F. 14,962 front of the same volume). And it is that despite [Nombre01 064] insistently denying having falsified the facts, it is indubitable, evident, that one of the two versions he offered does not correspond to reality. Either he lied when stating that there was no prior offer, or he lied when stating that there was one, making it impossible to establish, based on such a questionable and self-interested testimony, whether a promise of economic remuneration was actually made to him before the contract for the 400,000 lines materialized, or if such an assertion only responds to his interest in satisfying the Public Prosecutor's Office to obtain the procedural benefit promised to him. For the trial court, the verification of [Nombre01 064]'s words must be regarding the general aspects and not with respect to each of the facts narrated, since aspiring to the latter would make the opportunity criterion unproductive. Such a conclusion, in this particular case, is not acceptable, since the statement of the collaborating accused has been inconsistent on a fact that, while specific, is the most important one in his entire version, namely, the existence of a promise of a gift prior to the abbreviated competitive bidding procedure No. 1-2001. Thus, it is not possible to ignore the above and deem the account plausible solely because on some general facts, it coincides with other evidentiary elements (e.g., regarding the outlook [Nombre01 091] faced in a market working with captive technologies). It must be insisted that although Article 182 C.P.P. contemplates the possibility of proving any circumstance of interest for the case by any permitted means of evidence, which would include the statement of the collaborating accused, according to the rules of sound criticism, grounding a judgment of certainty in an account that has been coherent and consistent is not the same as in one that is openly contradictory regarding the core fact charged (the promise of a gift), a contradiction that, moreover, arose upon reaching an agreement with the requesting body, first to apply an abbreviated procedure and then an opportunity criterion. Added to this, [Nombre01 064]'s statement presents other inconsistencies that are impossible to ignore. For example, on September 30, 2004, [Nombre01 064] declared that, after the first money transfer by [Nombre01 091], he delivered to [Nombre01 033] in his office, and in cash, the amount of $370,000. However, it turned out that the amount [Nombre01 091] had given him on that occasion was only $225,000. Questioned on this, [Nombre01 064] stated that the confusion was involuntary "...due to the tribulations of the events" (f. 14,987 front) and that from those $225,000, what he transferred to [Nombre01 033] in his office was the sum of $130,000 in the following manner: "...a certificate for $100,000 and 6 for $5,000..." (f. 14,987 front). The court, in its majority vote, accepted [Nombre01 064]'s excuses, after considering that the documentary evidence allows confirming that the collaborating accused delivered the aforementioned certificates to [Nombre01 033]. However, it is one thing to take as demonstrated that this transfer of certificates took place, and quite another to take as demonstrated the concept for which this transfer occurred, a point that can only be accredited through [Nombre01 064]'s words, and to that extent, it is crucial that his account be plausible. It is reiterated, regarding the prior promise of a gift and [Nombre01 033]'s intervention in the acceptance of that promise, the only evidence that exists is [Nombre01 064]'s word (who is not a witness, but an accused whose legal situation depends on what is resolved in this proceeding), hence any inconsistency appreciated in it must be assessed with extreme care. In this context, it is striking that this deponent incurred in "confusions" of a not negligible magnitude, like the one already noted, since one does not hand over $370,000 dollars in cash from a criminal act every day, to the [...]. Along these lines, it is striking how [Nombre01 064], when questioned by the defense attorneys of the accused on this and other important topics, stated he did not remember. It is impossible to ignore that he says he does not remember, for example, if in his statements before the requesting body he had insisted that the "bonus" was after the award, or if he had told [Nombre01 115] about his agreement with [Nombre01 033] or with [Nombre01 091] (f. 14,990 front), matters that are elementary and crucial in his testimony. Added to this, note that—according to [Nombre01 064]—the promise of a gift was not only related to migration to GSM technology, or the use of public tenders instead of direct contracting, but to the award of the contract for the 400,000 lines (f. 14,963 front); however, the abbreviated competitive bidding procedure for the lease with option to purchase of 400,000 GSM cellular lines arose because the Office of the Comptroller General of the Republic ordered it some time after, according to [Nombre01 064], the promise of economic remuneration was made. Although, as the court indicates, by early December 2000 some proposal had already been developed, which is precisely the one discussed on the 5th (session No. 5249), the majority vote chooses to ignore that it spoke of 600,000 lines, 200,000 to expand the current ones—with TDMA technology—and 400,000 in GSM technology to be obtained not by public tender but by direct purchase from 5 providers ([Nombre01 091], Siemens, Nortel, Ericsson, and Lucent), being that the Comptroller's Office was the one that after that date (and, therefore, after the promise of a gift was allegedly made to him according to [Nombre01 064]) refused to authorize more direct purchases, opening the door to an abbreviated competitive bidding process. To that extent, it is hard to believe that the promise of remuneration that [Nombre01 064] placed at the beginning of December 2000 contemplated, as he said, a favorable vote regarding a competitive bidding procedure that at that time neither existed nor was foreseen (again, what had been designed regarding the 400,000 GSM lines was direct purchase from various providers). In summary, although there are evidentiary elements that allow confirming some points of the account given by [Nombre01 064] (e.g., that after the award, [Nombre01 091] gave him a significant sum of money), on the core issue (that is, having received on December 2, 2000, a promise of economic remuneration that he relayed to [Nombre01 033] on the 3rd of the same month and year; cf. proven facts identified with numbers 85 to 92), his account not only finds no support in other evidence, but has also been contradictory, to the point that it is impossible to rule out that things also occurred in another way, namely, that it was he—[Nombre01 064]—and other public officials who demanded the delivery of economic remunerations from the top executives of [Nombre01 091]; that these occurred after the contract for the 400,000 lines was awarded without any prior promise (a thesis which, it is reiterated, he maintained for several months), or that the promise, if it existed, had a different content from what [Nombre01 064] mentions. For the undersigned, [Nombre01 064]'s word is simply implausible and, therefore, is insufficient to take as demonstrated the reason why the public officials received payments originating from [Nombre02 060]. It is important to emphasize that the granting to [Nombre01 064] of an opportunity criterion in no way relates to the credibility that can be given to his testimony. In this state of affairs, it is incomprehensible why the Public Prosecutor's Office, knowing that this accused, who was prone to receiving economic remunerations, provided them with two different versions regarding such a crucial matter as the promise of economic remuneration, opted to apply an opportunity criterion in relation to him, setting aside the referenced circumstances that, in the end, just as happens now, make it impossible to deem his words credible. Furthermore, this Chamber has also undertaken the task of listening to the audio and video recording of the statement of this collaborating accused in the debate, determining that the answers he gave to a significant number of questions asked by the defense attorneys of the other defendants were not spontaneous. Note that in multiple cases, before answering, [Nombre01 064] spoke with his defense attorney, lawyer Edwald Acuña Blanco, a professional who was seated next to him. This situation was also subject to questioning not only because it was repeated, but because it occurred in response to questions whose answers could not generate responsibility for [Nombre01 064] in relation to criminal acts other than those negotiated with the opportunity criterion. However, the court refused to correct the situation, arguing that it could not be ensured that attorney Acuña Blanco was recommending what [Nombre01 064] should answer (cf., e.g., the recording corresponding to September 16, 2010, file c0002100916102255.vgz, from 10:42:10 onwards). This is a conclusion that this court does not share. [Nombre01 064], as a collaborating accused, had the right to speak privately with his lawyer before giving a statement, for the latter to advise him. He also had the right to declare in his presence (Art.

82(e), 93, and 95 of the Criminal Procedure Code) and, of course, to the fact that Mr. Acuña Blanco, should he deem it necessary, would recommend that he remain silent in response to questions whose answers could potentially involve him in some liability for acts other than those negotiated with the requesting body. What constitutes an abuse of those rights is that any accused (and even more so [Name01 064], who would obtain a significant procedural advantage in exchange for his statement) limits himself to communicating the answers of his advisor. It is naive to believe, as the majority vote does, that the conversations that took place between the accused and his lawyer after each question and before answering were not intended to guide his answers—dialogues that, moreover, had no reason to exist in the case of questions related to the facts contemplated, at least formally, in the opportunity criterion, since it was with respect to these that [Name01 064] undertook to cooperate. But even assuming hypothetically that an accused who has decided to testify can do so under such conditions, what cannot be denied is that this conduct adds to the doubts raised regarding the truthfulness of his version, since he was not even capable of responding spontaneously to many of the questions asked of him. Finally, note that apart from the statement of [Name01 064], the only evidence that is somewhat related to the matter of the prior promise is judgment No. 586-07, issued on October 16, 2007 against [Name 068], in which he is convicted for having accepted a promise of a gift (dádiva) from [Name 105] (Evidence No. 747). However, it is a judgment issued years after [Name01 064] rectified his statement (and after, based on it, the requesting body adopted a particular theory of the case) within the framework of an abbreviated procedure, where the acceptance of charges by [Name01 068] had a formal character, and therefore it does not carry sufficient weight to render a narrative as questionable as the one already set forth plausible. Indeed, if the requesting body's intention was to support the testimony of [Name01 064] with that of [Name01 068], or with that of any other accused who had made an agreement with the requesting body (e.g., [Name01 105]), it should have offered their statements to be received at the time of the trial and not seek to assign to a judgment, which is even quite sparse regarding the point in question—the acceptance of the promise of a gift—an evidentiary significance it does not possess, since it is not a document containing a statement given with all the formalities provided for by the legal system to be incorporated by reading into the trial and examined in this process, as if it were a jurisdictional evidentiary advance. In addition to this, one must not lose sight of the fact that while [Name01 064] speaks of a promise of a gift made to him starting in December 2000 with three specific objectives (migration to GSM, public bidding instead of direct contracting, and the award of the 400,000 lines), regarding [Name01 068], the judgment only alludes to a promise that was articulated when the bidding process was already underway. Hence, these are not identical situations, where the demonstration of one can lead to the existence of the other. Regarding the statements of [Name01 041], acknowledging having made payments to public officials, and that of [Name01 001], accepting having received them, it is important to note that neither one nor the other indicated the reason for which the payments were made or received. That is, the doubt remains whether the amounts were to fulfill a promise of a gift made before the award (which leads us to doubt whether that promise of a gift described by [Name01 064] and the requesting body in relation to the public officials involved actually existed), or if the payments responded to other equally plausible dynamics, which, besides not being contemplated in the accusation, would fit into different criminal types (e.g., simple bribery, acceptance of gifts for a completed act, or extortion by a public official). It is important to add that the Public Prosecutor's Office, on the occasion of the oral hearing held before this chamber, provided a document entitled “Written Record of the Oral Presentation by the Public Prosecutor's Office/Vista [Number 091]”, in which it affirms that the trial court, in its majority vote, analyzed a large amount of both documentary and testimonial evidence that allows verification of the truthfulness of [Name01 064]'s statement on a series of points, the same ones the requesting body set out in 24 points, namely: 1) [Name01 091] used numerous public opinion-shaping instruments to explain his interest in migrating to new trends. This was the beginning of a public discussion that joined the unmet demand. Furthermore, [Name01 091] [Name11] maintained that he was subject to discriminatory treatment by ICE and questioned the purchases made from other companies; 2) by May 2000, the decision to migrate to GSM technology had not been made; 3) there is evidence that [Name02 041] knew what was going to happen regarding the direct contracting of 160,000 lines to [Name02 091], confirming what [Name01 064] said, in the sense that the former called him and asked him to attend the session of the board of directors where an agreement on the subject adopted in the previous session was being questioned, which [Name01 064] did not attend; 4) between [Name01 064] and [Name01 033] there was a close relationship; 5) [Name01 064] and [Name 041] had contact; 6) [Name01 041] acknowledged to [Name 116] that [Name01 058] was a kind of trust. The payer was [Name01 058], not [Name01 091] directly, which ratifies what was stated by [Name 064] regarding the inquiry he made to [Name01 041] about that corporation; 7) regarding the content of the remunerative promise, [Name01 064] mentioned that it was in exchange for migrating technology, promoting the bidding, and voting affirmatively on [Name01 091]'s offer. For his part, [Name01 128] described how the company contacted [Name02 018] to talk about eliminating the contracts, also pointing out that [Name01 018] asked him to speak with his superiors. It is also recorded that an amount of money was sent to [Name01 018] through the same channel and at the same time as to [Name01 064], and there is documentary evidence that shows the discomfort of one of the managers of the corrupt plan, which is associated with the three objectives already mentioned; 8) regarding the promise that [Name01 064] describes, there is evidence that money was transferred to this accused through [Name01 058]; 9) when [Name01 064] said the proposal was made to favor migration, this had not yet occurred; 10) regarding the seduction process described by [Name01 064], there is abundant evidence of the meetings, invitations, and attentions of [Name01 091] towards various public officials; 11) [Name01 064] located the offer at the end of 2000, that year being decisive for [Name01 091], as extracted from the complaints he filed and other documentary evidence (e.g., paid advertisements); 12) regarding the meeting between [Name01 064] and [Name01 033], there is documentary evidence that shows how they distributed [Name01 091]'s money; 13) according to [Name01 064], the money was paid for the promise made. This is confirmed by the fact that both he and other public officials were paid through similar means—through [Name01 058]; 14) [Name01 064] said that part of the money was for [Name01 033]. Regarding this, the evidence shows that [Name01 064] received a sum similar to the other public officials but doubled, which reveals that through him payment was made to two officials and not one. The transfer of money from [Name01 064] to [Name01 033] was demonstrated, and it was ruled out that it was a loan, as the latter claimed; 15) and 16) there is evidence confirming [Name01 046]'s relationship with [Name01 091], the transfer of funds from that company to [Name02 046], and the transfer of funds from the latter to [Name01 064]. This confirms the collaborator's statement that [Name01 046] compensated him for having collected from [Name01 091] what was owed to him; 17) there is documentary evidence of the money deliveries from [Name01 064] to [Name01 033] that the former describes; 18) [Name01 064] initially said he had transferred funds to the account of [Name02 110], but later clarified that this was not the case. This is plausible because [Name01 064] provided a document containing the number of said account, and furthermore, the link of that company with [Name01 033] was not even known to people close to [Name01 033]; 19) it was demonstrated that [Name01 064] made a first payment to [Name01 033] with some BICSA certificates belonging to his mother, since his account was being questioned, just as he indicated; 20) it was established that part of the second payment made by [Name01 064] to [Name01 033] was used for the benefit of the latter; 21), 22, and 23) regarding other payments made by [Name01 064] to the then [...], [Number 65] documentary and testimonial evidence showing the path followed by the money and how it ended up in the hands of people linked to [Name01 033], and furthermore, part of those payments were accepted by [Name01 033]; 24) [Name01 064] said that regarding the last payments made to him by [Name 091], he did not transfer money to [Name01 033] because it was difficult since the latter was in Washington and because he believed the distribution was unfair, which—the prosecutors say—the court used to explain why the transfer of funds was cut off (f. 176,960 to 176,965 verso, volume XLIV). For this chamber, the aforementioned indications in no way allow confirmation that the promise of a gift took place in the terms described by [Name01 064] at trial, even less do they allow categorically discarding other equally plausible alternatives that were not charged. And indeed, no one has questioned that the representatives of [Name01 091] were dissatisfied with the treatment they received from ICE (it must be remembered that captive technologies were used in the country and that, therefore, [Name01 091] could not compete); that they denounced the situation and designed a strategy to correct it, one that involved approaching certain public figures, contact that indeed took place and was demonstrated, nor was this unusual. Similarly, it was proven that some public officials, unfortunately, had the habit of receiving and even soliciting favors from companies that did business with ICE, and that this happened before the facts under investigation here. Nor has it been questioned that [Name01 064] transferred funds to [Name01 033], or to natural or legal persons close to him (in fact, there is abundant documentary evidence of the above). However, from this it cannot be derived with certainty that those funds were to fulfill a prior promise, accepted before the award, as the Public Prosecutor's Office stated. This is also not inferred from the fact that several accused were given, some time after the award, similar sums, under similar modal conditions, because with the same scenario, other possibilities are equally plausible. For example, that the monies were accepted by those public officials for acts performed and not for having assumed the commitment to perform future acts (which would constitute the crime of acceptance of gifts for a completed act and would rule out bribery); that those officials, abusing their position or functions, obliged or induced the promise or payment of the pecuniary benefit (extortion by a public official), which, it should be added, would not be surprising, since as we will see later, there were public officials who solicited economic advantages from supplier companies, among them [Name01 064] himself, who acknowledged having made "collection efforts" before [Name01 091] to pay [Name 046]. Also, it cannot be ruled out that a promise existed prior to the abbreviated bidding procedure 1-2001, but that its content was different. The same can be said regarding the actions of [Name01 064] and other directors concerning the matter, since certainly no irregularity was demonstrated in the processing of the contract for the 400,000 lines (which, it is reiterated, began some time after the moment [Name01 064] placed the promise of a gift, and moreover, originated because the Comptroller General of the Republic ordered it and not ICE). We repeat, the only deponent who gave an account of the promise of a gift was [Name02 064], and his testimony, for the reasons noted above, besides being illegal, is unreliable. In summary, since the statement of the collaborating accused is illegal evidence and also implausible, it is necessary to establish the consequences of its hypothetical exclusion, keeping in mind—of course—that, due to the extensive effect contemplated in Article 443 of the Criminal Procedure Code, this exercise must be carried out for all the accused in relation to whom such evidence has been considered, and not only for those who objected to its use by the trial court. For all the foregoing, the second ground of appeal against the judgment formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, defense counsel for [Name01 041], is granted, as well as section two, point D), and section three, point A), of the appeal against the judgment filed by the accused [Name02 033], acting on his own behalf.

**VI.- Consequences of the foregoing resolution**. Although the defects described above (the illegality of the opportunity criterion granted to [Name01 064] and, therefore, of the statement he gave at trial, as well as the violation of the rules of sound criticism in the assessment of that account) have a formal or procedural nature, this court deems it unnecessary to order a retrial. This is because, an exhaustive investigation having been carried out, no possibility is foreseen that in a potential trial, other evidence additional to that already existing could be legitimately incorporated. To that extent, there is also no impediment for the undersigned to proceed to directly resolve what is appropriate in accordance with the provisions of Article 465 of the Criminal Procedure Code, determining, through the analysis of the remaining evidence after hypothetically suppressing the referred statement, which facts that the trial court held as proven remain intact. This is a solution that, although it may be atypical in the case of procedural errors, can be adopted in consideration of the principle of swift and complete justice, since it makes no sense to prolong the process when there are sufficient reasons to believe that the state of things will not change (in this sense, consult resolutions of the Third Chamber numbers 827-F-96, of 12:35 p.m. on December 23, 1996, and 1173-1997 of 9:30 a.m. on October 31, 1997). Accordingly, this analysis will now be carried out for each of the accused.

**1) [Name01 001]**: The court held as proven, in fact No. 131, that [Name01 001] received a promise of a gift from the corrupters in exchange for performing the necessary actions within the scope of his functions as an advisor to the executive presidency of I.C.E. and as the person in charge of the execution of the 400,000-line project, to make that contracting effective by favoring [Name01 091]. Based on this, it considered him the responsible perpetrator of a crime of aggravated corruption by improper bribery. Regarding the crime of improper bribery, it is important to make some observations. The criminal type contemplates two actions, namely: i) receiving a gift or any other undue advantage for performing, in the future, an act proper to his functions and ii) accepting the promise of a retribution of that nature for the same purpose. As [Name 66] points out, referring to Argentine legislation which, on the subject, presents some similarities with ours, receives is "he who enters into material possession of the object given to him" and accepts is "he who admits to receiving in the future what is promised to him," and in both cases the same purpose is pursued, specifically, that the public official perform a future act concerning his functions. Hence it can be maintained that the gift given to compensate functional conduct already adopted by the official does not fall within the limits of bribery (thus, [Name 66]. *Derecho Penal. Parte Especial*. Buenos Aires, Editorial Astrea, Volume II, 1st reprint of the 6th edition, 1998, pp. 272 and 273). In the case of [Name01 001], of the two typical conducts, the second has been deemed as having occurred, because as indicated above, he accepted a promise of economic retribution in exchange for executing—a future act—the necessary actions so that [Name01 091] would be favored in the 400,000 GSM lines project. Specifying the foregoing is fundamental, since as has been held as proven, [Name01 001] received the funds from [Name01 060] after the award of the contract. If the award had already been made, it is not plausible to maintain that [Name01 001] received a gift in exchange for favoring [Name01 091]—a future action—in that award, and therefore, the other situation contemplated in the criminal type (namely, receiving the retribution in exchange for committing to perform a future act proper to his functions) is completely excluded. Having thus ruled out the hypothesis of the receipt of the gift, we focus on what was charged and held as proven, namely, that this accused accepted a promise of a gift prior to that award to favor [Name01 091] in it. In this case, conviction requires the verification of a series of elements of the criminal type that are core: namely, the promise of a gift, its content—the act proper to his functions in exchange for which the promise is formulated—and its acceptance. As explained in the judgment, from folios 15,894 to 15,980 front of volume XXXIII, as well as in the general sections thereof, referring to the general framework surrounding the contracting of the 400,000 GSM cellular lines (f. 15,512 front and following), what is set forth in relation to the alleged corrupters, their identification, the criminal planning, the signing of the consulting contracts by [Name01 058] and [Name01 114], and the channeling of the monies for the payment of gifts and their distribution (f. 15,572 front and following), to hold as proven the promise made to [Name01 001] (and accepted by him), the following was considered: i) [Name01 001] began working at ICE at the end of 2000—which even the defense accepted in closing arguments, f. 15,895, volume XXXIII—and the employment relationship was formalized in January 2001. [Name01 001] was in charge of the abbreviated process 1-2001, corresponding to the 400,000 cellular lines. He was the project coordinator and the one who had a relationship with the supplier company; ii) [Name01 001] admitted before the media to having received money from [Name01 091]; iii) In the evidence, there are three notes prepared on paper with the letterhead of [Name01 058]. In the first, dated November 22, 2000, sent by [Name01 098] to [Name 041]—which the first-instance court understands are [Name02 041] and [Name01 098]—it is stated that efforts are being made so that [Name01 001], recently appointed by [Name01 095], becomes the interlocutor of [Name01 091] in the negotiations on the new expansions, since he is a person with whom progress can be made as he is more political and, due to his recent appointment, is not contaminated by the influences affecting the traditional administration. In the second, dated November 23, 2000, and which is a continuation of the previous one, it is stated that it was achieved that [Name01 001] take the lead in the negotiation from now on, and that consequently, a more flexible position can be expected from the ICE negotiating group. Finally, in the note of November 29, 2000, reference is made to the eventual refusal of the Comptroller's Office to accept [Name01 095]'s proposal to contract with all suppliers, which, according to the note, was [Name01 095]'s idea to avoid objections, but that in any case, it also allowed keeping the intention to expand the then-current system at bay and accelerating the publication of the new GSM bidding, and thus keeping [Name01 091]'s ability to fight alive (all these notes, as this sentence appeals court confirmed, are visible in Evidence No. 686, called “Main File of Case Number 04-7810-0647-PE,” folios 295, 298, and 299 front); iv) [Name01 041] invited [Name01 001] to lunch on November 29, 2000; v) in internal note PE-0102-P of February 22, 2002, sent by the executive presidency of ICE to the different strategic business units, they are informed that for the abbreviated contracting process of the 400,000 lines, a commission coordinated by [Name02 001] was appointed, which would be in charge of the study and award of the project (study of offers, answering clarifications, evaluation in all aspects, award recommendation, consultation and resolution of possible appeals, etc., work that would conclude when the contract was countersigned), a commission that would report to a high-level body composed of [Name01 095], [Name01 122], and [Name01 068]. These are communications that, despite being for internal ICE use, were sent to [Name 041], who kept abreast of what was happening at ICE with the 400,000-line project, especially the functions assigned to [Name01 001], with which he was highly pleased. According to the court, the appointment of [Name01 001] was also part of the plan devised by [Name02 041] (f. 15,902 front); vi) even though, indeed, [Name01 001] did not have the final word on the project, unlike the [Number 10] members of the board of directors (e.g., [Name01 022], [Name01 064], and [Name01 068]; the second having accepted receiving gifts from [Name01 091] and the latter having been convicted for acts of a similar nature), for this company it was essential to count on the project coordinator, thereby guaranteeing that he act in its favor. We speak of someone who had access to any information and whose opinion also carried great weight with officials such as [Name01 095], [Name01 122], and [Name01 068], who ultimately made the decision and brought it to the heart of the board of directors.

It is important to recall, the ruling indicates, that [Nombre01 068], like [Nombre01 105], were convicted for the commission of crimes related to the offering and receiving of gifts (dádivas) from [Nombre01 091]; vii) for the trial court, even before his appointment as an assistant in the executive presidency of ICE and later as coordinator of the 400,000-line project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] as a more political person, with whom progress could be made, hence he was the right person for the proposed plan. Therefore, once he assumed the role of coordinator, in accordance with his duties, [Nombre01 041] and [Nombre01 078] promised him the payment of a gift in exchange for carrying out the necessary actions within the scope of his duties to make the contracting effective, favoring the interests of [Nombre01 091]; viii) the trial court considered that the appointment of [Nombre02 001] took place in November 2000, when the concern about migrating to GSM technology was already within the board of directors, which, coupled with the conflicts that arose between [Nombre01 091] and ICE that were extensively explained in the judgment, made it necessary to have supporters of [Nombre01 091]'s cause, a purpose achieved by promising gifts to [Nombre01 022], [Nombre01 064], [Nombre01 068], and [Nombre02 001] himself. The lower court (a quo) also revisited the topic of the so-called "action proposal" by [Nombre01 124], in the sense that approaches between the company and people from different spheres and factions—business, religious, and political—were advisable, a suggestion that [Nombre01 041], as the representative of [Nombre01 091] in Costa Rica, took up to carry out a plan that included an approach to [Nombre01 001] and other defendants in this proceeding; ix) finally, the existence of abundant evidence was weighed that allows it to be demonstrated with certainty that [Nombre01 001] received and disposed of the gifts from [Nombre01 060]. In addition to the above, when examining the situation of [Nombre 022], the trial court cited other indicia that, as it understands, also compromise [Nombre01 001], namely: x) an official communication (oficio) from [Nombre 126], dated February 17, 2005, where it is recorded that [Nombre01 091] began relations with this company in January 2000 and that, according to its records, [Nombre01 105], [Nombre 064], [Nombre02 001], and [Nombre01 022] used its services, which allows the conclusion that three of the people favored with the trips were ICE officials, trips that occurred after the endorsement of the 400,000-line contract and therefore, are not unrelated to this matter (f. 15,845 and 15,846 front, volume XXXII); xi) the promise of a gift is also proven through the statement of [Nombre01 064]. This, says the trial court, is credible, because despite some differences from his previous accounts, on the relevant points it has remained the same. According to [Nombre01 064], [Nombre01 041] and [Nombre01 078] offered him a reward if he helped in three areas, namely, migration to GSM, use of a tender or public bidding process (licitación o concurso público), and a favorable vote for [Nombre01 091]. The trial court says that if this was a constant practice, it is not strange that they approached other officials such as [Nombre01 022] or [Nombre01 001] (f. 15,862 to 15,864 front, volume XXXII).

Exercise of hypothetical mental suppression of the declaration of [Nombre01 064] and examination of the remaining indicia in accordance with the rules of sound criticism: As Attorney Greysa Barrientos Núñez pointed out in the oral hearing held in this matter, there is no doubt that the representatives of [Nombre01 091] thought that the company was being excluded from the mobile telephone market and that they designed a plan to position themselves in that sphere. As is correctly explained in the judgment, ICE took its first steps with TDMA technology, which is a captive technology, because network expansions could only be made with equipment produced by the same companies that offered that technology and which, in the case of our country, were Lucent Tecnologías de Costa Rica S.A. and Ericsson, companies that were contracted by ICE under the modality of direct purchases, which prevented other companies from having access to that market, e.g., [Nombre01 091], a company that supplied ICE with equipment for fixed telephony, and furthermore [Nombre01 091] offered GSM technology equipment (cf. folios 15,540 and 15,541 front, volume XXXII). Based on the declaration of several deponents (e.g., [Nombre01 095], [Nombre01 128], [Nombre01 132], among others), the appealed judgment concluded that by the years 1999 and 2000, GSM technology was positioning itself in the world; that in 1999 there was a "tense" relationship between [Nombre01 091] and ICE, and that during the year 2000, [Nombre01 091] fought to be one more competitor in the mobile telephone market. This company, in addition to explaining to ICE's board of directors the benefits of migrating to GSM technology (apparently with little success, because although those benefits were admitted, direct contracting continued, some of which [Nombre01 091] also questioned, e.g., the direct contracting of 100,000 lines in the year 2000, f. 15,563, volume XXXII), designed an entire strategy that implied making the matter a topic of public domain and national interest, which is why it contacted people from different spheres, e.g., legislators, opinion makers, politicians, media, and public oversight bodies (e.g., the Contraloría General de la República), among others, in order to denounce what they considered practices lacking in transparency, and as a result of these actions, the majority vote indicates, [Nombre01 095], on October 6, 2000, publicly announced the migration to GSM technology, which in any case occurred a few months later (cf. 15,540 to 15,572 front, volume XXXII). In the same manner, there is no doubt that several public officials received sums of money from the cited company, under similar circumstances of mode and time. This, however, is not enough to take as proven, as the appealed majority vote did, with a degree of certainty and not probability, that the payments made some time after the award were the product of a promise of retribution formulated previously and accepted by [Nombre01 001], in exchange for him executing acts proper to his position to favor [Nombre01 091] with the 400,000-line contract. According to the appealed judgment, the appointment of [Nombre01 001] was part of the corrupt plan. However, upon examining the issue, it is easily established that this conclusion is not derived from the evidence and therefore, violates the rules of sound criticism. The designation of [Nombre01 001] was made by [Nombre01 095], a person who was never involved in the criminal plot. Furthermore, as [Nombre01 095] explained, what he sought with that designation was to have a person more willing to dialogue, who would allow peace to be recovered after the events that occurred with the so-called electrical combo (combo eléctrico). Thus, [Nombre01 095] indicated: "I directly appointed [Nombre01 001] myself, he arrived at the institution as a specialist in conflict resolution and helped a lot in the process of recovering labor peace following the events that occurred with the electrical combo. [Nombre01 001] arrived very close to my arrival at ICE, part of the problems the institution had at that time was satisfying electrical service and telecommunications. I met [Nombre01 001] at the National University, in the School of Planning, he introduced himself to me, described his characteristics and skills, and I believed he could help us recover social peace in the institution. I did not ask for references for him, the interview was enough for me. It seemed to me that he had a lot of capacity in the topic of conflict resolution and listening to positions and providing solutions to conflicts, and Nombre02 demonstrated it. I was looking to rescue labor peace in the institution and that is why [Nombre01 001] seemed good to me. I did not know if he had knowledge in telecommunications; he was an advisor to the Executive Presidency, he coordinated meetings with the different union groups, and perceived the concerns of those groups." (Nombre67. 14,712 front, volume XXX). The same trial court recognized that it was [Nombre01 095] who brought [Nombre01 001] to work at the institution in the last months of the year 2000, with his designation as Executive Assistant in the Executive Presidency being formalized in January 2001 (f. 15,894 to 15,896, volume XXXIII). For all of the above, the majority vote errs in pointing out that even before his appointment and later as coordinator of the 400,000-line project, [Nombre01 041] and [Nombre01 028] knew [Nombre02 001] as a more political person and therefore, suitable for the proposed plan, to the point of going so far as to maintain that the designation of this public official was part of the strategy followed by the corrupters. On the other hand, although—indeed—[Nombre01 001] was the person in charge of abbreviated process (proceso abreviado) 1-2001 corresponding to the 400,000 cellular lines, it is important to note that this originated in the year 2001, not out of the interest of ICE or its leaders, but because Nombre02 was proposed by the Contraloría General de la República, and furthermore, that circumstance does not demonstrate that a promise of economic retribution was made to him at the end of 2000 or beginning of 2001, as the trial court asserted. Nor is this extracted from the lunch that [Nombre01 041] had with [Nombre02 001] on November 29, 2000, or from the contacts that existed between the cited public official and the employees of [Nombre01 091], since, as the same trial court accepted and was demonstrated with abundant evidence, which even documents the abuses by public officials who requested royalties (regalías) from supplier companies for some time (e.g., the case of [Nombre01 022]), that type of meeting was frequent (f. 16,112 front, volume XXXIII).

Nombre11 in this line of ideas, it is also clear that [Nombre01 001] accepted before a national television channel having received money from [Nombre01 091]; however, he never explained on what account. In this way, the only thing that can be derived from the cited evidence is the acceptance of the money, which, one does not omit to indicate, was also proven through abundant documentary evidence; however, it is not an indicium from which it can be derived, as a certain fact, that a promise of retribution prior to the award was made to [Nombre01 001]. The same can be noted regarding the notes examined in the judgment and mentioned above. From the first of them, dated November 22, 2000, what is inferred is that the appointment of [Nombre01 001] was the responsibility of [Nombre01 095], with which, it is reiterated, it could not be affirmed that the cited designation was also part of the criminal plan. Moreover, what that note indicates is that the designation sought to accelerate things in ICE's expansion plans, both in fixed and cellular telephony, and that negotiations were underway for [Nombre01 001] to be [Nombre01 091]'s interlocutor in negotiations on new expansions, since being a "more political" person and due to his recent appointment, he would not be contaminated by "the influences that affect the traditional administration," hence it was possible to advance more. As can be observed, it is a note that merely alludes to the characteristics of [Nombre01 001] as a negotiator, even favorable to the interests of the defendant to the extent that he is considered free of influences, and from which, moreover, it is not inferred, not even remotely, that there was a promise of economic retribution, or that it involves at least a public official who was willing to lend collaboration to the company with the contract so many times mentioned, especially if one considers that in the evidence analyzed, mention is made of both fixed and cellular telephony. As if the above were not enough, one must take into account that as of November 22, 2000, the 400,000-line contract had not come into legal existence and that, therefore, [Nombre01 001] had not been designated as the person in charge of executing the project. The same applies in relation to the note dated November 23, 2000, in which it is simply stated that [Nombre01 001] will be the one to lead the negotiation with [Nombre01 091] and there is talk of direct contracting with that company, aspects that do not contribute to the demonstration of the prior promise in relation to the 400,000-line contract, or to the demonstration of the content of that promise. Finally, regarding the note of November 29, 2000, we are talking about a missive in which "[Nombre02 098]" (we understand, [Nombre01 098]), communicates to "[Nombre01 041]" ([Nombre01 041]) the following: 1.- that the idea of including all suppliers has been successfully introduced and that "[Nombre01 095]" (this chamber understands, [Nombre01 095]) believes he can convince the Contraloría to approve a scheme that allows contracting with everyone, Nombre17 Nombre02 objections; 2.- that although he ([Nombre01 098]) thinks this will not be possible, he recognizes that with this, the intention to expand the current system is kept at bay, the publication of the new GSM technology tender is accelerated, and [Nombre01 091]'s fighting capacity is maintained; 3.- that [Nombre01 001] told him that the Swedes (understood as, Ericsson) are very hurt for having lost control of things and that they are not willing to cede supremacy in the metropolitan area to [Nombre01 091]; 4.- that [Nombre01 091] must not cede anything that has been achieved, that Siemens and Nortel are entering the scheme thanks to [Nombre01 091]'s effort, and that ICE knows that without this company's consent, it will not be able to advance. It is a note that also does not allow one to glimpse the formulation of a promise to [Nombre01 001] in exchange for carrying out the necessary actions within the scope of his functions to make the contracting of the 400,000 lines effective, favoring [Nombre01 091]. At most, it confirms that [Nombre01 001] had spoken with [Nombre01 098] as of November 2000, a date on which—it is reiterated—neither had the 400,000-line contract come into legal existence, nor had the defendant been designated as the person in charge of its execution. The lower court (a quo) says in its majority vote that another indicium against [Nombre01 001] is that the same promise was made to other public officials and that they accepted money from [Nombre01 091]. Regarding this, note that although—indeed—there is evidence that makes it possible to categorically establish that [Nombre01 001], like other defendants, received money originating from that company, there is none to take as accredited, at least not with a degree of certainty, a promise of a gift prior to the award, to the point that it is not plausible to rule out other hypotheses, for example, that without a prior promise existing, [Nombre01 001] accepted the economic retribution for a completed act, or that it was he who induced the representatives of [Nombre01 091] to give or promise him an economic retribution. For the undersigned, only considering the declaration of [Nombre01 064], who was explicit regarding the topic, was it possible to maintain that other public officials received promises of gifts and, in that measure, make the lower court's conclusion, in the sense that [Nombre01 001] also received it, reasonable. Suppressing this declaration, what remains regarding the point is a judgment issued against [Nombre01 068]; however, from this one also cannot derive a judgment of certainty that [Nombre01 001] received the cited promise, since the referred resolution was issued in the context of an abbreviated procedure (procedimiento abreviado), where the defendant—[Nombre01 068]—merely accepted the attributed facts and the agreed sanction (cf. evidence No. 747, docket called Certified copy of judgment No. 586-07 Case File 06-000045-621-PE Crime of aggravated corruption (corrupción agravada), against [Nombre01 068]). Although indeed, in that judgment it is taken as proven that [Nombre01 105], with the collaboration of [Nombre01 046], offered [Nombre01 068] a promise of a gift in exchange for voting in favor of the company [Nombre 091] in the 400,000-line tender, a promise that [Nombre01 068] accepted, this does not allow it to be taken as proven that the same promise was made to [Nombre01 001], since the acceptance that [Nombre01 068] made of those facts is of a personal and, moreover, formal nature, as it is a requirement for the abbreviated procedure to be applicable, whereby its evidentiary significance, at least as far as this proceeding is concerned, is quite limited, arguments that are precisely the same that must be set forth in relation to condemnatory judgment No. 260-09, issued against [Nombre02 105] for the crime of penalty of the corrupter, judgments that the appealed ruling itself recognizes have only been considered "...in relation to those who submitted to such procedures and only with the type of crime for which they were convicted, the sanction, parties, and eventual reparations or other merely referential data, without in any case evaluating the proven facts and other content." (F. 15,767 and 15,768 front, volume XXXII). Moreover, as is stated in the cited resolution, [Nombre01 068] received an offer from [Nombre02 105] and from [Nombre 046] himself, while in the case of the other defendants, among whom is [Nombre01 001], the formulation of the promises is attributed to other characters, specifically, to [Nombre01 078] or to [Nombre01 041], so it could not be affirmed either that these are identical situations, for the purpose of assigning that judgment a value it does not have. Regarding the so-called route of action (ruta de acción) prepared by [Nombre01 124], the first thing to indicate is that this document does not contemplate the commission of criminal acts, but only the need for [Nombre01 091] to gather support in different spheres of national activity (business sector, Catholic Church, political parties, etc.). Moreover, from it, it is not reasonably derived that [Nombre01 041] and [Nombre01 078] made a promise of a gift to [Nombre02 001]. As has been pointed out, there is no doubt that [Nombre01 001] illegitimately increased his assets and that he made a series of transactions aimed at distancing the funds received both from their origin and from his person (which is an additional element to confirm that he knew the irregular character of those funds); however, to declare him the responsible perpetrator of the crime of improper bribery (cohecho impropio) in its modality of aggravated corruption, it is not enough to have the above taken as proven, it is not even enough to have it taken as proven that the money he received from [Nombre01 091] had some relationship with the topic of the 400,000 lines, but it was essential to prove that [Nombre01 001], prior to the award, accepted a promise of economic retribution in exchange for carrying out the necessary actions within the scope of his functions to make the 400,000-line contract effective, favoring [Nombre01 091], which, logically, also requires definitively ruling out other equally admissible hypotheses, for example, that without the cited promise mediating, he accepted the sums that were transferred to him for acts completed in his capacity as a public official, or that it was he who induced [Nombre01 041] to give or promise him the cited economic retribution, which, in addition to not having been ruled out, was also not charged. Continuing this analysis, the trial court indicates that evidence No. 75, folios 324 and 325, note PE-0102-P of February 22, 2002, is important because despite being for internal use of ICE, it was sent to [Nombre01 041] and to the company [Nombre 091] in France, which allows it to be corroborated that the former was aware of what was happening around the 400,000-line GSM technology project and of the functions that had been assigned to [Nombre01 001] as project coordinator. It is even affirmed, based on that evidence, that the appointment of [Nombre01 001] to that post was part of the plan devised by [Nombre01 041]. The errors in this reasoning are obvious. As already indicated, the appointment of [Nombre01 001] was not a task for [Nombre01 078], [Nombre01 041], or [Nombre01 028]. Furthermore, it is unknown who sent that internal note to [Nombre01 041] and to [Nombre01 137]. Finally, but not less important, it must be highlighted that the evidence in question also adds nothing to the topic of the prior promise, since in it the Nombre10 of the commission that would be in charge of the 400,000-line project are merely mentioned, and those of the high-level commission on which that working group would depend directly, composed—the high-level one—of [Nombre01 095], [Nombre01 122], and [Nombre01 068]. That is, as is established without any effort and the same lower court recognizes in the challenged judgment, [Nombre01 001] did not have the last word on the project, since there was another working group controlling the matter—the so-called high-level commission—and, of course, the institution's own board of directors, meaning it is speculation on the part of the trial body to conclude that, despite this, the corrupters practically "designated" [Nombre01 001] as part of the criminal plan and that he was essential since, in addition to access to information, he had "weight" with officials like [Nombre01 095], [Nombre01 122], and [Nombre01 068]. Similarly, what the lower court states in proven fact Nombre68 No. 132 is completely unfounded, namely, that [Nombre01 001] fulfilled the agreed-upon actions and that once "he succeeded" along with other ICE officials in opening the tender for the purchase of cellular telephony and the award of the 400,000 GSM line contract in favor of [Nombre01 091], he received the promised gift, the above because [Nombre01 001] was a middle manager, who lacked the power to decide on the aforementioned topic; because the 400,000-line contract (abbreviated bidding process 1-2001) arose within the Contraloría General de la República and not in ICE, which until then had opted for direct contracting, and, finally, because [Nombre01 091] was favored with the contract legitimately, after meeting all the requirements and having been recommended in the respective studies, and not because of the particular actions of [Nombre01 001] (who, it is reiterated, did not have the power to open the tender or to award the contract), or of any other defendant. In fact, in the same judgment it is stated that: "In the minutes of ICE’s Board of Directors Session No. 5326 of August 28, 2001, from folios 4191 to 4215 (evidence No. 2), it is recorded that the date to receive offers in relation to Abbreviated Process 01-2001 for the acquisition of 400,000 wireless telephone solutions in the 1800 Mhz band with GSM technology, was set for July 20, 2001, and that only two bidders presented themselves: Consorcio Ericsson II and a joint offer between [Nombre02 060] and Banco Centroamericano de Integración Económica (BCIE). Equally, it is inferred from the cited minutes that the offer formulated by Consorcio Ericcson II presented technical defects, which is why it was disqualified, while the offer jointly presented by [Nombre01 060] and BICIE met all the requirements of the tender specifications, which is why it was agreed unanimously to award Abbreviated Bidding Process 01-2001 for the lease with an option to purchase the equipment necessary for ICE to provide 400,000 comprehensive wireless telephone solutions with GSM technology in the 1800 Mhz band, plus the associated services and components, to the joint offer formulated by [Nombre01 060] and BCIE. In relation to the referred award aspect, witnesses [Nombre 095], Executive President of ICE, [Nombre01 287], and [Nombre01 195], President and Directors of ICE at that same time, coincidentally declared that the successful bidder of the 400,000-line tender was the company [Nombre 091], which was decided unanimously, relying on the result of a study analysis by various interdisciplinary sectors of the institution, all of which recommended the award to the cited company. When witness [Nombre01 095] was shown the minutes of ICE’s Board of Directors Session No. 5326, folios 3533 to 3557 of Volume IX (evidence No. 3), he said that he recognized that document and that the Board's decision was unanimous to grant that tender to [Nombre01 091]. Finally, he declared that with the award of those 400,000 lines, the demand for mobile lines was largely resolved, that he does not know if they generated a surplus for ICE but that the negotiation was positive and justified the need to migrate to GSM technology in the necessity of providing new and better services to the user with new technologies, a point on which former executives [Nombre01 287] and [Nombre01 195] also concurred." The company Ericsson, disagreeing with the award of the tender for the 400,000 lines and the disqualification it had been subjected to, proceeded to file an appeal against the decision of the Board of Directors of ICE, which it submitted to the Contraloría General de la República on September 14, 2001, according to the received stamp on the appeal, which is found in ampo 5C of evidence No. 640, folios 2357 to 2297. The aforementioned appeal was declared without merit by the Contraloría General de la República on December 17, 1991, according to resolution R.C.N. 796-2001, visible at folios 3303 to 3219 of ampo 7C of documentary evidence No. 640. Evidence No. 640 contains a certified copy of the complete administrative file of the Abbreviated Competitive Procedure No. 01-2001…” (The transcription is literal, f. 15,570 and 15,571 front, volume XXXII, the underlining is not from the original). In sum, the admissible evidence analyzed integrally is insufficient to consider the crime of aggravated corruption in its modality of improper bribery as established. Without the statement of [Nombre01 064] serving as a guiding thread, all that remains is a series of ambiguous indications regarding the promise of economic retribution that, according to the accusation, [Nombre01 041] made to [Nombre01 001] in relation to the 400,000 lines project. This conclusion does not change if one considers, as already explained, the convictions handed down against [Nombre01 068] and [Nombre01 105], since in these, all that is observed is a personal and formal acceptance of charges, which in no way is sufficient to anchor the aforementioned judgment of certainty. Even if, from the position that [Nombre01 001] held at ICE, we can extract with a high degree of probability that the economic retribution he received had some relation to the subject of the 400,000 lines, without the testimony of the cooperating accused, it cannot be assured with certainty that there was a prior promise and, even less so, that the delivery of the gift was conditional upon the effective award of the offer that [Nombre02 091] would present to ICE, as affirmed by the a quo in demonstrated fact number 131 (f. 15,455 front). Without that statement, it must be reiterated, other factual hypotheses not subject to indictment cannot be ruled out either, e.g., that the economic retribution admitted by [Nombre01 001] was given to him without a prior promise, for an act performed in his capacity as a public official (as [Nombre01 064] had originally stated), or even that it was [Nombre01 001] who compelled or induced the representatives of [Nombre01 091] to give him or promise him a specific patrimonial benefit, or that, if a prior promise existed, it had a different content. Nombre11 along these lines, it is important to note that although [Nombre01 041] admitted before [Nombre01 116] having paid public officials, among them [Nombre01 001], he never admitted having made a prior promise in exchange for [Nombre01 091] obtaining the contract for the 400,000 lines. Quite the contrary, what [Nombre01 116] describes is that, according to a draft statement sent by [Nombre01 041], he indicated that it was [Nombre01 064] and other public officials who requested the rewards for having helped in opening public tenders instead of direct contracts (f. 15,157 front, volume XXXI). While it is true that, according to the same witness, at the meeting held [Nombre01 041] did not refer to this circumstance (cf. same folio), what was indicated in the aforementioned draft (which is introduced into the debate through the testimony of [Nombre01 116]) contributes to the doubts held by the undersigned as to whether the promise of a gift prior to the award actually occurred. Regarding the official letter from [Nombre02 126], which indicates that the agency invoiced [Nombre01 091] on April 24, 2002, and at the request of [Nombre 001], the items corresponding to “Visa to Cuba and cancellation of reservation” (cf. f. 1771, volume V, which we have reviewed), note that, contrary to what the court indicates, it does not follow that the promise of a gift existed. As with the monies that [Nombre01 001] received, the economic advantage provided through Nombre69 was admitted after the award of the 400,000 lines and, although one might presume it is related to that matter, it cannot be ruled out that it was received as retribution for an act performed without a prior promise, or that it was requested by the public official himself. Finally, it is important to add that although when examining the particular case of [Nombre02 001], the trial court did not make a lengthy mention of the testimony of [Nombre01 064], from a comprehensive reading of the judgment and what was said regarding [Nombre01 022], it is clear that this statement played a central role in both cases, to the extent that even though [Nombre01 064] stated he did not know if other public officials had received similar promises, the a quo used this evidence to conclude that Nombre02 happened, a conclusion this chamber cannot endorse at this procedural stage, since, as has been indicated, the account of the cooperating accused, besides being illegal, is implausible. Nombre02 the situation and having ruled out, since it is impossible to prove, that [Nombre01 001] was given a promise of a gift, what must be analyzed is whether it is possible to find another crime established, specifically, that of illicit enrichment. Firstly, it must be noted that this is a residual crime compared to other more complex ones, hence there is no impediment so that, if these cannot be proven (e.g., improper or proper bribery, accepting gifts for an act performed, exaction, etc.), the basic form is applied, Nombre11 when its elements have been contemplated in the accusation made by the requesting body and have been deemed proven in the judgment. The answer to this question is negative. The criminal definition of illicit enrichment provided for in subsection 3 of Article 346 of the Penal Code in force at the date of the facts, stated: "A public official who, without incurring a more severely punishable crime, shall be punished with imprisonment from six months to two years: (...) 3) Admits gifts that were presented or offered to him in consideration of his office, while he remains in the exercise of his post; (...)". As can be extracted from the above, the action described in subsection 3) contains two alternative conducts, namely, the acceptance of a gift offered and the acceptance of a gift presented. In the first scenario, the admission, which refers to the material receipt of the economic advantage, occurs, just like the presentation, while the active subject remains in the exercise of his post. In the second, the admission or acceptance refers to the offer, where these actions – the offering of the gift and its acceptance – are those that must occur during the exercise of the post. Since the crime is consummated upon the admission of the offer, the material receipt of the gift, if it occurs, constitutes a subsequent unpunishable act, making it irrelevant whether it takes place while the public official holds the post that motivated the economic retribution, or if he had left it by then. Having clarified the above, note that from the relation of demonstrated facts that persist after hypothetically eliminating the offer of economic retribution prior to the award of the contract for the 400,000 lines, all that remains is that [Nombre01 001] admitted the gifts that were delivered to him in consideration of his office. We speak of conduct that, at most, conforms to the first scenario of the illicit enrichment described above, that is, the admission of the presented gift. However, neither in the accusation made by the requesting body, nor in the judgment, was it clarified whether that admission took place while the accused held the post, an element that also forms part of the definition and which, in this particular case, is of utmost importance, since he would have admitted some economic retributions when he had left public office (namely, the one received on May 7, 2004, for twenty-four thousand dollars – demonstrated fact No. 167 – and the one received on July 29, 2004, for twenty-five thousand dollars – demonstrated fact No. 170). It is important to add that although, when examining this accused's situation, the trial court indicated that he left the post on March 10, 2004 (f. 15,895 front, volume XXXIII), because this is not an item contained in the accusation made by the Public Ministry, it could not be incorporated into the demonstrated facts without violating the principle of correlation between accusation and judgment. However, even if it were hypothetically assumed that said information was available, specifying which amounts he received while serving as executive assistant to the executive presidency of ICE and which he did not (and the hypothetical nature of the situation is underscored), the criminal action, in the case of the crime of illicit enrichment, would be time-barred. The crime in question is punishable by a prison sentence of 6 months to 2 years; that is, its statute of limitations period, according to Article 31, subsection a) of the Code of Criminal Procedure, is 3 years and was reduced to 18 months upon the first formal indictment (Article 33, subsection a) of the same regulatory body), a procedural act that occurred on October 8, 2004 (f. 316 to 324 front, volume I). That is, the 18-month period expired on April 8, 2006, and by that time, no procedural act had occurred that, by legal provision, had the virtue of interrupting or suspending its calculation. Furthermore, the resolution declaring this case to be of complex processing became final on June 26, 2006, a date by which the criminal action was already time-barred. It is important to add that although Sala Tercera, in resolution No. 1847-2014, indicated that in accordance with Article 376 of the Code of Criminal Procedure, the finality of the resolution declaring the matter of complex processing modifies the reducing condition of the prescriptive periods, to the extreme of eliminating the reduction by half of the statute of limitations period in progress, it also added that “… the only exception to this reasoning would have been presented in the event that the fatal prescriptive period had expired before that issuance, since in that case the extinction of the criminal action due to the statute of limitations would have occurred, turning that circumstance into a consolidated legal situation, to which the effects of the aforementioned Article 376 could not have been applied…” (Cf. considering IV.-, resolution No. 1847-2014, the underlining is not from the original). This is precisely what happens here, as we would have that by the date on which the resolution declaring the process of complex processing became final (namely, June 23, 2006), the action to criminally pursue the crime of illicit enrichment would already have prescribed and, consequently, a consolidated legal situation existed that was not modifiable by the application of the mentioned Article 376. Finally, this conclusion does not vary one iota if Article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, is considered. The cited article provides: “Statute of Limitations for Criminal Responsibility. The criminal action for crimes against the duties of public office and those provided for in this Law shall prescribe in the manner established by the applicable legislation; however, the following rules shall apply: a) Once the statute of limitations is interrupted, the periods 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 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 in a judicial or administrative venue.” (The highlighting is not from the original). From this norm, especially from subsection a), it can be extracted that in the case of crimes against the duties of public office and those provided for in Law No. 8422, upon any of the acts designated by the Code of Criminal Procedure as interrupting the calculation of the statute of limitations period, the calculation begins to run anew completely (that is, without a reducing effect), which constitutes an exception to Article 33 of the recently mentioned Code. This is an article that is applicable to procedural acts carried out after its entry into force, thereby ruling out its retroactive application to prior acts. And precisely, this norm would be applied retroactively if, for example, one maintained that Article 62, subsection a) [which – it is reiterated – entered into force on October 29, 2004] eliminated the reduction of the prescription period by half that operated with the interrupting act performed days earlier, namely, on October 8, 2004, when [Nombre01 001] appeared to give his investigative statement. It is important to clarify that the aforementioned position is endorsed by the Sala Tercera itself in resolution No. 1847-2014 cited above, insofar as it concluded that, because it is not in accordance with the Political Constitution to give retroactive effects to procedural norms, only with respect to the accused who were questioned after the entry into force of Law No. 8422, was Article 62 of said law applicable to them, according to which, after an interrupting act, the statute of limitations period must be calculated in full and not reduced by half (f. 176,429 to 176,431, volume XLIII). This situation is only present in the cases of [Nombre01 018] and [Nombre01 006], such that only with respect to them was one more reason added to those already given by that court, to maintain that the criminal action was not time-barred. Similarly to what has been set forth, the Tribunal de Casación Penal de San José has ruled, for example, in judgment No. 132-2006, of 10:30 hours on February 23, 2006, which, in relevant part, indicates: “The jurisprudence of this Tribunal (votes No. 391-1999, No. 372-2001 and No. 1058-2001), as well as that of the Sala Constitucional (see votes No. 5821-1998 or No. 4397-1999) and the Sala Tercera de la Corte (cf. votes No. 891-1999, No. 368-2000, No. 383-2002, No. 1017-2002, No. 1019-2002 and No. 35-2003) has already indicated that the rules of prescription, being instrumental norms, are effective only towards the future and never towards the past. It is therefore not possible to apply procedural law retroactively, given that such a possibility is provided only for substantive norms and Nombre11 that are more beneficial to the accused. Under this consideration, the rules concerning the statute of limitations will be effective from their effective date for the facts or procedural acts they provide for, but never for those already produced, as their effects cannot be retroacted upon them. Nombre02 the circumstances, although Article 62 of the “Law against corruption and illicit enrichment in public office” (Law No. 8422) provides that henceforth the reduction provided for in Article 33 of the Code of Criminal Procedure shall not apply once the prescription period has been interrupted when any of the grounds that Nombre02 allow it supervene, recommencing the full period of Article 31 of that same legal body, such a norm cannot be applied to the scenarios or cases in which, prior to its entry into force, which occurred on October 29, 2004, the prescription period had already been reduced by half precisely as a consequence of one of the interrupting grounds provided for, as established at that time by the procedural norm. That norm is effective only from its entry into force for cases in which any of the interrupting acts that the procedural norm provides for supervenes and Nombre11 provided the period had not already been reduced previously as provided, since actions are governed by the procedural law in force at the time they occur and not by those that had already occurred. In other words, the full prescription period could not be reinstated on the basis of a norm that was not yet in force at the time when, in accordance with the legislation that did govern, a ground with a reducing effect occurred. This means that when the “illicit enrichment law” was promulgated (October 29, 2004), in this proceeding the prescription period had already been interrupted and reduced by half, in accordance with the norm that Nombre02 regulated it, that is, as provided for in Article 33 of the Code of Criminal Procedure. This best safeguards the rights of the parties and the essential principle of legal certainty, since it is ruled out that a later procedural law should determine, in a different manner, what occurred in a prior process or proceeding. The latter occurs even independently of the moment at which the extinction of the criminal action is declared (whether during the validity period of the reform or before it), because the resolution that Nombre02 establishes it has a merely declaratory nature and not a constitutive one regarding the prescription already consummated. Thus, if in the case under analysis, and as provided by the law in force when it arose, the prescription period was reduced by half once the corresponding interrupting acts were presented, the period to be calculated is one year and six months and not three years as asserted in the appeal…” (The underlining is not from the original). Now, in addition to the lack of description of the definitional elements of illicit enrichment, both in the indictment and in the demonstrated facts, Nombre02 and the expiry of the statute of limitations for criminal action, in the case of the gifts that [Nombre01 001] materially received after March 10, 2004, one more reason can be added that would prevent the aforementioned crime from being established, namely, its atypicality. As already noted supra, [Nombre01 001] served as a public official at ICE from January 1, 2001, to March 10, 2004 (f. 15,895, volume XXXIII), a period during which he received most of the irregular funds. After leaving that post, on May 7, 2004, he received $24,000 and on July 29, 2004, he received $25,000 (demonstrated facts numbers 167 and 170, folios 15,466 and 15,467 front, volume XXXII). As explained earlier, the criminal definition of illicit enrichment in the scenario relevant here – admission of presented gifts – contemplates only the admission of gifts that were presented to the public official in consideration of his office while he remains in the exercise of his post, which is not the case for the amounts referred to above. Nombre02 the situation, the conduct of [Nombre01 001], at least in the two cases already indicated, would also be atypical. For all the foregoing reasons, the appealed judgment is annulled insofar as it declared [Nombre01 001] the responsible perpetrator of a crime of aggravated corruption in its modality of improper bribery. In its place, for procedural economy and in application of the principle in dubio pro reo, he is acquitted of all punishment and responsibility for the aforementioned crime. As unnecessary, a ruling on the appeals filed by his public defender, licensed attorney Yamura Valenciano Jiménez, is omitted. As for the appeal that [Nombre01 001] filed personally, jointly with other accused, this chamber will refer to it later.

**2) [Nombre01 022].** According to what is extracted from folios 15,837 to 15,893 front of volume XXXII and from folios 15,972 to 15,980 front of volume XXXIII (where a joint assessment of the situation of [Nombre01 001] and [Nombre01 022] is made), as well as from the general sections of the judgment, also mentioned by this chamber when examining the case of [Nombre01 001], namely, those related to the general framework concerning the contracting of the 400,000 GSM cellular lines (f. 15,512 front and following) and with the alleged corruptors and the criminal scheme (f. 15,572 front and following), to determine the responsibility of [Nombre01 022] the a quo considered a series of circumstances. Those set forth in folios 15,837 to 15,893 front of volume XXXII can be summarized as follows: **i)** abundant documentary evidence exists to establish that [Nombre01 022] was a member of the board of directors of ICE from June 1, 1994, to May 31, 2002; **ii)** as a member of the cited board, the accused had voice and vote in the decisions adopted and, in what is relevant here, regarding the matter of the 400,000 cellular lines (the court here cites the minutes of some of the board of directors' sessions); **iii)** between [Nombre01 041], [Nombre01 078] and [Nombre01 022] there existed a relationship of trust and friendship, a relationship that continued after 2002 when his appointment to the board of directors ended. Abundant documentary evidence exists, all examined in depth in the judgment, which accounts for the attentions that [Nombre01 041] and [Nombre01 078] provided to [Nombre 022]. For example, they made hotel reservations in Madrid and Paris for [Nombre 022] (year 1996); they paid for trips, including one to Spain (1999), and managed what was necessary for [Nombre01 139] to provide him with attentions during a trip he took to that country (1996). The court analyzed one of the documents that [Nombre01 022] sent to [Nombre02 078] , asking him to make reservations in Madrid and Paris. In that missive, in addition to indicating he would write later, [Nombre01 022] signs off with the words “hug [Nombre01 290] ". [Nombre01 078] responded to this missive, with a copy to [Nombre01 041], confirming the reservations. The a quo also highlights that [Nombre01 105], who accepted an abbreviated procedure, intervened in some of these events; for example, in 1997, on the occasion of a trip by [Nombre01 022] to Spain, it was [Nombre01 105] who asked [Nombre 078], with a copy to [Nombre01 041], for help with [Nombre01 022]'s hotel expenses, help that was indeed provided; **iv)** the court weighed documentary evidence from which it is derived that [Nombre01 091] initiated relations with the travel agency Nombre69 in January 2000 and that, according to that company's accounting records, [Nombre01 105], [Nombre01 064], [Nombre01 001], and [Nombre01 022] used its services, the latter accused in May 2002. According to the court, this is not a coincidence. Three of those favored with the trips were ICE officials and another was related to the company [Nombre 114], itself linked to [Nombre01 060].

Even though these trips took place after the contract for the 400,000 lines was countersigned, the appealed ruling states, they are not unrelated to those events, just as the money transfers that [Name01 022] received starting in March 2002 (the date of the countersignature) are not unrelated either; v) the offers and deliveries of the bribes to the accused coincide, both in time and in the amounts received, as well as in the company that issued the investment certificates, the company that ordered the money transfers, and the person who managed the bank account; vi) it makes no sense to think that the bribes were given to [Name01 022] and [Name01 001] because [Name01 041] "liked them very much." They were given because they had been promised in exchange for these individuals promoting the migration to GSM technology; vii) report 011-SDI-206, piece of evidence 630, file named Refrend 114363, is an email message sent on September 5, 2001, by [Name01 022] to [Name01 078]. It concerns a study that the former accused requested from an ICE official for his personal use and, once he had it in his possession, he forwarded it to [Name01 078] with the aim of informing him about the "negative atmosphere at the Contraloría" regarding, among other things, the direct contracts 108212 and 108213 approved on December 5, 2000, by the ICE Board of Directors, aimed at expanding the [Name01 091] and Siemens brand exchanges existing in the country, which, at the date of that report, had not been countersigned. This is information that, although it was sent to [Name01 078] on September 5, 2001—that is, after the abbreviated process for the 400,000 lines had been awarded to [Name01 091] (on August 28, 2001)—was still of interest to him, since this award had not been countersigned by the Contraloría General de la República, making it urgent that he know the criteria and requirements of the Contraloría regarding direct contracting and the possibility that was opening up for [Name01 091] to expand the contract for the 400,000 lines by 50%; viii) the relationship between [Name01 041] and [Name01 022] extended beyond May 31, 2002, when the latter ceased to be an ICE director. This is demonstrated by documentary evidence that was examined in the ruling (f. 15,850 recto); ix) this close relationship is also drawn from the testimonial evidence, as there are several witnesses who attest to the presence of [Name01 022] in the offices of [Name02 091], a link between [Name02 041] and [Name01 022], and the sending of sealed envelopes—the contents of which could not be determined—by [Name01 041] to [Name 022], specifically to his home address and not to the ICE offices, as was the case with what was sent to [Name01 095] (e.g., the testimonies of [Name01 142], [Name01 144], [Name01 148], and [Name01 150], examined from folios 15,851 to 15,855 recto); x) although there is no direct evidence of the promise of a bribe (which is understandable given that it is an illegal act), its existence can be demonstrated through several elements: 1) The money received does not stem from legal and transparent negotiations, and [Name01 022] is so aware of this situation that he used mechanisms to try to distance the received assets from himself, despite which, through exhaustive studies, it was determined that the funds originated from [Name01 060]. 2) [Name02 041], as representative of [Name02 060], and [Name01 078], deemed it necessary to have help from ICE officials and other agencies so that a public tender could be opened in which the company could participate and be the awardee of the 400,000 mobile lines. To arrive at this conclusion, the court considered the unfavorable history that said company had in contracting with the ICE. Based on the testimony of [Name01 128] and abundant documentary evidence specified in the judgment (f. 15,857 to 15,861 recto), [Name01 091]'s dissatisfaction with ICE policies is explained, particularly those adopted to contract 83,000 lines in 1999 and 100,000 lines in 2000, which placed the company at a clear disadvantage against other competitors, e.g., Ericsson, a situation that was denounced by [Name 091] in various forums, namely, the ICE itself, the Contraloría General de la República, the Asamblea Legislativa, and the press itself (f. 15,857 to 15,861 recto). This situation is what initially reveals the need and urgency that [Name01 041] and [Name01 078] had, on the eve of a contract like that of the 400,000 cell lines, to have people within the ICE who were sympathetic to them, a project of which they were aware, since, as the defense acknowledges, the issue of technology migration had been under discussion for some time. In fact, as early as 1998, [Name01 091] offered to donate a GSM-PCS system for 2,000 terminals. 3) An additional probative element is the testimony of [Name02 064], to the effect that [Name01 041] and [Name01 078] offered him a reward in exchange for helping to materialize the migration to open or GSM technologies; to move towards a public tender or bid; and to vote in its favor. [Name01 064] was clear that both corruptors spoke to him about courtesies or rewards for those who helped them. He also described the atmosphere prior to the contracting of the 400,000 lines, the deficit in fixed technology and especially in mobile, noting that at that time, in fixed, the main supplier was [Name01 091] while in mobile, due to the use of captive technologies—TDMA—other companies could not compete. Even then, it was clear that cellular technology was the future, and interest in migrating to GSM was detected, since there was no captivity regarding the technology. He indicated that [Name01 091] used public opinion instruments to explain the importance of migrating to other technologies and stated that said company Nombre11 maintained that it was being subjected to discriminatory treatment. This assessment by [Name02 064] confirms that, before the 400,000-line contract, [Name01 091], through [Name01 041], was dissatisfied with the policies followed regarding direct contracts in which it could not participate. 4) Another element that allows the promise of a bribe to be deemed proven is the so-called "proposal for a course of action," designed by [Name01 124] (f. 15,863 et seq.). According to the ruling, although [Name01 124] abstained at trial, the document in question describes actions to address [Name01 091]'s problems with the ICE. In it, [Name01 124] (who—according to [Name01 132]—was a political strategist who knew the environment quite well) speaks of the need to gather support in the business sector, the Catholic Church, minority parties, and the political sector. Specifically, he mentions the need to secure the support of three deputies, a pre-candidate for [...], Nombre10 from the board of the Partido Liberación Nacional, and the private advice of a former president. Once again, an element that reveals the urgency and need that [Name01 091], in the person of [Name01 041], had to exhaust all avenues so that its offer regarding GSM technology would be accepted by the ICE. 5) Another indication that attests to the promise is the abbreviated procedure to which [Name02 068] was subjected, for acts of the same nature as those already known (evidence No. 747). 6) Although in the minutes of the board of directors' sessions where [Name01 022] participated, he never openly spoke in favor of [Name01 091], this is not surprising, since the discussion was already favorable to that company at that time (f. 15,866 recto). On the other hand, the circumstances noted by the a quo from folios 15,972 to 15,980 recto of volume XXXIII (which are largely a reiteration of those already mentioned) are the following: xi) The relationship between [Name01 091] and the ICE before the 400,000-line contract was tense. For example, in the direct contracting of 83,000 lines in 1999, the participation of [Name01 091] was not allowed, which is why this company denounced the ICE before the Contraloría General de la República and conducted a public campaign to explain that denunciation. The same can be argued with the project in 2000 to expand by 100,000 lines through direct contracting. In this, problems between both parties arose again, and once more, [Name01 091] campaigned against what it considered a transparency problem in the ICE. All these campaigns sought for [Name02 091] to position itself with the ICE and to break the chain of direct contracts to specific suppliers; xii) the course of action prepared by [Name01 124]; xiii) the statement of [Name01 064] in the terms set out above; xiv) the statement of [Name01 116], which, as relevant, spoke of the statements made by [Name01 041] before her and other Nombre10 of the commission that [Name01 060] sent to the country to investigate the events that were being published in the press. According to the deponent, [Name01 041] acknowledged having paid [Name01 022], [Name01 001], [Name01 064], and [Name01 018], and added that these payments were his initiative; xv) [Name01 001] accepted having received money from [Name01 091]; xvi) there are notes—also mentioned above—where it is spoken of how [Name01 001] was a better interlocutor for [Name01 091]; xvii) [Name01 041] invited [Name01 001] to lunch; xviii) between [Name 022], [Name02 041], and [Name01 078] there was a relationship of friendship, trust, and collaboration, which was maintained after the former ceased to be a member of the ICE board of directors. A series of documents attest to this, namely: 1.- a missive dated May 22, 1996, where [Name01 041] requests [Name01 139] that, due to a trip by [Name01 022] to that nation, any assistance be given to him since he is a member of the ICE and this institution is the main client of [Name01 091] in the country; 2.- a fax, which can be placed between March 28 and 29, 1996, where [Name01 022] thanks [Name01 078] for an invitation and requests him to make hotel reservations in Madrid and Paris, with a copy of that fax being sent to [Name01 041]. 3.- There is also a fax sent on July 18, 1997, by [Name02 105] to [Name01 078] with a copy to [Name 041], where it is indicated that [Name01 022] is traveling to Spain and requests that they help him with hotel expenses in Madrid; 4.- the documents showing that on October 8, 1999, a trip to Spain was paid for him; 5.- evidence No. 630, namely, an email dated September 5, 2001, where [Name01 022] informs [Name01 078] about the negative atmosphere at the Contraloría General de la República regarding the direct contracts intended to expand the [Name01 091] and Siemens brand exchanges that existed in the country and which, at the date of the report, had not been countersigned. Similarly, he informs him about the contract for the 160,000 lines awarded to [Name01 091] and that, unofficially, it was heard that the Contraloría would not countersign it under any circumstances because there were interests at stake and that if one wanted to buy additional cell lines, it was feasible to do so through a 50% expansion process on the 400,000 lines (folios 15,973 to 15,978 recto). Analysis of the aforementioned indications after the hypothetical exclusion of the statement by [Name02 064]: The fundamental evidence to establish that [Name01 022] received a promise of a bribe from the corruptors, as happened with [Name01 001], was the account of [Name01 064]. Although there is a series of indications that allow that fact to be deemed proven with a certain degree of probability, without the statement of the cooperating accused, it is impossible to do so with absolute certainty. As explained in the previous case, there are no doubts that the executives of the company [Name01 091] were upset with the ICE's mobile telephony policies, because by using captive technologies, [Name01 091] could not compete in that market. Likewise, it was demonstrated that they had no qualms about denouncing the situation in various forums, understanding that despite the need to migrate towards open technologies, the institution insisted on contracts that perpetuated TDMA technology. It was also demonstrated that [Name01 091] resorted to a professional—[Name01 124]—to develop a strategy to confront that problem; that [Name01 022] had a close relationship with [Name01 078] and [Name01 041] that originated years before the events investigated here; that for years, [Name01 022] also received various economic advantages from this company, some of which were requested by him; and finally, that after the award of the 400,000-line contract, he received, like other public officials, funds originating from [Name02 060]. However, from all of this it is not inferred that [Name01 022] was given a promise of a bribe at the end of 2000 and early 2001 so that, in exchange, he would carry out the necessary actions within the scope of his functions as a director of the I.C.E. to promote the migration from TDMA technology to GSM technology, to promote purchases through bids and prevent them from being aborted, as well as to vote in favor of [Name01 091] in the contracting process for the 400,000 lines (cf. proven fact No. 117). This chamber will now conduct a meticulous examination of the indications mentioned supra. Regarding the relationship of trust between [Name01 041], [Name01 078], and co-accused [Name01 022], there is abundant evidence attesting to it. For example, piece of evidence 59, called folder CRG 005 ICE, record 370760. In it, there is an unnumbered document, located before folio 345. It is a fax dated May 22, 1996, sent by [Name01 105] to [Name01 041] and in which he talks about a trip by [Name01 022] to Chile, asking that he be given special treatment. In that same piece of evidence No. 59, at folio 354, there is a fax sent by [Name01 022] to [Name01 078] between March 28 and 29, 1996, where he thanks him for an invitation and at the same time asks him to make reservations in Madrid and Paris for April 1, 2, 5, and 7. In this document, he signs off with the phrase "a hug [Name01 290] ". Also found at folio 352 of the mentioned evidence is the response that [Name01 078] gave to this message, confirming the reservations. These are documents from the year 1996, which, while revealing familiarity (an extremely reprehensible one, since we are speaking of an ICE director who repeatedly receives favors from a company that is a supplier to the institution), do not provide elements to assert that there was a promise of a bribe years later. The same applies to piece of evidence No. 65, from folder CRG.002-01/02 A ICE, which consists of a document dated July 18, 1997, addressed to [Name01 078] by [Name01 105] and informing him of a trip that [Name01 022] would make to Spain, with the request that they "help him" with the hotel expenses in Madrid, where he would arrive on Thursday the 24th in the morning and from where he would return to San José on Monday the 28th, a request that was indeed attended to according to the document at folio 144. The court also weighed piece of evidence No. 80, folio 238, which attests—as stated at folio 15,845 of volume XXXII—that on October 8, 1999, a trip to Spain was paid for [Name01 022]. As can be seen, we are talking about documents that demonstrate that [Name01 022] had, years before the events investigated here, a close relationship (highly reprehensible, by the way) with [Name01 091]'s representatives, clearly improper, but which in no way allows proving that years later, and on the occasion of the 400,000-line contract, a remunerative promise with a specific content and purpose was made to [Name01 022]. Likewise, there is evidence from which it can be deduced that this close relationship was maintained after [Name01 022] ceased to be an ICE director (cf. evidence No. 633, Annex 3, folios 9 to 11), but from which a judgment of certainty regarding the repeatedly mentioned point cannot be derived. In addition to this, one only needs to review piece of evidence No. 80, specifically documents numbers 238 and 259, to conclude that it does not establish that [Name01 091] paid for a trip to Madrid for [Name01 022], as the trial court assured without any reason. What is established with that evidence is that he was invited to eat at a restaurant in that city called Botillería del Café de Oriente. The same must be noted regarding the official communication from [Name01 126], visible in volume V of the main file, folio 1,771 recto. According to the court, the trips mentioned there, like the money received after the award, are part of the economic advantages promised before the award occurred. The undersigned understand that such an assertion lacks a substantive basis. In that document, Nombre69 indicates that its accounting records contain two invoices from May 2002 accounting for two trips taken by [Name01 022] to Guatemala and Tegucigalpa, charged to [Name01 091]. While this is additional evidence attesting to the dynamic (extremely reprehensible, it is insisted) that existed between some public officials of the ICE and the institution's supplying companies, where the latter lavished the former with economic advantages, it does not support the deduction that, on the occasion of the 400,000-line contract, a promise of economic compensation was formulated that Mr. [Name01 022] accepted. As happened with the money received after the award, the receipt of pecuniary advantages does not prove that fact, much less allow asserting, as the a quo does, that they are part of what was promised, especially considering that [Name01 022] was prone to requesting and receiving bribes from that company years before the events under examination here occurred. On the other hand, regarding the already mentioned piece of evidence No. 630, consisting of report 011-SDI-206, file Refrend 114363, which is an email sent by [Name01 022] to [Name01 078] on September 5, 2001, note that in it, the former warns the latter about the negative atmosphere at the Contraloría General de la República regarding the direct contracts intended to expand the [Name01 091] and Siemens brand exchanges existing in the country and which, at the date of the report, had not been countersigned. He also tells him about the direct contract for the 160,000 lines awarded to [Name01 091] and that, unofficially, it was heard that the Contraloría would not countersign it under any circumstances because there were interests at stake and that if one wanted to buy additional cell lines, the purchase was viable through a 50% expansion process on the 400,000 lines. As can be appreciated, this is a communication that is subsequent to the award and from which, due to its content (which relates to direct contracts and not to the abbreviated bidding process for the 400,000 lines), it also cannot be inferred that months before, prior to the award of the cited contract, the promise of the bribe took place in the terms in which it was charged by the prosecuting body. The court itself understands that the intention of [Name02 022] with the cited communication was for [Name01 078] to be informed of the Contraloría's criteria regarding direct contracting and the possibility that was opening up for [Name01 091] to expand the 400,000-line contract by 50%. Although this allows one to suspect with some degree of probability that the economic payments were associated with that contract, it does not allow for an assertion with a degree of certainty that before its award, [Name01 022] had received a promise of economic payment. So it is that, based on all the indications described above, it is also possible to consider other possibilities, namely, that before the mentioned contract and without needing a specific promise of economic payment to be made to him, [Name01 022] was committed to [Name01 091]'s cause and acted in its favor (as seen, there is evidence demonstrating that since 1996 this public official received economic advantages from the cited company) and that therefore, the money received after the award was merely a payment for an act accomplished. Equally, and considering that [Name01 022] had no qualms about requesting economic payments, it is also plausible that he was the one who induced the payment, or that if some prior promise existed, its content was different. Regarding the proposal by [Name01 124], it is worth reiterating what has already been stated. The approach this professional suggests does not in any way imply the commission of criminal conduct, much less the formulation of promises of bribes to public officials. The same must be said regarding the sealed envelopes that were delivered to [Name01 022] at his home. The court valued the testimony of [Name02 144], who, as relevant, stated that he, as a messenger for [Name01 091], delivered them on the orders of [Name01 041]. For the a quo, the fact that these documents were not delivered at the ICE with a receipt copy, as was usually the case with other documentation, demonstrates that their content was not debatable in the board of directors' sessions and that it served the illicit purposes proposed regarding the abbreviated procedure 1-2001 (f. 15,854 recto, volume XXXII). This is a conclusion lacking any basis, since, regarding the content of such envelopes, there is no information whatsoever that allows even a suspicion that it was documentation related to the cited tender, money, or negotiable instruments (e.g., investment certificates), and moreover, even hypothetically assuming this, as has been explained, from the receipt of the bribes by [Name01 022] it also cannot be deduced that the prior promise regarding the 400,000-line contract took place. Furthermore, note that the trial court, despite recognizing that the witness [Name01 148], the person in charge of preparing the envelopes, stated that their content was unrelated to the payment of bribes, concluded that such statements "... do not exclude that the envelopes delivered to [Name01 144] by [Name01 041] were different from those mentioned by the witness [Name01 148] because the characteristics of the two sets of envelopes were different: some were yellow and the others were not" (f. 16,115 recto, volume XXXIII), an assessment that is also unfounded, since, at least from what was recorded by the a quo in the descriptive reasoning of the ruling, [Name01 144] did not set forth categorical distinctions regarding the colors of the envelopes he had to deliver, stating only that they were "normal" manila envelopes (f. 14,774 and 14,775 recto, volume XXX). Furthermore, the witness [Name01 148] stated that the envelopes could be sent with or without a confidentiality stamp, and that some of these went to the ICE (f. 14,785, 14,786, and 14,787, volume XXX), from which it is reasonably inferred that she also prepared envelopes with other destinations, and it was in relation to all or most of those she prepared and sent that the deponent denied that their content was related to the payment of bribes. For all the foregoing, this chamber understands that it is speculation on the part of the a quo to assert that the envelopes delivered to [Name01 022] at his home contained documents linked to the criminal act. Nombre11 along these lines, the court also weighed the testimonies that attest to the presence of [Name01 022] at [Name01 091] (e.g., those of [Name01 148] and [Name01 150]). This is evidence that, although it proves the close relationship that existed between this accused and the executives of [Name01 091], which originated years before the contracting of the 400,000 lines, does not lead to the conclusion that the offer of a bribe (in the terms and circumstances described by the Ministerio Público) took place.

It is reiterated that this chamber does not question that [Nombre01 022] received funds from [Nombre01 060], nor that he was a public official prone to requiring and receiving advantages of economic content from that company; however, this does not allow us to maintain, with the degree of certainty required by our Political Constitution, that on the occasion of the contract for the 400,000 lines, a promise of a gift was made to him in exchange for favoring the migration to GSM, the use of public tenders or competitions, and voting favorably for [Nombre01 091]. Having said the above, we will proceed <span style=\"font-family:Arial; text-decoration:underline\">to examine the three core aspects upon which the trial court based its conclusion that the promise of economic compensation was indeed made, namely</span><span style=\"font-family:Arial; font-style:italic\">: </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">i) the unfavorable background for [Nombre01 091] before the contract for the 400,000 lines</span><span style=\"font-family:Arial\">. The trial judgment analyzed a series of direct contracts in the field of mobile telephony that took place starting in 1999 and in which [Nombre01 091] could not participate, as well as the company's response to that situation, which ranged from exhausting all internal channels at ICE to denouncing the matter before the Contraloría General de la República and the public opinion. In particular, it examined a direct contract for 83,000 lines in 1999 and another for 100,000 lines in 2000, both opposed by [Nombre02 091] (f. 15857 to 15,861 volume XXXII), all to demonstrate that the cited company was dissatisfied with ICE's policies regarding the contracting procedure being used, since only the suppliers at the time, including Ericsson, had the option to participate. For the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\">, this constitutes a first element for understanding the need that [Nombre01 041] and [Nombre01 078] had, on the eve of a contract like the one for the 400,000 cellular lines, to have people within ICE who were sympathetic to their interests, a project they were aware of because the transition to GSM technology had been under discussion for some time. For example, the court recalls that by 1998, [Nombre01 091] maintained ties with ICE and made an offer to donate GSM-PCS equipment for 2000 terminals, an offer that was accepted (folio 15,861). This is why the representatives of [Nombre01 060] chose to promise and then deliver a gift to [Nombre01 022]. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">ii) A second element of evidence considered by the trial court regarding the promise was the statement of [Nombre01 064]</span><span style=\"font-family:Arial\">. According to the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\">, this “witness” not only spoke of the promise of a gift made to him by [Nombre01 041] and [Nombre01 078] in exchange for helping to bring about the migration to GSM technology, for the purchase of material or equipment to be made through public competition or tender, and for voting in favor of [Nombre01 091]. He also said that the corrupters mentioned to him that they had courtesies for the people who helped them. That statement also confirmed the situation [Nombre01 091] faced before the contract for the 400,000 lines, which was described </span><span style=\"font-family:Arial; font-style:italic\">supra</span><span style=\"font-family:Arial\">. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">iii) The course of action prepared by [Nombre01 124] is a third element for considering the promise of economic compensation proven</span><span style=\"font-family:Arial\">. It speaks of a plan aimed at confronting [Nombre01 091]'s problems with ICE, which involved approaches to the business sector, the Catholic Church, and the political sector. That document mentions the need to gather the support of at least three deputies, a presidential candidate, two members of the National Liberation Party directorate, and a former president (exhibit No. 686). According to the appealed decision, </span><span style=\"font-family:Arial; font-style:italic\">“</span><span> </span><span style=\"font-family:Arial; font-style:italic\">This document, without a doubt, shows the urgency and need that [Nombre01 091]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, in the person of the co-defendant [Nombre01 041], had to exhaust all social and, above all, political channels so that its offer regarding GSM technology would be the one accepted by ICE. Let us remember that company's dissatisfaction with ICE's administrative policies on the subject of contracting.”</span><span style=\"font-family:Arial\"> (F. 15,864, volume XXXII). As can be drawn from the foregoing, after hypothetically suppressing the statement of the cooperating defendant, we are left with only two indicia (namely, the course of action proposed by [Nombre01 124] and the unease experienced by the officials of the company [Nombre01 091] due to its exclusion from the mobile telephony market), which are clearly insufficient to confirm the sentence insofar as it considered the promise of economic compensation to [Nombre01 022] proven. This conclusion does not change if these two indicia are analyzed together with those mentioned before (e.g., the trust relationship existing for a long time between this defendant and the representatives of [Nombre01 091]; the sending of envelopes whose contents are unknown; and, of course, the receipt of funds after the award), since although from this entire picture it is plausible to extract with </span><span style=\"font-family:Arial; font-style:italic\">a high degree of probability </span><span style=\"font-family:Arial\">that there was a promise of economic compensation, or at least, that the funds received were somehow linked to the contract for the 400,000 lines, </span><span style=\"font-family:Arial; font-style:italic\">this cannot be stated with absolute certainty,</span><span style=\"font-family:Arial\"> to the point that other possibilities that have been repeatedly mentioned and that were, moreover, not charged by the requesting body, at least not subsidiarily, can be admitted. As happened with [Nombre02 001], this chamber does not doubt that [Nombre01 022] irregularly increased his assets thanks to gifts from the cited company, and that there was no legitimate reason that protected him for proceeding in this way; however, this does not allow the promise of economic compensation attributed by the Public Prosecutor's Office to be considered proven, insofar as the indicia that remain after excluding the testimony of [Nombre01 064], although plural and independent, do not lead to the conclusion that the promise took place. For, in the case of circumstantial evidence, the resulting fact or presumed fact (in this case, the promise and its acceptance by the defendant) must be drawn from the indicia in an immediate, reasonable, even natural manner, which does not happen here, as these elements do not converge on a single conclusion that simultaneously rules out other options that were not contemplated, for example, that the content of the promise was different; that it was an acceptance of gifts for an act already performed, without a prior promise, or even that it was the public officials who induced the payment of the gifts, which in the case of [Nombre01 022] would not be strange either, since as was demonstrated, he was prone to requesting all kinds of advantages of economic content from the officials of [Nombre01 091]. Finally, it is important to add that from the judgment handed down against [Nombre 068] (exhibit No. 747), a judgment of certainty cannot be derived either regarding whether a promise of economic compensation related to the contract for the 400,000 lines was made to [Nombre01 022], since the aforementioned resolution was issued in the context of an abbreviated procedure, where [Nombre01 068]'s acceptance of the facts was of a personal and formal nature and, to that extent, little evidentiary significance can be given to it as far as this case is concerned. This is an argument that also applies to the conviction handed down against [Nombre01 105], with identical results. In addition to this, as indicated when reviewing [Nombre01 001]'s situation, the offer that [Nombre01 068] received was made by [Nombre01 105] and [Nombre 046] himself, whereas in [Nombre01 022]'s case, it was attributed to other people, namely, [Nombre01 078] and [Nombre01 041], so we cannot assert that the factual platforms are identical, to the point of logically deriving from one what is affirmed in relation to the other. Finally, as the appealed decision well recognizes, from the board of directors minutes analyzed, no particularly striking action by [Nombre01 022] in favor of [Nombre01 091] emerges, hence it is not evidence whose consideration modifies what has been affirmed by this sentence appeals court. In short, for the undersigned, without the testimony of [Nombre01 064], what can be established is that [Nombre01 022] received gifts from [Nombre01 091] before the events investigated here —which was not charged— and that he also accepted them after the award of the 400,000 lines, and yet one cannot state, </span><span style=\"font-family:Arial; font-style:italic\">at least not with certainty</span><span style=\"font-family:Arial\">, that those funds were intended to fulfill a promise made to him months earlier, which he accepted, aimed at acting for the benefit of [Nombre01 091] in very specific respects: technology migration, promotion of public tenders or competitions, and favorable vote in the case of the contract for the 400,000 lines. Finally, it must be reiterated that although [Nombre01 041] admitted before [Nombre01 116] having paid public officials, he never referred to having made </span><span style=\"font-family:Arial; font-style:italic\">a promise in that sense</span><span style=\"font-family:Arial\"> to [Nombre01 022]. At the risk of undue repetition, note that —according to [Nombre01 116]— in a draft statement sent by [Nombre01 041], he indicated that it was [Nombre01 064] and other public officials who requested the rewards for having helped in the opening of public tenders instead of direct contracts (f. 15,157 front, volume XXXI). Although the witness also stated that in the meeting they held with [Nombre01 041] he did not say the above (cf. same folio), what was written in the cited draft increases the existing doubts about whether, before the award, a promise of a gift with a specific content and purpose had been made, and whether it would have been accepted by [Nombre01 022]. In summary, after excluding the illegal evidence and examining the remaining evidence, this court concludes that it is not reasonably drawn from it that there was a prior promise of a gift, and therefore the circumstances that would allow the crime of aggravated corruption in its modality of improper bribery to be considered established cannot be considered proven. Thus, what is appropriate is to assess whether the facts that remain unscathed can be considered constitutive of another crime, which is ruled out in advance. As has been noted, the charges formulated by the requesting body did not contemplate other possibilities, namely, that the gifts had been received without a prior promise, for an act already performed; that they were required or requested by the public officials; or that, having been promised previously, they had another content. After ruling out the prior promise in relation to the contract for the 400,000 lines, the only thing that can be considered proven is that [Nombre01 022] </span><span style=\"font-family:Arial; font-style:italic\">admitted</span><span style=\"font-family:Arial\"> —meaning </span><span style=\"font-family:Arial; text-decoration:underline\">received</span><span style=\"font-family:Arial\">— the economic advantages that were delivered to him, conduct that cannot even be subsumed under the criminal offense of illicit enrichment. As explained before, in the case of the </span><span style=\"font-family:Arial; text-decoration:underline\">admission of gifts presented</span><span style=\"font-family:Arial\"> in consideration of the public official's office, it is essential that the conduct takes place </span><span style=\"font-family:Arial; text-decoration:underline\">while the active subject remains in the exercise of the position</span><span style=\"font-family:Arial\">. Now, as drawn from the proven facts (specifically numbers 115 and 118 to 126), [Nombre01 022] was an ICE director until May 31, 2002, </span><span style=\"font-family:Arial; text-decoration:underline\">with the gifts being presented to him from October 2002 to May 2004</span><span style=\"font-family:Arial\">. Therefore, [Nombre01 022]'s conduct, with respect to the crime of illicit enrichment, would be atypical. It is important to emphasize that in this case, the scenario of the </span><span style=\"font-family:Arial; text-decoration:underline\">admission of an offered gift</span><span style=\"font-family:Arial\"> that the criminal offense of illicit enrichment also contemplates cannot be applied, since it has not been possible to consider proven that a gift was </span><span style=\"font-family:Arial; font-style:italic\">offered</span><span style=\"font-family:Arial\"> to [Nombre01 022], </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">while he remained in his position and on the occasion thereof</span><span style=\"font-family:Arial\">, which he accepted, which would have been sufficient to consider the crime constituted and, consequently, would have made the moment when the economic advantage was materially received irrelevant. Furthermore, it is noted that the criminal action to prosecute the crime of illicit enrichment would be time-barred. This crime is punishable with a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years and was reduced to 18 months with the first formal charge (articles 31 a) and 33 subsection a) of the Code of Criminal Procedure), a procedural act that occurred on October 1, 2004 (f. 146 to 161 front, volume I). That is, the 18-month period expired on April 1, 2006, with </span><span style=\"font-family:Arial; font-style:italic\">no procedural act having occurred by then that, by legal provision, had the virtue of interrupting or suspending its count</span><span style=\"font-family:Arial\">. Additionally, as</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial\"> was explained when examining [Nombre01 001]'s situation, </span><span style=\"font-family:Arial; text-decoration:underline\">a section to which the parties must refer to avoid unnecessary repetition</span><span style=\"font-family:Arial\">, this conclusion is not modified if what is set forth in article 376 of the Code of Criminal Procedure is considered, especially the interpretation that the Third Chamber made of this rule, since by the date on which the resolution declaring this case of complex processing became final (namely, June 26, 2006), the criminal action was already time-barred. Likewise, article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, is also not applicable in the particular case of [Nombre01 022], since this provision entered into force on October 29, 2004, that is, after the defendant made his investigatory statement and simultaneously the interrupting and reducing effects on the calculation of the statute of limitations period operated. For the foregoing, the appealed judgment is annulled insofar as it declared [Nombre01 022] the responsible perpetrator of a crime of aggravated corruption in the modality of improper bribery. Likewise, for procedural economy and in application of the principle </span><span style=\"font-family:Arial; font-style:italic\">in dubio pro reo</span><span style=\"font-family:Arial\">, he is acquitted of all penalty and responsibility for this crime. As unnecessary, a ruling on the appeals filed by his public defender, attorney Yamura Valenciano Jiménez, is omitted.</span><span style=\"font-family:Arial\"> </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; text-decoration:underline\">3)</span><span style=\"font-family:Arial; text-decoration:underline\"> [Nombre01 006]</span><span style=\"font-family:Arial\">: In relation to this defendant, the court considered it proven that he accepted a gift while he remained in the exercise of his position, specifically, that of deputy head of the ICE switching department; a gift that was, moreover, delivered in three installments. By virtue of those facts, [Nombre01 006] was convicted of a crime of illicit enrichment. As the basis for this decision, from folios 16,256 to 16,282 front of the judgment, volume XXXIV, the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> considered the following: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">i)</span><span style=\"font-family:Arial\"> [Nombre01 006] had a relationship with the company [Nombre01 091], since the specialized switching area was the one that had to carry out the equipment installations and administer the contracts. Moreover, [Nombre01 006] had active participation in several contracts awarded to that company and that were recommended by him, namely, (i) No. 103830 for the acquisition of 38 remote subscriber units, awarded in session No. 5109 of September 7, 1999; (ii) contract No. 104333 for the acquisition of 509 primary access digital ISDN TED in central offices, awarded on April 13, 2000, and in which [Nombre01 006] was co-administrator of the contract; (iii) contract No. 105543 for intelligent network expansion, awarded in session No. 5210 of August 22, 2000. In this, [Nombre01 006] was in charge of the acceptance tests; (iv) contract No. 108213 for the expansion of [Nombre 091] 1000 - E10 central offices, awarded in session No. 5294 of May 9, 2001. [Nombre01 006] was co-administrator of the contract; (v) contract No. 112346, execution of the purchase option for the intelligent network, awarded in session No. 5375 of February 12, 2002; (vi) contract No. 112765, expansion of the [Nombre 091] central offices, awarded in session No. 5404 of May 14, 2002. [Nombre01 006] was the administrator of this contract. The evidence for the foregoing is documentary in nature and is mentioned at folios 16,257 and 16,258 front of the judgment. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> Due to the administration of the contracts, [Nombre01 006] had a close relationship with the representatives of [Nombre01 091], a matter also attested to by witnesses such as [Nombre01 153] and [Nombre01 156]. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> Based on those same testimonies and documentary evidence No. 344, it was established that [Nombre02 006], as head of the ICE switching department, had, among other functions, to determine the needs regarding expansions or improvements in the different areas of the country. As coordinator, he had under his command a team of technicians who determined the equipment needs; based on those needs, a document was made and, in the words of witness [Nombre01 156], “it became a requirement,” with the defendant [Nombre01 006] being responsible for signing the certification of the supplier's need. Later, he brought the award recommendation to the board of directors of ICE for that body to decide whether to convene the competition. In addition to the powers already indicated, he was also in charge of installing the equipment, carrying out the contracts, and evaluating performance, for which reason he was a key official within the award procedure, not only internally at ICE, but also for those companies that sought to participate (f. 16,276 front); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iv)</span><span style=\"font-family:Arial\"> [Nombre01 006] had nothing to do with abbreviated procedure 1-2001 regarding the contract for the 400,000 lines, but he did with fixed telephony contracts; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">v)</span><span style=\"font-family:Arial\"> there is documentary and expert evidence also examined in the judgment, which shows that [Nombre01 006] received money coming from [Nombre01 060] and that it was transferred to him using the same mechanisms used to convey economic advantages to other public officials (namely, through the account held by [Nombre01 058].); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">vi)</span><span style=\"font-family:Arial\"> this defendant received the sum of $110,336.20 dollars, an asset increase that has no justification whatsoever, especially considering that his approximate monthly salary was around 400,000 colones, according to the testimonial evidence presented. </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">Consequences of the hypothetical exclusion of [Nombre02 064]'s testimony</span><span style=\"font-family:Arial\">. As this chamber understands it, the statement of [Nombre01 064] was not decisive in establishing [Nombre01 006]'s responsibility, to the point that if it were hypothetically suppressed, the decision suffers no modification whatsoever. For the foregoing reason, we will proceed further on to address the claims that his defenders have formulated against the trial judgment. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">4) [Nombre01 018]</span><span style=\"font-family:Arial\">: The </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> convicted him for the crime of illicit enrichment, understanding that, in order not to violate the principle of correlation between charge and sentence, it was not possible to consider the promise of a gift proven and convict for the crime of aggravated corruption in its modality of improper bribery, in the terms requested by the Public Prosecutor's Office. To determine [Nombre01 018]'s responsibility regarding the aforementioned illicit enrichment, the court weighed a series of circumstances that can be outlined as follows: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">i)</span><span style=\"font-family:Arial\"> [Nombre01 018] was a deputy of the Legislative Assembly from May 1, 1998, to April 30, 2002. Later, from May 8, 2002, to April 21, 2004, he was the executive president of the Costa Rican Social Security Fund (the documentary evidence cited at folio 15,998 front and the testimony of [Nombre01 158], also cited on that same folio, attest to the above); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> as a deputy, he was part of the special mixed commission that was formed after the protests over the so-called “ICE combo.” The intent was that no bill be processed in relation to ICE without the opinion of that commission (thus, exhibit No. 59, folio 93). This is of interest, says the court, because a document called “New Telecommunications Law (ICE Combo), impact on [Nombre01 091] and actions to follow” was seized from [Nombre01 091]'s management, which reveals the importance for the company of any action that could modify or affect commercial expectations or contracts with the referred institution (f. 15,999 front); </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> [Nombre01 063] worked at ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Nombre01 091] and [Nombre01 018]. The representatives of [Nombre01 091] approached the latter thanks to the mediation of [Nombre01 063], to explain their concerns about the direct contracts that ICE was making and which, according to [Nombre01 091], excluded it from the market. Report No. 428-DEF-443-05/05, exhibit No. 630, PC06, file “White book,” and the statement of [Nombre01 128] attest to this; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">iv)</span><span style=\"font-family:Arial\"> based on the testimonial evidence presented, it was ruled out that [Nombre01 018] had been a consultant for the company [Nombre01 091], as well as that he had had any commercial or employment relationship with [Nombre01 058] that would justify the receipt of the money delivered to him. Even [Nombre01 158] stated that this defendant told her he had earned some money from [Nombre01 091] easily, as he had done nothing, and according to witness [Nombre02 116], [Nombre 041] spontaneously told her that he had paid bribes to public officials, including [Nombre01 018]. Another similar point is found in the testimony of [Nombre02 142], who indicated that [Nombre01 041] acknowledged having paid gifts to public officials, in the media. Finally, the company [Nombre01 091] had, within its contracting policies, the prohibition of hiring public officials as advisors. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">v)</span><span style=\"font-family:Arial\"> Based on [Nombre02 128]'s statement, it was established that [Nombre02 018] was informed about the mobile telephony issue and [Nombre01 091]'s interest in eliminating direct contracting without tender. [Nombre01 091] had carried out two public and complaint campaigns, one to oppose the contracting of fixed lines to Ericsson in 1999 and another in 2000, regarding GSM technology, with contact with [Nombre01 018] existing since 1999. There were several meetings with the then deputy and, on one occasion, [Nombre01 018] asked [Nombre01 128] to speak with his superiors, a meeting that, according to the witness, did take place. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">vi)</span><span style=\"font-family:Arial\"> For the court, from what was said by [Nombre01 128], it can be drawn that [Nombre01 018] was contacted to discuss the elimination of the direct contracts and the opening of the tender, which leads to the issue of the 400,000 cellular lines. This confirms [Nombre02 064]'s version, in the sense that the offering of the gift had to do with the issue of the mobile central offices and GSM technology and, to that extent, there are indicia that allow us to glimpse that a remunerative promise was also made to [Nombre01 018] under modal and temporal circumstances similar to the one made to [Nombre01 064], only that while the latter was called by [Nombre01 078], it was [Nombre 018] who asked to speak with [Nombre01 128]'s superiors. Moreover, the payments were also made to him through the same channels as to other defendants. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">vii)</span><span style=\"font-family:Arial\"> There is documentation showing that on August 17, 2000, at the [...] café, [Nombre02 041] met with [Nombre 018] and [Nombre 063]; </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">viii)</span><span style=\"font-family:Arial\"> [Nombre01 144], a messenger for the company [Nombre 091], said he had delivered envelopes, sent by [Nombre 041], to the defendants [Nombre01 022], [Nombre 001], [Nombre01 018], and [Nombre01 028], at their homes and offices. [Nombre01 041]'s secretary said that envelopes were sent to ICE and to the defendants, and that she knew their contents; however, </span><span style=\"font-family:Arial; font-style:italic\">“…this does not exclude that [Nombre01 144]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">delivered envelopes other than those she knew; envelopes that also had different characteristics from those described as known by her.”</span><span style=\"font-family:Arial\"> (F. 16,011 front). </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">ix)</span><span style=\"font-family:Arial\"> Just as [Nombre 091]'s public campaign in favor of public tender and migration to GSM technology began in the year 2000, between July 2000 and December of that year, representatives of [Nombre01 091] also held meetings with deputies and other political figures.

It was then that meetings took place with [Nombre01 018], [Nombre01 001], and [Nombre01 064], all of whom ultimately received funds originating from [Nombre01 060]. x) Finally, the lower court (a quo) assessed abundant documentary evidence, described from folio 16.014 to 16.054 verso, to demonstrate that the funds received by [Nombre01 018] came from [Nombre01 060]. xi) Notwithstanding the foregoing, the court understands that the prosecution's request to convict [Nombre01 018] for the crime of improper bribery (cohecho impropio) is not admissible, on the basis that this defendant met with representatives of [Nombre01 091] in compliance with the obligation every deputy has to receive the public. This is because fact number 220 of the indictment refers to the offering of the gift (dádiva) and fact number 221 to its acceptance, without the elements of improper bribery having been described. Therefore, the court indicates, regardless of whether what the Public Ministry stated in its conclusions was proven or not (namely, that a remunerative promise was made to [Nombre01 018] for receiving the public), since the indictment does not contain such information, the only crime that can be considered configured is that of illicit enrichment (enriquecimiento ilícito), insofar as he admitted the gift that was presented or offered to him by virtue of the position he held (f. 16.054 to 16.056 verso). In the case of the defendant [Nombre01 018], the hypothetical exclusion of the statement of [Nombre01 064] has particular significance, because although without that evidence, as will be explained later, it is impossible to confirm the appealed judgment insofar as it held it proven that this defendant admitted a gift that was offered to him under the terms provided for in the criminal definition of illicit enrichment, the application of the other scenario contemplated in Art. 346 subsection 3) of the Penal Code, namely, the admission of a presented gift, is not ruled out. Things being thus, Name02, and it being evident that resolving the legal situation of this defendant (including the issue of the statute of limitations (prescripción)) requires a more careful examination of the facts and evidence, this chamber will proceed to hear the appeals filed by [Nombre01 018] personally and by his defense attorney, Mr. José Miguel Villalobos Umaña.

• 5)[Nombre02 033]: The core evidence considered by the lower court (a quo) was the statement of [Nombre01 064]. Without it, there is no possibility that the finding of certainty reached remains unscathed, since although after its hypothetical suppression, it can be reasonably demonstrated that some funds from [Nombre01 060] ended up in his hands, or in those of individuals or legal entities close to him, these are funds that [Nombre01 064] received in the first instance and that later, only in part, he transferred to [Nombre01 033]. Furthermore, the only evidence regarding the motive or justification for those transfers is the statement of the cooperating defendant himself, to the effect that at the end of 2000 he spoke with [Nombre01 033] about the promise of economic retribution that had been made to him by the leaders of [Nombre02 091] regarding the issue of the 400,000 lines, and that the then [...] Nombre70 urged him to accept it. Therefore, it follows that without the account of [Nombre01 064], the conviction imposed on [Nombre01 033] is left devoid of any evidentiary basis. To better explain the foregoing conclusion, this chamber will begin by synthetically stating the arguments used by the trial court to convict [Nombre01 033], but not without first clarifying that it will not delve into the reasons invoked by the lower court (a quo) for considering [Nombre01 064]'s statement credible, not only because they have already been analyzed in this decision, but because they are of no interest whatsoever considering that the opportunity criterion (criterio de oportunidad) and the evidence derived from it were declared illegal. Regarding [Nombre01 033], the following was weighed: i) [Nombre01 064] had an extensive career in public service. He was, for example, a deputy, Minister of Housing and Urban Settlements in the [Nombre01 033] administration (from May 1998 to July 1999), presidential advisor from August 1, 1999, to May 9, 2002, and general director of the presidential house. Also, with the endorsement of [Nombre01 033], he was appointed by the government council as director of ICE from August 3, 1999, onward, positions he held simultaneously. [Nombre01 064] was director of ICE until May 31, 2010, and for this, he had the endorsement of the following administration. [Nombre01 064] was a person very close to [Nombre01 033] and, despite the hierarchical relationship between them, there was also a friendship (folios 16.088 to 16.111, volume XXXIII); ii) [Nombre01 064], as a director of ICE, had a relationship with [Nombre02 041] and [Nombre01 078] (f. 16.111 to 16.116 verso); iii) as determined, since 1997 there was a practice by [Nombre01 091] of offering various forms of attention and courtesies to public officials of ICE. The lower court (a quo) says that although the ultimate purpose of this practice was not to make illicit proposals, [Nombre01 041] and [Nombre01 078] used it to approach public officials, gain their trust, and determine if they could admit a potential remunerative promise. All of this confirms what [Nombre01 064] said, in the sense that there was a process of seduction that culminated in the promise of a gift (f. 16.112 verso to 16.116 verso); iv) there were meetings between some public officials -[Nombre01 022], [Nombre01 001], and [Nombre01 018]- with [Nombre02 041], the latter also sending them envelopes (f. 16.114 and 16.115 verso); v) [Nombre01 041] made a spontaneous statement where he admitted the payment of gifts to public officials, a statement alluded to by several witnesses ([Nombre01 116], [Nombre01 164], and [Nombre01 142]). [Nombre02 068] admitted the facts, [Nombre01 001] accepted before the press having received money, and [Nombre01 064] also admitted having received a promise from [Nombre01 041] and [Nombre01 078] prior to the award, which he made known to [Nombre01 033] (f. 16.111 and 16.112 verso); vi) regarding the existence of the remunerative promise made to [Nombre01 064], the core evidence is his own “testimony,” which the lower court (a quo) deemed credible. Regarding the meeting between [Nombre01 064] and [Nombre01 033] at the latter's home, this statement is also the evidence (cfr. folios 16.126 to 16.134 verso, volume XXXIII). [Nombre01 064] said that at the end of 2000, he met with [Nombre01 078] and [Nombre 041] at the request of the former, at the [Nombre01 094] restaurant, near the airport, an occasion on which both made him a promise of a gift in exchange for promoting the technology migration, pursuing the bidding process instead of direct purchases, and voting in favor of [Nombre01 091]. That he, in principle, accepted, but upon further thought decided to ask [Nombre01 033], since the latter was in a better position to direct the opinion of the Nombre10 of the board of directors if necessary. This is why he met with [Nombre01 033] the next day, to present the offer, which the then [...] Nombre07, indicating that the distribution of the profit would be 60% for [Nombre01 033] and 40% for [Nombre01 064]. vii) To confirm the existence of the meeting at [Nombre01 094], it was taken into account that, according to their immigration records, all participants ([Nombre01 064], [Nombre01 041], and [Nombre01 078]) were in the country on December 2, 2000. Likewise, it was weighed that for December 3, the date on which, according to [Nombre01 064], he met with [Nombre01 033] at the latter's home, both were in the country (f. 16.130 and 16.131 verso); viii) two of the directors linked to these acts of corruption were appointed in the [Nombre01 033] administration, namely, [Nombre01 064] and [Nombre01 068], who has already been sentenced through an abbreviated procedure. As for the third, [Nombre01 022], although he was appointed in another administration, he had a prior link with [Nombre01 033] (f. 16.120 and 16.121 verso); ix) regarding the delivery and receipt of the gift, it was [Nombre01 064] who transferred the funds to [Nombre02 033]. That is, [Nombre01 058] did not transfer money to the accounts of [Nombre01 033] or to the accounts of individuals or legal entities in his most immediate circle, but rather transferred them to [Nombre01 064] who, in turn, delivered them to [Nombre01 033] under the terms described from folios 16.145 to 16151 verso of the judgment. For this chamber, hypothetically excluding the statement of [Nombre01 064], the conviction imposed on [Nombre01 033] is left without any evidentiary basis. The cooperating defendant's statement is the only evidence to prove that he shared with [Nombre01 033] the promise that, according to him, [Nombre01 041] and [Nombre01 078] made to him. Without that account, it is impossible to confirm the appealed judgment insofar as it holds it proven that the then [...] Nombre59 gave the support needed to accept the promise of economic retribution, or that it was [Nombre01 033] who determined the manner of distributing the irregular earnings delivered by [Nombre02 058]. It is important to note that during the trial, abundant evidence was incorporated and assessed allowing the determination that funds originating from [Nombre01 060] reached the hands of [Nombre01 033] or those close to him; however, from this it cannot be inferred that [Nombre01 033] participated in the acceptance of the promise of a gift under the terms stated by [Nombre01 064], or that the funds were associated with that promise. Note that [Nombre01 058] never delivered money directly to [Nombre01 033] or to individuals or legal entities in his circle, but delivered it to [Nombre01 064], who in turn transferred part of it to [Nombre01 033]. Things being thus, Name02, without his “testimony” (and again clarifying that the term testimony is used non-technically, as the cooperating defendant is not a witness in the strict sense since he does not offer his statement under oath) it cannot be assured, as if it were a proven fact, that there was a link between the then [...] Nombre25 and the mentioned company. And it is that, aside from the meeting between [Nombre01 064] and [Nombre01 033] that according to the former took place, [Nombre01 033] did not carry out any action that would allow suggesting, at least as probable, his participation in the investigated facts. Neither the accusation nor the judgment attributes to him having contacted any member of the ICE Board of Directors or any other public official for the purpose of determining their decisions regarding the issue of the 400,000 lines. Nor was he even accused of maintaining contact with the leaders of [Nombre01 091] who were branded as corruptors. Therefore, the demonstration of the link between [Nombre01 033] and the alleged promise of economic retribution prior to the award of the mentioned contract depends exclusively on evidence that this appellate court has declared illegal. At this point, it is necessary to clarify that the receipt by [Nombre01 033] of some funds originating from [Nombre 060] (the only fact that can be proven without the statement of [Nombre01 064]), is not sufficient to confirm the judgment insofar as it considered him an instigator of the crime of aggravated corruption by improper bribery. Not only because without that evidence, it is impossible to ensure, beyond a degree of probability, that the promise of economic retribution existed, but also because other hypotheses that were not charged cannot be ruled out with certainty either, namely, that the money was a gratuity for a completed act without a prior promise, or that it was the public officials who induced its payment. Furthermore, for other reasons that will be set forth below, when examining each of the money deliveries that the trial court held as accredited. Regarding the first delivery (as there were several more), proven fact number 96 states: “96) Without specifying the date, but after January 6, 2002, and before February 18 of that same year, in accordance with the illicit distribution percentages established by the defendant [Nombre01 033], the accused [Nombre01 064] delivered to [Nombre02 033] at the Presidential Office the sum of one hundred thirty thousand dollars ($130,000), through 7 bearer certificates of deposit from Banco Internacional de Costa Rica S.A., namely No. 19692 for an amount of one hundred thousand dollars ($100,000), No. 19693 for an amount of five thousand dollars ($5,000), No. 19694 for an amount of five thousand dollars ($5,000), No. 19695 for an amount of five thousand dollars ($5,000), No. 19696 for an amount of ($5,000), No. 19698 for an amount of five thousand dollars ($5,000), and No. 19699 for an amount of five thousand dollars ($5,000). The aforementioned instruments were generated from the account of [Nombre02 166] -mother of [Nombre01 064]- and issued on December 14, 2001, with maturity on February 14, 2002...”. As observed, the certificates that [Nombre01 064] delivered were generated from his mother’s account, [Nombre01 166], and not from his wife’s account, [Nombre01 080], which was the one supplied with funds from [Nombre01 060]. Although [Nombre01 064] explained the foregoing during the trial, stating that the funds from [Nombre01 060] were blocked or frozen and that is why he resorted to his mother's account to pay [Nombre01 033] (f. 16.165 verso), by suppressing his statement it is impossible to determine with certainty both the motive for that first delivery, Name02, and the link of the funds to [Nombre02 060]. It is important to note that although there is documentary evidence allowing it to be demonstrated that the two hundred twenty-five thousand dollars ($225,000) that [Nombre 058] transferred on December 10, 2001, to the dollar account held by [Nombre01 064]'s wife at Saint Georges Bank were frozen (cfr. evidence No. 208, folio 28, which we have reviewed), this does not delegitimize the foregoing, since that documentation does not allow even a suspicion that the $130,000 that [Nombre01 064] delivered to [Nombre01 033] between January and February 2002 has any relation to the aforementioned $225,000, or at the very least, to [Nombre01 060]. For this, it is reiterated, the cooperating defendant's statement is indispensable. Regarding the second delivery of funds, the proven facts stated: “98) On May 20, 2002, with resources from account No. [Valor 012] of [Nombre 058] at Banco Cuscatlán, supplied with money previously deposited by [Nombre 060], the accused [Nombre01 028], in accordance with the role assigned to him within the division of functions among the corruptors, partially redeemed the demand investment No. 21200289108 for the sum of one hundred thousand dollars ($100,000) and constituted four bearer investment certificates for twenty-five thousand dollars ($25,000) each, all to bearer and issued on May 20, 2002, numbers Identificacion01 Identificacion02 Identificacion03 Identificacion04 and the respective interest coupons for $64.58 each. The accused [Nombre01 028] delivered these certificates to the co-accused [Nombre 041] so that he, in turn, would deliver them to [Nombre01 064] also as part of the promised illicit payment. 99) To achieve this end, without specifying the date, but after May 20, 2002, [Nombre01 064] went to the front of the offices of the company [Nombre01 091] in Sabana Sur, and received from [Nombre01 041] a yellow manila envelope containing the described certificates, and with them he carried out the following financial transactions: a. With the proceeds of certificates No. Identificacion03 and No. Identificacion04 including the accumulated interest from certificates No. Identificacion01 and No. Identificacion02, a cashier's check from Banco Cuscatlán No. 12847-3 dated June 26, 2002, for fifty thousand two hundred fifty-three dollars and thirty-two cents ($50,253.32) was acquired, which was deposited into the account of [Nombre 080] at Banco BCT S.A. on the 27th of that month and year. b. The proceeds of certificates No. Identificacion01 and No. Identificacion02 were reinvested by orders of [Nombre 080], according to the plans of [Nombre 064], into the bearer investment certificate of Banco Cuscatlán No. Identificacion05 issued on June 26, 2002, for the sum of fifty thousand dollars ($50,000). 100) On an undetermined date, but after June 26, 2002, in accordance with the distribution of money agreed between them, [Nombre01 064] delivered certificate No. Identificacion05 for fifty thousand dollars ($50,000) to the accused [Nombre01 033], who received it at his home. Before July 30 of that year, [Nombre01 033], in turn, delivered the referenced certificate to Mr. [Nombre01 167] (who since 1994 worked as the administrator of companies linked to the accused [Nombre01 033]), and ordered him to make some payments. a) He redeemed certificate No. Identificacion05 and requested Banco Cuscatlán de Costa Rica S.A. to issue three cashier's checks made out on July 30, 2002, No. 14589-1 for fourteen thousand seven hundred fifty dollars ($14,750), No. 14590-1 for five thousand two hundred dollars ($5,200), and No. 14591-6 for seven thousand dollars ($7,000), in the name (Nombre01) of [Nombre01 291]; and withdrew in cash the sum of twenty-three thousand thirty-five dollars ($23,035). b) On July 31, 2002, with cashier's check No. 14589-1 he paid the outstanding debt at that time on the credit card in the name (Nombre01) of the defendant [Nombre01 033] No. 4732981669923003 from Banco Interfin, for an amount of five thousand one hundred forty dollars and eight cents ($5,140.08). c) On July 31, 2002, with cashier's check No. 14590-1, [Nombre01 167] paid the balance in colones of three hundred twenty-five thousand eight hundred four colones and fifteen centimos (¢325,804.15) and in dollars of four thousand three hundred dollars and fifty-six cents ($4,300.56), both from the credit card of the defendant [Nombre01 033] No. [Valor 014] from Banco Internacional de Costa Rica. d) With cashier's check No. 14591-6 for seven thousand dollars ($7,000) in the name (Nombre01) of [Nombre01 291], who has been the driver of the defendant [Nombre01 033] since March 1992, in compliance with the instructions of [Nombre01 033], payroll, electricity, water, telephone, taxes, among other obligations of [Nombre01 033]'s family were paid...” As the lower court (a quo) explained from folios 16.170 to 16.186 verso, there is documentary evidence allowing it to be demonstrated that [Nombre 080], the wife of [Nombre01 064], endorsed four bearer investment certificates for $25,000 each, constituted with funds from the account of [Nombre02 058]., previously supplied with money originating from [Nombre01 060]. Likewise, that the proceeds of two of those certificates were reinvested in the bearer investment certificate No. Identificacion05 from Banco Cuscatlán, also to bearer, for the sum of $50,000, which was endorsed by [Nombre02 167], a person close to [Nombre01 033] and who used part of the money to pay two credit cards in the name (Nombre01) of [Nombre01 033] and expenses for his home. Now, although we can reasonably assert that [Nombre01 033], through intermediaries - [Nombre01 058]., [Nombre 080], and later [Nombre 167]- incorporated funds originating from [Nombre01 060] into his assets, without the statement of [Nombre01 064] it is impossible to ensure that those sums correspond to the payment or fulfillment of a promise of a gift that [Nombre01 064] received with specific content and purposes and that [Nombre01 033] determined him to accept. The same happens with the third delivery of funds, examined from folio 16.186 verso onward and described in proven facts numbers 101 to 104: “101) Without specifying the date, but in the month of August 2002, the defendant [Nombre01 041] announced a third payment of the promised gift to [Nombre01 064]. With the purpose of not raising suspicion in the national financial system, [Nombre01 064] asked him to make the deposit into two accounts, No. [Valor 015] at Terrabank and No. [Valor 016] at BCT International Bank (offshore of Banco BCT), in the name (Nombre01) of [Nombre 080]. 102) On August 14, 2002, with resources from account No. [Valor 012] of [Nombre 058] at Banco Cuscatlán, supplied with money previously deposited by [Nombre01 091], the accused [Nombre02 028], in accordance with the role assigned to him within the division of functions among the corruptors, requested the Personal Banking Department of Banco Cuscatlán to transfer the sum of one hundred thousand dollars ($100,000) to account No. [Valor 015] at Terrabank, and the sum of five hundred ninety thousand dollars ($590,000) to account [Valor 055] at BCT Bank International to later transfer it to account No. [Valor 016] of [Nombre01 080]. These funds were formally credited on August 16, 2002, after the respective bank commissions were applied. 103) On August 19, 2002, with the five hundred ninety thousand dollars ($590,000) mentioned in the previous fact, [Nombre02 064] arranged for the issuance of investment certificate No. 25694 for a 92-day term at BCT Bank International for the sum of three hundred thousand dollars ($300,000), which was redeemed early on October 28 of the current year, and both the principal and interest were credited back to account No. [Valor 016]. On that same date, [Nombre01 064] requested the issuance of three bearer investment certificates, two for one hundred thousand dollars ($100,000) and one for seventy thousand dollars ($70,000), numbers 4523, 4522, and 4521 respectively, with a maturity date of January 28, 2003. 104) Without specifying the date, but after October 28 and before November 27, 2002, in accordance with the plan and distribution of the gift, established by the defendant [Nombre01 033], he personally received from the accused [Nombre01 064] investment certificates No. 4521, No. 4522, and No. 4523 from Banco BCT S.A., and one hundred thousand dollars ($100,000) in cash. The accused [Nombre01 033] disposed of this money as set forth below: a) He delivered certificate 4521 to ACOBO S.A. for sale, along with the respective interest coupon, on November 4, 2002. The following day, ACOBO registered the sale of said security for a total of seventy thousand forty-five dollars and thirty-five cents ($70,045.35), an amount credited to account No. [Valor 017] of the wife of the defendant [Nombre01 033], [Nombre01 169]. That same day, 20 participations of the “[Nombre01 171]” were acquired for the amount of one hundred one thousand seventy-eight dollars and seventy-eight cents ($101,078.78), which were partially covered with the indicated funds. Subsequently, on November 12, 2002, the procedure for the sale of the aforementioned 20 participations to the company [Nombre 172]. was carried out, in whose account the gentlemen [Nombre01 173] and [Nombre01 167], collaborators of the defendant [Nombre01 033], appear as authorized. Despite the fact that the judicial and extrajudicial representative of said corporation is Mr. [Nombre01 175], son of [Nombre01 033], the truth is that the latter maintains a real and direct link with its management.
• b)Between mid and late November 2002, the accused [Nombre01 033] delivered certificates of title Nº 4522 and Nº 4523 to [Nombre01 173], a trusted man of his, whom he instructed to deposit them at ACOBO along with the respective interest coupons, so that the brokerage house could negotiate them to make them effective. Subsequently, the amount of the sale was credited to account Nº [Valor 019] of [Nombre01 176] which, although formally represented by [Nombre01 173] and [Nombre01 167], was at that time under the real and direct control of the accused [Nombre01 033], despite him not legally appearing as its president or legal representative. c) Finally, as a result of the liquidation of the certificates mentioned in the previous point, on December 2, 2002, check Nº 5118-1 was drawn against ACOBO's checking account [Valor 020] at Banco Interfin, for one hundred ninety-nine thousand seven hundred ninety dollars ($199,790), in favor of [Nombre01 173], who on that same date deposited it into his checking account Nº [Valor 021] at Banco San José, which at that time showed a balance of $248.75. d) In November 2002, [Nombre01 173] proposed to [Nombre01 033] the possibility of participating as a capital partner of Mr. [Nombre01 177] in a housing project for the upper-middle class consisting of eighteen houses and six apartments, since the latter did not have sufficient funds. [Nombre01 033] agreed to invest in the project, entrusting [Nombre01 173] to make the investment effective with the proceeds of the aforementioned check Nº 5118-1 from Banco Interfin. Accordingly, [Nombre01 173] disbursed funds from December 2002 to July 2003 in favor of [Nombre01 177] or in favor of the company [Nombre 180], a corporation represented by [Nombre01 177]. To conceal [Nombre01 033]'s participation, the investment was made through a company owned by [Nombre01 173] called [Nombre 182]., represented by [Nombre01 187], who was the secretary of [Nombre01 167] and a trusted person of [Nombre01 173]; in turn, the latter made a personal contribution to the project of fifteen thousand dollars ($15,000). To formalize the business, the following contracts were executed: i) Purchase option between [Nombre01 183] representing the company [Nombre 184]., owner of the real property registered in the Partido de Heredia, under real folio registration Nº [Valor 022] and [Nombre01 177], with the total value of the sale being the sum of one hundred fifty-two thousand eight hundred twenty-five dollars and sixty-eight cents ($152,825.68). ii) Contract dated December 4, 2002, between the corporation [Nombre01 180]. represented by [Nombre01 177] and [Nombre 182]. represented by [Nombre01 187], whereby it was stated that [Nombre01 182]. was interested in participating in the housing project of the corporation [Nombre02 180]., contributing the sum of one hundred fifty thousand dollars ($150,000), and by reason of the initial risk of the investment by [Nombre01 182]., the acquired lots would be registered in its name. It was also stipulated that [Nombre 182]. would receive seventy-five thousand dollars ($75,000) in profits and the remainder would go to the company [Nombre 180]. Subsequently, approximately three months later, it was increased by fifty thousand dollars ($50,000), leaving the total contribution of [Nombre01 182]. at two hundred thousand dollars ($200,000). iii) Subsequently, another contract was executed between [Nombre01 177] and [Nombre01 187] in her capacity as legal representative of [Nombre01 182]., by means of which the former assigned to the latter the initial purchase option with the company Servicios Casablanca, which operated automatically. iv) Likewise, on December 4, 2002, through a public deed before notary public Alex Thompson Chacón, Mrs. [Nombre01 183] as president with powers of general attorney-in-fact of [Nombre01 184] transferred to the corporation [Nombre01 182]., represented in that act by Mrs. [Nombre01 187], the following properties, all registered in the partido of Heredia: real folio Nº [Valor 023] with an area of 160.4 square meters; real folio Nº [Valor 024] with an area of 160.4 square meters; real folio Nº [Valor 025] with an area of 160.4 square meters; real folio Nº [Valor 026] with an area of 277.13 square meters; real folio Nº 146.397-000, with an area of 166.50 square meters; real folio Nº [Valor 027] with an area of 180.77 square meters; real folio Nº [Valor 028] with an area of 160 square meters; real folio Nº [Valor 029] with an area of 160 square meters; real folio Nº [Valor 030] area of 160 square meters. The total price of the properties was set at the sum of eighty-six thousand seven hundred sixty-two dollars and forty-two cents ($86,762.42), also constituting a first-degree mortgage for the cited value over the referenced properties. v) The recovery from the sale of the properties began in March 2003 and entered accounts Nº [Valor 031] in the name of [Nombre 182]., Nº [Valor 032], Nº [Valor 033] and Nº [Valor 021], all in the name of [Nombre01 173] at Bac San José. After various financial movements, from the money that entered the account of [Nombre01 182], part of this money was finally received by the accused [Nombre01 033], as credits in his favor totaling fifty-two thousand two hundred twenty dollars ($52,220) were recorded between September 8, 2003, and June 4, 2004. Likewise, from checking account Nº [Valor 031] of [Nombre 182]., the sum of eighty-one thousand two hundred fifty dollars ($81,250) was credited in total to Mr. [Nombre02 173], and the sum of seventy-nine thousand three hundred fifty dollars ($79,350) was credited to Mr. [Nombre01 167] ...”. Regarding this delivery, after a series of transactions that are not of interest to recapitulate, investment certificates Nº 4523, 4522, and 4521 were issued based on the resources from the account of [Nombre 080] at BCT Bank International, all to the bearer, the first two for $100,000 and the last for $70,000, which, after several transformations, ended up in the possession of legal entities linked in one way or another to [Nombre01 033]. For the undersigned, although there is no doubt about the foregoing, as the trail followed by the money was meticulously reconstructed (cf. folios 16,186 to 16,221 recto, volume XXXIII), this says nothing about the reasons by virtue of which [Nombre01 033] received those funds, since this detail can only be established through the account of [Nombre01 064]. Furthermore, this delivery also mentions $100,000 that the cooperating defendant claims to have delivered in cash, for which there is no evidence whatsoever beyond his own words, as recognized by the trial court itself at folio 16,220 recto. Regarding the fourth delivery that has been taken as proven, and which is examined from f. 16,221 to 16,231 recto, it speaks of a check for $81,480 drawn to [Nombre01 189]., a company with which [Nombre01 033] had a direct link. The lower court (a quo) states in the proven facts: “105) On December 10, 2002, with the resources from account Nº [Valor 012] of [Nombre 058]. at Banco Cuscatlán, supplied with money previously deposited by [Nombre01 091], the defendant [Nombre02 028], in accordance with the task corresponding to him within the distribution of functions among the corrupters, delivered to [Nombre01 064] the sum of one hundred eighty thousand dollars ($180,000), by means of a transfer to account Nº [Valor 016] of [Nombre 080] at BCT Bank International, less the deduction of the bank commission of $9.50. 106) With the resources just indicated, [Nombre01 064] made a 31-day term investment maturing on January 10, 2003, for the sum of two hundred thousand dollars ($200,000). At the end of the term, the money re-entered his account and [Nombre01 064], in accordance with prior orders given by the co-defendant [Nombre01 033], issued the directive to draw cashier's check Nº 012342 from BCT Bank International for the sum of eighty-one thousand four hundred eighty dollars ($81,480) in favor of the company [Nombre 189]., with which he maintained a real and direct link. 107) Without specifying a date, but after January 23, 2003, [Nombre01 064] delivered the check to the accused [Nombre01 033] at the house of the latter’s in-laws. Then, on February 3, 2003, [Nombre01 033] deposited that cashier's check Nº 012342 at Riggs Bank N.A. of Washington D. C., which was applied to account Nº [Valor 034] of the Company [Nombre 189]., directly linked to the accused [Nombre01 033]. The defendant [Nombre01 033] subsequently admitted having received the amount of this check and two others—which will be described later—allegedly as a loan granted by [Nombre01 064], to whom he made a payment request, but it was rejected by [Nombre01 064] due to the non-existence of such a loan, since the amounts came from funds from [Nombre01 091]...”. Without the statement of [Nombre02 064], besides being impossible to determine with certainty the reason for this transfer of funds, it is also impossible to rule out the defense's thesis, in the sense that these were part of a loan that [Nombre01 064] made to the then [...]. The fifth and last delivery, described in proven fact number 111) and examined from folios 16,232 to 16,241 recto, is for approximately $188,000, delivered in the following manner: two checks (one for $30,000 and another for $28,083) and $131,000 in cash. The lower court (a quo) states: “111) Approximately in the month of September 2003, in fulfillment of the agreed plan and distribution, [Nombre01 064] delivered one hundred thirty-one thousand dollars ($131,000) in cash to the accused [Nombre01 033] at his mother-in-law's house. Likewise, following the instructions given by [Nombre01 033], he prepared two checks in favor of [Nombre01 169], which were drawn at the same time but were recorded with different dates, different sequences, and for two different amounts, with the purpose of avoiding suspicion within the financial system. In this way, [Nombre01 064] drew check number 419 dated September 9, 2003, for an amount of thirty thousand dollars ($30,000.00) and Nº 425 for an amount of twenty-eight thousand eighty-three dollars ($28,083.00) dated September 25, 2003, both against checking account number [Valor 056] of [Nombre 080] at Saint George Bank, in favor of [Nombre01 169]. The accused [Nombre 033], prior endorsement by [Nombre01 169], deposited the checks in ACOBO's account. Subsequently, the proceeds thereof were recorded by that brokerage house as a credit to the investment account Nº [Valor 017] in the name of [Nombre01 169] and used to purchase 11 participations in a real estate fund for a total of fifty-five thousand nine hundred sixteen dollars and eighty-nine cents ($55,916.89), and for the remainder, a check was issued for two thousand one hundred fifty-two dollars and eighty-three cents ($2,152.83) in favor of Banco Interfin S.A. Subsequently, the defendant [Nombre01 033] admitted having received the amount of these two checks and another—already indicated—allegedly as a loan granted by [Nombre01 064], to whom he made a payment request, which was rejected by [Nombre01 064] due to the non-existence of such a loan, since such amounts came from funds from [Nombre01 091]...”. As has been indicated, it has been taken as proven a transfer of sums in cash whose only evidentiary support is the—illicit and implausible—statement of the cooperating defendant, as well as a transfer of funds (the mentioned checks) regarding which, although there is documentary evidence, its reason for being is unknown, as it is impossible to establish with certainty, a question that is essential if one intends to convict [Nombre01 033] for having instigated [Nombre01 064] to accept a promise of economic retribution with a specific content and specific purposes. In summary, the statement of [Nombre01 064] is essential in the case of [Nombre01 033]. Without it, it is not possible to take as proven that [Nombre01 064] received a promise of economic retribution about which he informed [Nombre01 033], and that the latter gave him the necessary impetus to accept it, also defining the percentages for distributing the criminal profit that might be obtained (and that, furthermore, it may be added, do not correspond to what was effectively received by one and by the other). For all the foregoing reasons, it is appropriate to annul the judgment insofar as it declared [Nombre01 033] an instigator of the crime of aggravated corruption by improper bribery committed by [Nombre01 064]. This being said, the question that must be asked is whether the proven facts that remain intact after suppressing the promise of a gift prior to the awarding of the 400,000 lines—and which is based, in turn, on illegal evidence—can be subsumed under any criminal offense. The answer to this question is no. Although it is true, and except for the transfers of cash funds, it is accredited that [Nombre01 064] transferred funds to [Nombre01 033] on various occasions, whether directly or through natural or legal persons close to him, the characteristic elements of crimes other than aggravated corruption by improper bribery were neither charged nor taken as proven, a topic that takes on paramount importance in the case of [Nombre01 033], since the only conduct attributed to him is having determined [Nombre01 064] so that the latter, as the principal, would accept a promise of economic retribution in relation to the matter of the 400,000 lines, in exchange for carrying out specific actions in three areas (migration to GSM technology, public tenders or open competitions, and a favorable vote for [Nombre01 091]). Therefore, only by violating the principle of correlation between accusation and judgment and including circumstances not contemplated by the requesting body at the time could [Nombre01 033] be considered the principal of another crime, even a residual one such as illicit enrichment. On the other hand, as explained when examining the legal situation of the accused [Nombre01 001], the criminal offense of illicit enrichment provides for both the acceptance of gifts presented and the acceptance of gifts offered. In the first case, the presentation and the material receipt of the retribution must occur during the performance of the office. In the second, both the offer and the acceptance must occur within the aforementioned period, it being irrelevant, as it is a subsequent unpunishable act, whether the public official obtains the pecuniary advantage once they leave the position that motivated its offer. In this matter, the typical conduct to consider is the first, namely, the acceptance of gifts presented, as it has not been possible to take as proven either the promise of economic retribution made to [Nombre01 064] before the awarding (and which constituted the basis for the crime of aggravated corruption by improper bribery), or any other offer of an improper advantage to [Nombre01 033] (which, in any case, was not charged). Having clarified this point, the conduct of [Nombre01 033] described in the proven facts, which remain intact after the exercise of hypothetical suppression (and which consist of receiving the economic advantages that were delivered to him by [Nombre01 064]) cannot be subsumed under numeral 346, subsection 3) of the Criminal Code (C.P.) applicable in this matter, since, with the exception of the seven certificates described in proven fact number 96, those receptions occurred after the accused ceased to be president of the country (cf. proven fact number 61 in relation to those already transcribed), which makes them atypical actions. Now, regarding the seven bearer certificates of deposit from Banco Internacional de Costa Rica S.A., although these were accepted during the exercise of office, as provided for in the criminal offense, after the hypothetical exclusion of [Nombre01 064]'s testimony, it is impossible to ensure that these were presented to him in consideration of his office. The person who delivered the certificates was [Nombre01 064], a person who at that time, besides being a high-ranking public official, was someone very close to [Nombre01 033]. Furthermore, the certificates were generated from the account of the cooperating defendant's mother, Mrs. [Nombre01 166], an account that had no link whatsoever to [Nombre01 060]. Said as much, and at least as far as these certificates are concerned, there are no elements to establish that [Nombre01 064] delivered them to [Nombre01 033] for being the [...]. As [Nombre66] correctly points out when analyzing the criminal offense of acceptance of gifts under Argentine legislation, which is also partly similar to our own, it is essential to demonstrate that the gift delivered was in consideration of the recipient's office, meaning it must be ruled out that it is linked to a different circumstance, such as friendship or another relationship apart from that office ([Nombre66], op. cit., pp. 280-281), which is impossible in this matter, for the reasons already stated. Finally, as if what has already been said were not enough, the criminal action to prosecute the crime of illicit enrichment would be time-barred. In that sense, note that [Nombre01 033] was questioned on October 15, 2004 (f. 552 to 558 recto, volume II). The statute of limitations for the crime of illicit enrichment was 18 months (because at that time the procedure was ordinary), so that period expired on April 15, 2006, a date by which neither had another cause for interruption of the calculation of the term occurred nor had the resolution declaring the case to be of complex processing become final (the latter occurred on June 23, 2006). That is, before the process changed its nature, a legal situation was consolidated in favor of [Nombre01 033] which, as the Third Chamber itself admitted when ordering the remittal, prevents applying the effects of Article 376, last paragraph, of the Code of Criminal Procedure. In that regard, and assuming the risk of being repetitive (since the topic was addressed when examining the cases of co-defendants [Nombre01 001] and [Nombre01 022]), the cassation body stated: “Thus, it is clear that the validity of the reducing effect on the statute of limitations as a result of the ordinary processing of the file was subject to the case continuing to be processed as ordinary; however, when the complex processing was ordered and became final, in the early stages of the process, the reducing condition of the statute of limitations periods varied, in accordance with numeral 376 cited, since the only exception to that reasoning would have occurred in the event that the fatal statute of limitations period had lapsed before that order, because in that event the extinction of the criminal action by statute of limitations would have occurred, as that circumstance would have become a consolidated legal situation, to which the effects of Article 376 cited could not have been applied.” (Resolution Nº 1847-2014, Considerando IV, f. 176,427 verso, volume XLIII, the underlining is not from the original). In summary, it is held that, even following the interpretation made by the Third Chamber regarding Article 376 of the Code of Criminal Procedure, in the sense that the finality of the resolution that declared the procedure to be of complex processing eliminated the reducing effect on the statute of limitations periods that took place before that finality, the truth is that on the date of that declaration, there was already a consolidated legal situation in favor of [Nombre01 033] that cannot be ignored, since the statute of limitations period had already elapsed. Similarly, the entry into force of Article 62 of Law N° 8422, called the Law against Corruption and Illicit Enrichment in Public Office, does not modify this conclusion, since [Nombre01 033] appeared to give his investigative statement on October 15, 2004, that is, before the cited regulation was published (on October 29, 2004).

As explained supra, the same cassation court, in resolution No. 2014-1847, specifically in Considerando IV, folios 176,429 to 176,431 front, recognized that it is not possible to give retroactive effect to a subsequent procedural law, not only because, in the case of procedural laws, the one that must be applied is the one in force at the time of performing the act, but also because the Political Constitution, in its article 34, contains a general prohibition against applying laws retroactively to the detriment of any person. The Public Prosecutor's Office affirms that if the statute of limitations had not yet operated when the cited law came into force, it is plausible to apply its effects to procedural acts performed previously, since “…it did not retroactively nullify the interrupting acts that occurred previously, as the defendant [Name01 033] erroneously interprets - but rather nullified the reduction of the outstanding balances, which were extended from that moment and for the full term, according to the abstract penalty of each crime ...” (F. 176,933 front, volume XLIV). The undersigned respect but do not share these arguments. It can be said in different ways and denied that article 34 of the Political Constitution is being violated, however, what is ultimately intended is that the effects of article 62, in force as of October 29, 2004, affect an interrupting procedural act that reduced the statute of limitations period and took place before that date, namely, on October 15, 2004, stripping all value from the regulations under which that act occurred (namely, article 33, first paragraph of the C.P.P.). Furthermore, it should be noted that it cannot be inferred from Law No. 8422 that the legislator had contemplated applying the statute of limitations rules contained in article 62 in a manner different from that which corresponds to any procedural rule (understood to be from its entry into force and for future events). Finally, it is important to note that in resolution No. 1847-2004, cited by the Public Prosecutor's Office as the basis for its position (f. 176,934 front, second paragraph), the Third Chamber adopted the thesis contrary to that which that procedural party presents, namely, that Law No. 8422 is applicable to procedural acts performed as of October 29, 2004, which is why only regarding the defendants who were questioned after that date ([Name01 018] and [Name01 006]) did it argue that, once the interruption occurred, the statute of limitations period ran in full under the terms indicated in article 62, subsection a) of the aforementioned law. In summary, and being that after the hypothetical exclusion process that has been carried out, the remaining evidence does not allow it to be deemed proven that [Name01 033] acted as an instigator in the crime of aggravated corruption in its modality of improper bribery committed by [Name02 064], and having dismissed the application of other residual criminal types to the proven facts that remain unaffected after said exclusion, the judgment declaring [Name01 033] instigator of a crime of aggravated corruption for improper bribery committed by [Name01 064] is annulled and, in application of the in dubio pro reo principle and for procedural economy, he is acquitted of all penalty and responsibility for that criminality. As it is unnecessary, a ruling on the other claims formulated by him personally, Name02 as well as on the appeals filed by his defense counsel, attorney Rafael Gairaud Salazar, is omitted.

• 6)[Name02 041] and [Name02 028]: The trial court deemed it proven that [Name01 041] and [Name01 028] committed three crimes of penalty of the corrupter in relation to the crimes of aggravated corruption by improper bribery attributed to [Name01 022], [Name01 001], and [Name01 064]. Additionally, a crime of penalty of the corrupter was attributed to [Name01 041] in relation to the crime of aggravated corruption by improper bribery committed by [Name01 068]. For the sake of order, the crimes understood to have been committed by both defendants will be analyzed first, and then the one attributed solely to [Name01 041]. 6.a) Crimes of penalty of the corrupter in relation to [Name 001], [Name01 022], and [Name 064]: It was deemed proven that in December 2000, [Name01 078] and [Name 041] promised [Name 064] a gift in exchange for him taking the necessary actions, as director of the I.C.E., to promote the migration from TDMA to GSM technology, prevent the bidding process for the 400,000 lines from being aborted, and finally, vote in favor of awarding said tender to the company [Name 091] (proven fact number 87, folio 15,438 front, volume XXXII). Regarding [Name 022], it was deemed proven that between late 2000 and early 2001, the defendants [Name01 041] and [Name01 078] asked him to take the necessary actions within the scope of his duties as an Executive of the I.C.E. in support of the interests of [Name02 091], primarily, to promote the migration from TDMA technology to GSM technology, promote purchases through tenders and prevent them from being aborted, and once the contracting process for the 400,000 lines was authorized, they asked him to vote in favor of awarding that tender to the company [Name 091], and in exchange for all of the above, they promised him the delivery of a gift, a promise that was accepted by [Name01 022] (fact number 117, f. 15,451 front). As for [Name01 001], the a quo deemed it proven that in the period between late 2000 and early 2001, the defendants [Name01 041] and [Name01 078] asked him to take the necessary actions within the scope of his duties as an advisor to the Executive Presidency of the I.C.E. and head of the execution of the 400,000 lines project, to make said contracting effective, favoring [Name01 091], and that in exchange for the above, they promised him the delivery of a gift, a promise that was accepted by the public official. Likewise, it was agreed that the delivery of the money would be conditional on the effective awarding of the offer that [Name01 091] would present to the I.C.E. (fact No. 131, f. 15,455 front). Regarding [Name01 028], in the judgment on the merits, he was considered a co-perpetrator of the aforementioned acts, upon understanding that in the division of tasks agreed upon with [Name01 041] for the commission of the crimes, he had the task of receiving funds from [Name01 060] and transferring them to the corrupt public officials (proven fact number 56, f. 15,431 front). This Chamber will not reiterate the arguments made by the a quo to deem it proven that [Name01 041], in collusion with other persons, made [Name02 001], [Name01 022], and [Name01 064] a promise of economic compensation prior to the awarding of the contract for the 400,000 lines, nor will it reiterate the reasoning that leads these appeals judges to conclude that the accreditation of that fact is unsustainable, since an extensive exposition on this has been made previously and to which the parties must refer. It suffices to emphasize as a starting point that, having hypothetically excluded the statement of [Name02 064], it is impossible to affirm that point with certainty. While it can be assured that [Name01 041] and [Name01 028], through [Name01 058]., delivered significant sums of money to the cited persons, it can only be sustained with a degree of probability (insufficient to support a conviction) that these sums were intended to fulfill a prior promise, to the point that other equally plausible hypotheses cannot be ruled out either, for example, that they were payments for a completed act (without a prior promise, logically), or that it was the public officials who requested or demanded their payment. Now, dismissing the promise of economic compensation not only prevents applying the criminal type of aggravated corruption by improper bribery in the case of the three mentioned public officials but also prevents applying that of the penalty of the corrupter contemplated in article 345 of the Penal Code in force at the time the investigated events occurred. This provision stated: “The penalties established in the five preceding articles are applicable to the one who gives or allows the public official a gift or undue advantage.” As can be inferred from its mere reading, it is a blank criminal provision, which refers to other articles of the same Penal Code to establish a subjective element additional to intent, which must characterize the performance of the prohibited conduct, Name02 as well as the penalty to be imposed. The provision prohibits giving or allowing a gift or undue advantage to a public official with one of the purposes indicated in the five articles that precede it. That is, regardless of the decision adopted by the public official in response to the corrupter's proposal, to penalize the latter it is essential that his conduct is directed at seeking certain purposes that have been contemplated by the legislator in the provisions prior to the aforementioned article 345. The complementary criminal type, Name02 as well as the sanction to be imposed, thus depend on the purpose for which the gift is given or permitted. For example, if the corrupter gave it so that the public official would perform an act contrary to his duties, or to not do or to delay an act proper to his functions, the corresponding penalty will be that of bribery, which ranges between two and six years in prison and disqualification from holding public office and employment for ten to fifteen years. If the corrupter gave it for an act fulfilled or omitted by the public official in that capacity, without a prior promise having mediated, the penalty to be imposed will be the one previously set forth reduced by one-third, as provided by the provision that contemplates the crime of acceptance of gifts for an act fulfilled. Similarly, if giving or permitting the economic payment or undue advantage under the terms described in the crimes of bribery or improper bribery has as its purpose the granting of public positions, pensions, or the celebration of contracts in which the administration to which the official belongs is interested, the penalty of the corrupter will range between 1 and 5 years if the acts are those described in improper bribery, and from 3 to 10 years in the case of bribery. In summary, to sanction the corrupter, it is essential to have demonstrated that he gave or permitted the gift with one of the purposes contemplated in the five articles preceding article 345 of the Penal Code, which in this case is not plausible for the reasons set forth in previous sections and which can be reduced, at the risk of falling into an excessive simplification of things, to the fact that without the statement of [Name01 064], from the analysis of the remaining evidence it is impossible to derive a judgment of certainty and not of probability, regarding the existence of the promise of the gift, its content, and the purposes it pursued. Once the illicit evidence has been hypothetically suppressed, it cannot be assured that [Name01 041], in collusion with [Name01 028], promised (conduct that, with an extremely questionable interpretation but endorsed by the Third Chamber, the a quo considered encompassed by the verb give) an economic advantage to several public officials, so that they would perform acts proper to their functions with the purpose that [Name01 091] would be favored with the contract for the 400,000 lines, a purpose which is precisely that contemplated in the crime of aggravated corruption, which is one of the five articles that precede that of the penalty of the corrupter and which, in turn, expressly refers to the crime of improper bribery, insofar as relevant here. Having excluded the promise of compensation, what remains unaffected is that [Name01 041], by common agreement with [Name 028], transferred monies from [Name01 060] to [Name 001], [Name01 022], and [Name01 064]; however, this alone does not constitute any crime. In the first place, it is not the penalty of the corrupter because, as already explained, it is impossible to establish with certainty what the reason for the payments was. Even hypothetically admitting that the monies delivered had some relationship with the field of mobile telephony, or even with the contract for the 400,000 lines, from the evidence examined only a judgment of probability can be drawn that they were intended to fulfill a promise made before the awarding of that contract, in exchange for the public officials performing certain acts proper to their office that favored [Name01 091], it being equally plausible to consider other, previously mentioned, hypotheses, for example, that the funds were delivered as a payment for an act fulfilled without a prior promise, or that it was the officials who solicited or demanded their payment, hypotheses which in any case were not charged by the Public Prosecutor's Office. In sum, from the evidence that has been lawfully obtained and incorporated into the proceedings, it is impossible to deem the promise of a gift that was charged to be proven (that is, a promise in exchange for public officials performing future acts, proper to their office, to favor [Name01 091] in obtaining the contract for the 400,000 lines) and, to that extent, the conviction imposed on [Name01 041] and [Name02 028] for the crime of penalty of the corrupter for aggravated corruption by improper bribery is unsustainable. It should be added that this result would not change even if the issue of the promise were set aside and emphasis were placed on the material delivery of the gifts, basically for two reasons, namely, i) because promising an economic payment to certain public officials (and not delivering the gift to them after the awarding) is the only conduct that, in the context of the facts charged and proven, can be subsumed under the crime of penalty of the corrupter for aggravated corruption by improper bribery and, ii) because the penalty of the corrupter is atypical in the case of illicit enrichment. Both arguments will be elaborated upon next. Regarding the first, according to the legal text in force at the time the investigated events occurred, the typical action in the crime of penalty of the corrupter consisted of giving or allowing gifts or undue advantages to a public official with the purposes described in the “five preceding crimes”, namely: i) corruption of judges; ii) offering or granting of a gift or payment (repealed in 2008); iii) acceptance of gifts for an act fulfilled; iv) aggravated corruption (criminal type which was the one applied by the trial court and whose typical description is integrated, by express provision of the legislator, with the criminal types of bribery and improper bribery, as applicable); and finally, v) bribery. As can be observed, whether one speaks of the promise of a gift (as the trial court did in considering that the verb promise is encompassed by the verb give), or of the material delivery of the payment (this time, in full consonance with the verb give contemplated in art. 345 C.P.), the penalty of the corrupter demands that the prohibited conduct be directed by one of the purposes described in the aforementioned criminal types, and in this case, it was neither charged nor deemed proven that the funds were delivered before the awarding to the public officials in exchange for them performing (future) acts proper to their functions that would be favorable to [Name01 091] regarding the issue of the 400,000 lines (this is the purpose). What was stated was that [Name01 041] and [Name01 028] gave the gift after the awarding, to fulfill a prior promise that pursued the purposes already mentioned. In other words, it is the promise of the gift, and not the material delivery thereof, that is the conduct that complements the crime of penalty of the corrupter with the criminal type of aggravated corruption and improper bribery and, therefore, only in relation to this can the application of the cited article 345 supra be considered. In consonance with the above, if that promise of a gift contemplated in the accusation cannot be deemed proven, the crime cannot be understood as constituted, this despite the fact that a transfer of funds to some officials has been proven. Regarding the second argument, it suffices to note that the facts which remain intact after hypothetically suppressing the reference to the prior promise are atypical, even if one started from the premise that [Name01 041] and [Name01 028] provided the economic advantages to [Name02 064], [Name01 001], and [Name01 022] in consideration of their office and during the exercise of their position, since the penalty of the corrupter is only provided for in relation to the five articles preceding that crime and illicit enrichment was not, at the date of the events, nor is it now, part of that group. The matter is so clear that the legislator placed illicit enrichment after the crime of penalty of the corrupter, with which the latter, by alluding to the “preceding articles,” does not include it. In sum, having dismissed, because it is impossible to prove without the illicit evidence, that [Name01 041], by common agreement with [Name01 028], made promises of a gift to [Name02 064], to [Name02 022], and to [Name01 001] so that they would perform acts proper to their functions, directed at ensuring that [Name01 091] would obtain the contract for the 400,000 lines, and being that, in addition, after this hypothetical suppression exercise that has been carried out, the facts that remain intact in the case of [Name01 041] and [Name01 028] (which essentially, are reduced to the material delivery of certain sums to the public officials) do not satisfy the requirements of any criminal type, the judgment declaring both defendants coparticipants liable for three crimes of penalty of the corrupter for aggravated corruption in the modality of improper bribery in material concurrence, in relation to [Name01 022], [Name01 001], and [Name01 064] is annulled, and in its place, for procedural economy and in application of the in dubio pro reo principle, they are acquitted of all penalty and responsibility for the aforementioned crimes. 6.b) Crime of penalty of the corrupter attributed to [Name01 041] in relation to [Name 068]: The trial court also convicted [Name02 041] as the liable perpetrator of a crime of penalty of the corrupter for aggravated corruption in the modality of improper bribery, this one committed by [Name01 068]. The following will explain why, after the declaration of illegality of the opportunity criterion granted to [Name01 064], it is impossible to deem that crime proven. The first thing that must be mentioned is that according to what the trial court stated in its majority opinion, the promise of the gift to [Name01 068] was made by [Name01 105], in collusion with [Name01 046]. For the a quo, [Name01 041]'s connection to this fact results from his condition as head of [Name01 091] in the country and from having acted with [Name01 105] (representative of [Name01 114].) in the same way he did with [Name01 028] (representative of [Name01 058].), using those corporations to sign consulting contracts that did not correspond to reality, with the purpose of introducing the economic resources of [Name01 060] that were then distributed among the public officials. From folios 15,767 and following of volume XXXII, the a quo concluded that a promise of a gift was made to [Name01 068] (for which responsibility must be attributed to [Name01 041]), by virtue of the following: i) With evidence No. 747 it is determined that [Name01 068] was prosecuted for the crime of aggravated corruption in the modality of improper bribery, availing himself of an abbreviated procedure whereby he was convicted (judgment No. 586-07 of 14:50 hours on October 16, 2007). The gift, according to what was said in that resolution, was promised through [Name02 114]., whose representative, [Name01 105], also submitted to an abbreviated procedure (judgment No. 260-09 of 14:15 hours on July 21, 2001). According to the trial court, these judgments have been considered “…in relation to those who submitted to such procedures and only with the type of crime for which they were convicted, the sanction, parties, and eventual reparations or other merely referential data, without in any case evaluating the proven facts and other content ...” (F. 15,768 front). ii) The conception of the criminal plan responded to several antecedents, one of particular importance, namely, that [Name01 091] was not considered by ICE in the matter of mobile telephony, which led [Name01 041] and [Name 078] to deem it necessary to channel monies from [Name01 060] to grant gifts to public officials; iii) from the documentary evidence (namely, official letter No. 813 of January 23, 2001, from the Office of the Comptroller General of the Republic and the minutes of sessions No. 5271 and 5277 of the ICE Board of Directors), it is inferred that on January 23, 2001, the Office of the Comptroller General of the Republic authorized the abbreviated competitive procedure for the contracting of 400,000 cellular lines of GSM technology. Despite this, the Board of Directors unanimously authorized direct contracting No. 108792 to expand the GSM mobile network to [Name01 091], which satisfied its commercial interests and, incidentally, facilitated its entry into GSM technology. However, in the following session, [Name01 068] requested that this decision be revoked, which did not prosper. This led [Name01 041] and [Name01 078] to glimpse the need to recruit this board member, as they did with [Name01 064], [Name01 191], and [Name02 001] (f. 15,768 and 15,769 front); iv) to promise the gift to [Name 068], [Name01 105] was used. The corporation [Name02 114]. belongs to him, which originally represented [Name 060] in the country. Once [Name01 091] was established, [Name01 114]. remained within its facilities and offered them assistance in the technical area (f. 15,769 front); v) due to the good relationship there was with [Name01 105] (and which several witnesses attest to), and being that [Name01 114]. appeared then as a consultant for [Name01 292], a company that in turn represented [Name02 060], simulated consulting contracts were signed to generate the funds of [Name01 060] that were later delivered to public officials (f. 15,770 to 15,772 front); vi) there is no direct evidence of the request from [Name01 105] to [Name01 046] to facilitate the meeting with [Name02 068], however, [Name01 046] had a previous connection with [Name01 105] and had a relationship of trust with [Name01 068]. Likewise, [Name01 046] performed lobbying efforts to approach public officials and, before the investigated events, had performed those efforts for [Name01 091].

He also acted as an intermediary in the payment of the bribe (dádiva) made to [Nombre01 068], with [Nombre01 046] additionally receiving a large sum from [Nombre01 114]. for bringing [Nombre01 105] and [Nombre02 068] together, and then transferring that bribe (dádiva) to [Nombre01 068], which <span style="font-family:Arial; font-style:italic">“…reflects his knowledge that it was the bribe (dádiva) paid to [Nombre01 068] for his affirmative vote for [Nombre01 091] on the 400,000 cellular lines and because [Nombre01 068] and [Nombre01 105] were sentenced for convergent crimes.”</span><span style="font-family:Arial"> (F. 15.773 front). From this point, the ruling conducts a more exhaustive examination of the evidence outlined to demonstrate the promise of a bribe (dádiva), specifically, the link between [Nombre01 046], [Nombre01 105], [Nombre01 114]., [Nombre 060], and [Nombre01 091] Costa Rica (f. 15.773 to 15.775 front); the lobbying (lobby y cabildeo) work that [Nombre02 046] had done in the past before public officials for the benefit of [Nombre01 091] (f. 15.775 to 15.777 front); the link between [Nombre01 068] and [Nombre01 046] (f. 15.777 to 15.781 front), a connection that also arose before the facts of interest here and is evidenced by the handling of the illicit profits and the meetings between [Nombre01 105] and [Nombre01 068] (f. 15.781 to 15.783 front), encounters that according to [Nombre01 193] took place on at least two occasions, in Coronado, the place where the company [Nombre 085]. is located, of which [Nombre01 068] is the president and judicial and extrajudicial representative. Furthermore, the resolution points out, although there is no proof that [Nombre01 046] was present at those meetings, it is clear that it was he who put [Nombre01 105] in contact with [Nombre01 068] (f. 15.781 to 15.783 front). The judgment also explains how [Nombre02 068], as a member of the board of directors of ICE, participated in the vote of August 28, 2001, where the award was decided (f. 15.783 to 15.784 front). For the court, a promise of a bribe (dádiva) was made to [Nombre01 068] for him to vote in favor of this award, and on this matter, it refers to what was stated regarding the plan devised by [Nombre01 041] and [Nombre01 078], to propose consulting contracts in favor of two companies that had carried out commercial activities with [Nombre01 060], one of them [Nombre01 114]., whose manager is [Nombre01 105]. Those contracts were simulated, the company became a creditor of [Nombre01 060] and then, with the resources received, the promised bribe (dádiva) was paid to [Nombre01 068]. The trial court adds that while the funds were transferred to [Nombre01 022] and [Nombre01 064] through [Nombre02 058]. ([Nombre 028]), they were delivered to [Nombre01 068] through [Nombre01 114]. ([Nombre 105]), given that there was a single purpose and a common root ([Nombre01 041] and [Nombre01 078]). Additionally, the sums paid are similar. For the judges who signed the majority vote, the fact that [Nombre01 068] was a director of ICE and that [Nombre01 046] facilitated the meeting between him and [Nombre01 105] before the vote awarding the 400,000 lines allows the conclusion that the bribe (dádiva) was offered at that moment in exchange for his affirmative vote. And it is that [Nombre01 046] operates in the environment and knows the directors, and this is also evidenced by his approach to [Nombre01 064] to ask for help with the amounts [Nombre01 091] owed him. In the same vein, the transfer of money via [Nombre01 060] - [Nombre01 114] - [Nombre01 046] - [Nombre01 068] demonstrates that the act carried out by the latter was to receive a payment for an act proper to his functions and that, prior to this act, the promise of compensation was made to him. Finally, it was stated that [Nombre01 046] had knowledge that the money offered and delivered through him to [Nombre01 068] was for having cast his favorable vote for the award of the 400,000 lines. In support of this conclusion, the court refers to the atypical nature of the 400,000-line contract, not only because of its amount but because of the enormous demand that existed at the time. From the testimonial evidence (statements of [Nombre01 128], [Nombre01 195], and [Nombre01 095]), it is gathered that it was a momentous project in the history of ICE. This matter was known by [Nombre 046], not only because he moves in the telecommunications sphere but because of his relationship with [Nombre01 105]. Furthermore, the matter was widely publicized. On this point, the court also highlights the statement of [Nombre02 064]. He indicated that at the meeting in [Nombre01 094], [Nombre 041] and [Nombre02 078] spoke to him about the importance for [Nombre01 091] that ICE migrate to open telephony schemes, that it use the tender as a method for acquiring technology, and that he vote in favor of the company, also because, as [Nombre01 041] and [Nombre01 078] told him, on a recent date, [Nombre01 046] had told them that he could influence that decision in a way detrimental to the interests of [Nombre01 091], and had even announced that he would have the support of the Executive Branch, a statement that for the court demonstrates [Nombre01 046]'s knowledge of what [Nombre01 091]'s priorities were (migration and tender), as well as of the procedure defined at the beginning of 2001 by the Contraloría General de la República. It was also considered that due to the closeness between the two, [Nombre01 046] knew about [Nombre01 068]'s position at ICE. This closeness was also evidenced by the way the bribe (dádiva) was received and disposed of (specifically, [Nombre01 068] asked [Nombre01 046] for a bank account to receive part of the payments). Lastly, the reference to the convictions handed down against [Nombre01 068] and [Nombre01 105] and the acceptance of charges made by both regarding the facts was reiterated (f. 15.785 to 15.789 front). </span><span style="font-family:Arial; font-weight:bold; font-style:italic">vii)</span><span style="font-family:Arial"> Likewise, the a quo court examined the consulting contracts signed by [Nombre02 114]. with [Nombre01 091], the money delivered to [Nombre01 068] by this means, as well as the profits obtained by [Nombre01 046] and [Nombre01 105] (f. 15.789 to 15.828 front). Based on all the foregoing, it convicted [Nombre01 046] for the crime of penalty for the corruptor (penalidad del corruptor) by aggravated corruption in its modality of improper bribery (cohecho impropio) in relation to the facts attributed to [Nombre01 068] (f. 15.833 front and following). <span style="text-decoration:underline">Now, in the case of [Nombre01 041]</span>, what the appealed ruling stated is that this accused acted in common agreement with [Nombre01 105] and [Nombre01 046] to manage to approach [Nombre01 068] and make the remunerative offering. Furthermore, that [Nombre01 041] was the common root between the distribution of bribes (dádivas) via [Nombre01 058]. and via [Nombre02 114]., such that he knew that the consulting contracts signed by [Nombre01 105] were as simulated as those of [Nombre01 058]. and that this mechanism is the one that had been implemented to provide resources to the illicit arm that would allow paying money to [Nombre01 068], with the contribution of [Nombre01 046] regarding the indication of the accounts and other data that had to be coordinated for each delivery (f. 15.726 front, volume XXXII). <span style="font-weight:bold; text-decoration:underline">Having analyzed the foregoing reasoning, this chamber considers that, after hypothetically excluding the “testimony” of [Nombre01 064]</span> <span style="font-weight:bold; text-decoration:underline">, it is not possible to demonstrate with certainty that [Nombre02 041] was a co-perpetrator of a remunerative promise made to [Nombre01 068] by [Nombre01 105]</span>. As has been pointed out, this court does not call into question [Nombre01 091]'s situation in the mobile telephony sphere, the delivery to public officials of significant sums (in similar amounts, moreover) carried out after the 400,000 GSM line contract was awarded, the confidential relationship between [Nombre01 046] and the leaders of [Nombre01 091], and even the mechanism through which the funds that would later be distributed among the public officials entered (understood as consulting contracts signed with [Nombre01 058]. and [Nombre01 114].). However, it cannot be ensured with certainty that the sums [Nombre01 068] received were to fulfill a promise - prior to the award - made to him by [Nombre01 105] in common agreement with [Nombre01 041]. Although it can be taken as certain that this last defendant distributed funds from [Nombre01 060] among several public officials, regarding the promise and the purposes pursued with it, the fundamental evidence is the statement of [Nombre01 064], to the point that if this is hypothetically excluded, it is not plausible to rule out other hypotheses, for example, that these were economic compensations accepted for a completed act without a prior promise, that the public officials themselves induced that payment, or that if a promise existed, it had a different content. See also that it was [Nombre01 064] who, in the debate, spoke of the concern of [Nombre01 041] and [Nombre01 078] about what [Nombre02 046] had in turn told them, in the sense that regarding the granting of the 400,000-line contract, he could influence it and harm [Nombre01 091], a statement that the a quo court used to understand the interest of the corruptors in approaching ICE directors before that contract was awarded. Even the role that the majority vote assigned to [Nombre01 046] in this scheme was established largely thanks to what was said by [Nombre01 064], since - according to him - [Nombre01 046] approached him to help him collect money from [Nombre01 091] that he was owed for his services. So clear is the weight held by the testimony of [Nombre02 064] that, in this section of the judgment, appeal was made to the parallelism between his situation and that of [Nombre01 068], stating that they are two of the directors who received money from [Nombre01 091] and who received promises of bribes (dádivas), a conclusion reached because the former said so and because [Nombre01 068] was sentenced for it. However, if the statement of the cooperating defendant is hypothetically suppressed and bearing in mind that the convictions of [Nombre01 068] and [Nombre01 105] have been handed down within the framework of an abbreviated procedure, where the acceptance of charges is formal in nature, the possibility of establishing the promise of a bribe (dádiva) with certainty and, in particular, of involving [Nombre01 041] with that promise, vanishes. Again, this chamber has no doubt that [Nombre01 041] paid a series of public officials using two corporations ([Nombre01 114]. and [Nombre 058].). One can even suspect that those payments were related in some way to [Nombre02 091]'s incursion into the mobile telephony market; however, it is not possible to ensure that those payments were made to fulfill promises of bribes (dádivas) made before the award of the 400,000-line contract, in exchange for it being awarded to [Nombre01 091], especially when it is also possible to consider other alternatives, e.g., that they were economic compensations given for completed acts, without a prior promise (as [Nombre01 064] had said), or that it was the public officials who demanded the payment, as [Nombre02 041] himself indicated at some point (cf. regarding this, the statement of [Nombre01 116], analyzed in previous sections). To that extent and in application of the principle in dubio pro reo, the judgment is annulled insofar as it convicted [Nombre01 041] for a crime of penalty for the corruptor (penalidad del corruptor) by aggravated corruption in its modality of improper bribery (cohecho impropio), in relation to the facts attributed to [Nombre01 068], and in its place, he is acquitted of all penalty and responsibility for the cited crime. For the reasons set forth in this considerando and as it is unnecessary, a ruling is omitted regarding the other claims contained in the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, as well as those raised by attorney Mario Navarro Quirós, private defender of [Nombre02 028], with the exception of the third ground he called “Erroneous and inadequate legal grounds. Violation of due process and the right to defense due to erroneous application of Article 110 of the Penal Code,” since this, being related to the confiscation (comiso) of some assets belonging to legal entities linked to [Nombre01 028], demands a more in-depth analysis. Regarding said ground, this chamber will rule later.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">VII.- Cassation appeal (Recurso de casación)</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold">filed by attorney Wilson Flores Fallas and sentence appeal (recurso de apelación de sentencia)</span><span style="font-family:Arial; font-weight:bold"> filed by attorney Nazira Merayo Arias, defenders of [Nombre 006]. </span><span style="font-family:Arial">In a brief visible in volume XXXVI, from folios 17.102 to 17.149 front, attorney Wilson Flores Fallas, public defender of [Nombre01 006], filed a cassation appeal against ruling No. 167-2011 cited above, which was reiterated by attorney Nazira Merayo Arias when filing the sentence appeal. In fact, in volume XXXIX, starting at folio 17.292 front, this professional explained that because attorney Flores Fallas was holding positions in the judiciary, she took over the defense of the defendant, indicating to the latter that, after the conversion of the cassation appeal into a sentence appeal, the grounds and arguments set forth in the first would be maintained. Having verified that this was indeed the case, as both briefs present the same content and because the first was prepared by attorney Flores Fallas, this chamber will refer only to him. <span style="text-decoration:underline">Content of the appeal</span>. In an initial exposition, attorney Flores Fallas stated that the act is time-barred (prescrito); that substantive law was erroneously applied by describing three independent crimes without describing the elements (objective and subjective) of the criminal type of illicit enrichment (enriquecimiento ilícito); that the principles of correlation between accusation and judgment, of in dubio pro reo, and of legality were violated when evaluating the evidence; and that the principle of derivation was breached. <span style="font-style:italic; text-decoration:underline">Given the existing relationship, the claim that the appellant denominates as the “Single ground of cassation on the merits” and the one denominated “Third ground as to form”</span><span style="font-style:italic"> will be resolved jointly.</span><span style="font-style:italic"> </span><span style="font-weight:bold">Single ground of cassation on the merits. Erroneous application of substantive law, 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 (enriquecimiento ilícito) that is charged, corresponding to Article 346, subsection 3) of the Penal Code. </span>According to the public defender, the judgment incurs a violation of the principle of correlation between accusation and judgment. After citing Articles 363, subsection b) and 369, subsection h), both of the Código Procesal Penal, attorney Wilson Flores states that the accused facts, identified with numbers 199 to 211, present problems with respect to the typical description of the crime of illicit enrichment (enriquecimiento ilícito). In fact 201 of the accusation, it is established: “<span style="font-style:italic">… 201) The defendant [Nombre01 041] and the indictee [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006], in consideration of his office, a bribe (dádiva) consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him”. </span>From the foregoing, it is gathered that [Nombre01 006] was charged with a crime of illicit enrichment (enriquecimiento ilícito); however, subsequent to that accused fact, it is not described to which fact or circumstances it refers, an aspect that is essential, as the Public Ministry opted for the hypothesis of the “<span style="font-style:italic">acceptance of a bribe (dádiva) presented</span>,” which means that the presentation of each bribe (dádiva) and the correlative and simultaneous acceptance of it constitutes an independent typical conduct. In the case of a plurality of actions like the one the accusation contains, in facts 203, 208, and 210, there would then be a real concurrence of crimes (concurso real de delitos), so for each crime, all the requirements established in the criminal type must be contemplated. For the defender, according to facts 203, 208, and 210, there were three independent presentations of a bribe (dádiva), so it was necessary to describe the elements of the criminal type of Article 346, subsection 3) of the Penal Code in each case, in order to have a clear, precise, and detailed accusation. The appellant says: “… <span style="font-style:italic">However, as I anticipated, the Public Ministry does not describe that the presentation of bribes (dádivas) was in consideration of the office, so the description of these independently accused facts does not describe essential elements such as the objective elements, among them the condition of being a public official, in the function of the position, because the bribe (dádiva) by itself, as described in facts 203, 208, and 210, is a common element to several crimes such as bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of bribes (dádivas) for a completed act, penalty for the corruptor (penalidad del corruptor, 345 bis), illicit enrichment (enriquecimiento ilícito), with the absence in the description of those three independent facts denoting the absence of essential elements of the criminal type of 346, subsection 3…” </span>(F. 17.104 and 17.105 front).<span style="font-style:italic"> </span>Following this, attorney Flores Fallas adds: “… <span style="font-style:italic">In fact 203, it is charged: “Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre02 078] presented to the defendant [Nombre01 006] a bribe (dádiva) consisting of investment certificates Nos. 22400200037170, Identificacion06 Identificacion07 and Identificacion08, all issued to the 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)</span>”. <span style="font-style:italic">In fact 208, it is charged: “Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre01 041]</span> <span style="font-style:italic">and [Nombre01 078] presented to the defendant [Nombre01 006] a bribe (dádiva) consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 Identificacion10 Identificacion11 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 corruptors [Nombre01 041] and [Nombre01 078], presented to the defendant [Nombre01 006] a third bribe (dádiva) consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 Identificacion13 Identificacion14 and Identificacion15, 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 [Nombre01 006] and disposed of as follows:..”. </span>(The reproduction is literal, folios 17.105 and 17.106 front).<span style="font-style:italic"> </span>For the defender of [Nombre01 006], the previous description does not contemplate the objective and subjective type elements of illicit enrichment (enriquecimiento ilícito) and, to that extent, what is described are atypical conducts: “… <span style="font-style:italic">For example, the absence of the subjective element motivating the presentation of the bribe (dádiva) and which is what moves the subject presenting it, is not described, being an essential element that must be known by the active subject of the crime, since the criminal figure of illicit enrichment (enriquecimiento ilícito) its subjective criminality is intentional</span>…”. (F. 17.106 front). The harm caused, the appellant indicates, consists in having been convicted for the crime of illicit enrichment (enriquecimiento ilícito) even though the accusation does not contemplate the essential elements of the criminal type. If the Public Ministry charged a material concurrence and described three bribes (dádivas), but did not describe the elements of the criminal type of illicit enrichment (enriquecimiento ilícito), the court could not consider the behavior as criminal. <span style="font-weight:bold">Third ground as to form. Injury to the principle of correlation between accusation and judgment. The Court modifies the actions charged against [Nombre01 006] in the formal accusation (acusación fórmula) (sic) by the Public Ministry and considers as proven facts actions that were not charged, because in the former they do not integrate an element of the type, and the new account performed by the court integrates the elements of the type</span> ( <span style="font-style:italic">sic, </span>f. 17.112, volume XXXVI). In this ground, identified as the third as to form (in reality, it is the second as to form), based on Articles 363, subsection b) and 369, subsection h) of the C.P.P., attorney Flores Fallas states that: “… <span style="font-style:italic">The appealed judgment incurs a violation of the principle of correlation between accusation and judgment, pursuant to Articles 363, subsection b and 369, subsection h, both of the Código Procesal Penal, an aspect that is sanctioned with nullity. In the facts described in the accusation going from fact number 199 up to fact 211, they present problems regarding the description of the criminal types charged, namely, 3 crimes of illicit enrichment (enriquecimiento ilícito). In the fact numbered as 201 of the accusation, it is described: “201) The defendant [Nombre01 041]</span> <span style="font-style:italic">and the indictee [Nombre01 078], as representatives of the company [Nombre02 091], presented to the accused [Nombre01 006], in consideration of his office, a bribe (dádiva) consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.” … In fact 203, it is charged: “Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre01 078] presented to the defendant [Nombre01 006] a bribe (dádiva) consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion07 and Identificacion08, all issued to the bearer on December 10, 2001, with a maturity date of January 11, 2002, from Banco Cuscatlán of Costa Rica, each for ten thousand dollars ($10.00), 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, [Nombre01 041]</span> <span style="font-style:italic">and [Nombre01 078] presented to the defendant [Nombre01 006] a bribe (dádiva) consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 Identificacion10 Identificacion11 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 corruptors [Nombre01 041] and [Nombre01 078], presented to the defendant [Nombre01 006] a third bribe (dádiva) consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 Identificacion13 Identificacion14 and Identificacion15, 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 [Nombre01 006] and disposed of as follows:” From the foregoing, it is obtained that Mr. [Nombre01 006] is charged with a crime of illicit enrichment (enriquecimiento ilícito); however, after this accused fact where the elements of the criminal type of illicit enrichment (enriquecimiento ilícito) are described in relation to a crime of illicit enrichment (enriquecimiento ilícito) corresponding to fact 201 of the accusation; nevertheless, the Public Ministry describes in facts 203, 208, and 210 three independent presentations of a bribe (dádiva), which made it necessary or fundamental, to meet the requirements of a clear, precise, and detailed accusation, to describe the elements of the criminal type of illicit enrichment (enriquecimiento ilícito) from Article 346, subsection 3 of the Penal Code.

However, as the Public Prosecutor's Office indicated by not describing that the presentation of gifts was in consideration of the office, the description of those facts charged independently does not describe essential elements such as the objective elements, among them the condition of public official, in function of the position; because the gift by itself as a description in facts 203, 208 and 210, is an element common to several crimes such as bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for an act performed, penalty of the corrupter (345 bis), illicit enrichment (enriquecimiento ilícito); and the absence in the description of essential elements of the criminal type of article 346 subsection 3, dealing with three independent facts, leads us to point out that we are in the presence of three charged behaviors that are atypical. It is fundamental, to consider as an essential aspect, that the Public Prosecutor's Office opts for the hypothesis of the "acceptance of a gift presented," which means that because the presentation of each gift and the correlative and simultaneous acceptance of the same, constitutes an independent typical conduct, each time it occurs, and in case of plurality as described in the accusation, facts 203, 208 and 210 necessarily generates a real concurrence of crimes (concurso real de delitos), and therefore, in each case all the requirements established in the criminal type must be met. Therefore, as the accusation opted for the formula the "acceptance of a gift presented," it not only constitutes a fact independent from the previous one, but also demands the requirements of typicality.

However, the Court has as proven facts: "190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Direction of the Switching Department of the I.Nombre72., a situation that generated illicit enrichment (enriquecimiento ilícito) for him. Said gift was paid in three installments... 191) It was Nombre02 as the defendant [Name01 041] and the indictee [Name01 078] and following the distribution dynamic of the money deposited in the checking account of [Name02 058]. Nombre68° [Valor 012] in the Cuscatlán International Bank coming from [Name02 060], ordered [Name02 028] the purchase of various certificates for the delivery of the following gifts: 192) Without specifying a date, but after December 10, 2001 and before January 10, 2002, [Name01 041] and [Name02 078] presented to the accused [Name01 006] a first delivery of the gift consisting of the investment certificates Nombre68°s Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to bearer on December 10, 2001, with expiration date January 11, 2002, of 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 the dissenting vote, which highlights this situation denounced in the conclusions by this representation, by pointing out: "In the case of [Name01 006], as already indicated, the Accusation starts from the hypothesis that three presentations of a gift and three correlative acceptances or receptions of the presented gift were made, however, by starting from the assumption that they are independent crimes, the Public Prosecutor's Office should have, in each case, made a description of all the factual circumstances that fulfill the criminal type of illicit enrichment (enriquecimiento ilícito). In other words, each time reference is made to a presentation of a gift and the acceptance of the same by [Name01 006], it should have, at a minimum, been indicated that the presentation of the gift was made in consideration of the office of [Name01 006] as an official of the Instituto Costarricense de Electricidad, and that, [Name01 006], aware of the circumstance that motivated the presentation of the gift, accepted it while he was in the exercise of his position. The foregoing was not done, as can be inferred from the wording of the facts of the accusation numbers 203, 204, 208, 209 and 210. In fact 203 it is said that after December 10, 2001 and before January 10, 2002, [Name01 041] and [Name01 078] presented to the accused [Name01 006] a gift, consisting of five certificates of $10,000 dollars each, a gift that was accepted by the aforementioned co-accused (fact 204). In fact 208 with the same wording, the presentation of three certificates to [Name01 006] for a total of $20,000.00, between July 2, 2002 and August 5, 2002, is described, a gift that was accepted by said accused. Fact 210 with the same description refers to the third gift presented between December 17, 2002 and January 21, 2003, equally accepted by [Name02 006]. The description of facts contained in the accusation, in the manner referred to in the previous paragraph, contain atypical conducts, because they do not indicate essential elements for being so, in relation to the criminal type of illicit enrichment (enriquecimiento ilícito), such as the subjective element that motivates the presentation of the gift and which is what moves the subject presenting it to do so, an element that also must be known by the active subject of the crime, since it is a criminal figure whose subjective typicality is malicious. The foregoing could have been corrected with a general fact stating that the typical elements that are missing were present on all the occasions that gifts were presented to [Name01 006] and that he accepted them, however, that was not done either, because the only fact that makes reference to the subjective element is number 201. There one can read the following: '201) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him.' (See dissenting vote of co-judge Camacho Morales).

Note, how the Court introduces in considering "III" proven facts number 190, that the gift was made in three payments, by indicating: "190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) for him. Said gift was paid in three installments... So that with said wording by the Trial Court we go from three independent actions, which do not describe a behavior adjusted to a criminal type, to one action that does describe the elements of the criminal type of illicit enrichment (enriquecimiento ilícito) of article 346 subsection 3 of the Penal Code. The same trial court highlights when it explains in different considerings each gift separately, that in reality they do not consider that it is one gift but rather three gifts...

In this way the Trial Court corrects the work of the Public Prosecutor's Office, without the accusing body requesting it, and providing an undue advantage the sentencing court compromising the constitutional principle of impartiality. Despite the fact that the accusation presented by the Public Prosecutor's Office constitutes the factual limit to which the sentence can refer, the Trial Court takes as proven a fact different from that described in the accusation, and said modification affects the right of defense, because what use are the conclusions provided in the debate, if the Court drafts a typical fact distinct from the three facts charged independently. From the reading of the accusation it is never said that Said gift was paid in three installments, so how can the Court arrange things to the detriment of the interests of the accused, and in this way ignore the constitutional jurisprudence that has repeatedly indicated that the modification of the charged facts by the Court at the time of sentencing, substantially affects the content of the principle of due process. Furthermore, it has been repeatedly indicated that the charged factual framework on which the trial is based cannot be varied, because there must be correlation between accusation and sentence, given that such issues form part of the right of defense because only by knowing the attributed facts can a defense be formulated and if they are altered it makes it impossible to effectively exercise that right.

Based on the principle of correlation between accusation and sentence, it is intended that in the sentence no variations be produced to the factual framework that was imputed that affect or prevent the exercise of an adequate defense, which as in the specific case implies an essential modification in penally relevant aspects of the conduct submitted to trial, where from three independent charged facts where the description of the typical elements of the crime of illicit enrichment (enriquecimiento ilícito) are absent, the Court makes a variation that affects the essential core of the accusation by adding Said gift was paid in three installments. Hence, the comparison in the sentence between the charged facts and the proven facts, allows one to derive that the Court incurred in the vice that is pointed out, because the proven fact is essentially different from the charged fact, by integrating that Said gift was paid in three installments. From the foregoing, it is obtained that the sentence broke the logical unity of the process by making in it a description different from that charged, which differs from that originally charged by the Public Prosecutor's Office by not describing in any of the three independent facts of illicit enrichment (enriquecimiento ilícito) the elements of the type, both the objective and the subjective elements; hence, it is, in my opinion, an infraction of one of the basic rules on which our criminal procedural law is founded, as the Constitutional Chamber has clearly expressed, especially in judgment number 1739-92. Likewise, the doctrine also agrees with the need that the charged facts be the sole basis to determine the conviction or acquittal of the accused..." (F. 17,112 to 17,119 front, volume XXXVI. The transcription is literal).

After citing Resolution No. 00481-95, of the Constitutional Chamber, which deals with the issue of correlation between accusation and sentence, the appellant considers that in the case of his client, the court has varied the charged factual framework. In it, three independent facts of illicit enrichment (enriquecimiento ilícito) were contemplated, without describing the essential elements of the criminal type. Nombre02 things, without the variation, the a quo would have concluded that the crime of enrichment of article 346 subsection 3) of the Penal Code was not configured in this matter.

**VIII.- The arguments cannot succeed.** As already explained in the first considerings of this resolution, the Third Chamber resolved these claims in cassation, concluding that the principle of correlation between accusation and sentence had not been breached; that the old art. 346 subsection 3) of the Penal Code had not been erroneously applied to the particular case; and that in the accusation formulated by the requesting body all the elements of the criminal type of illicit enrichment (enriquecimiento ilícito) were contemplated. In this regard, it was indicated: ***"XVI.Section VII of the challenge raised by the Public Prosecutor's Office. Cassation Motives related to the erroneous application of substantive norms by the Court of Appeals. XVII.*** According to articles 33 and 41 of the Constitution; 365 and 468 subsection b) of the Code of Criminal Procedure, in the **second motive of the seventh section of the Cassation Appeal of the Public Prosecutor's Office**, erroneous application of the procedural precept 365 of the Code of Rites is alleged, with respect to the 'configuration of a lack of correlation between accusation and the condemnatory sentence dictated by the Trial Court by convicting the accused [Name 006] for the crime of Illicit Enrichment (Enriquecimiento Ilícito)' (Cf.f.175347 of volume XLII of the file). For the accusing entity, the ruling of the Court of Appeals incurs in a clear violation of the aforementioned article 365, when it dictated on appeal, the acquittal of [Name01 006] for the crime of Illicit Enrichment (Enriquecimiento Ilícito) and considered that the accusatory piece described an inconclusive action that had to be complemented by the Criminal Court of the Treasury and the Public Function, since both the charged facts and those accredited in sentence 167-2011 are similar, by attributing the same specific criminal actions to the defendant [Name01 006], except because the proven facts introduce the clarifying phrase 'said gift was paid in three installments' (Cf.f.175347 to 175352 of volume XLII of the file). On the subject, the appellants cite, as relevant, the votes of the Third Chamber numbers 2006-0503, of nine o'clock, on June two, two thousand six; 2007-0382, of nine forty, on July twenty-five, two thousand seven and 2009-1667, of sixteen fifteen, on November twenty-six, two thousand nine, from which they extract that the modifications for the constitution of the vice of lack of correlation between accusation and sentence cannot be referred to formal aspects but to substantial variations that significantly affect the exercise of the defense by being surprising, which implies that for the individual, the phrase introduced by the Trial Court to the accredited facts, is in no way unexpected for the accused or his technical defense, because besides there being an identity between the relationship of charged facts and the proven ones, it is noted that [Name01 006] was notified of those actions, from the first stages of the process and that the accusation describes the admission of a gift consisting of money, which was presented by the co-accused [Name01 041] and [Name01 078] in consideration of his position as a public official, and the prosecuting entity does not appreciate from where the Ad quem derives that the introduced phrase 'surprises the defense, in the sense that it condemns for a gift in installments (folio 174495 reverse of the main file)...' (Cf.f.175354 of volume XLII of the file), because rather, the accused [Name01 006] was charged by the Public Prosecutor's Office for three facts that described three gifts that constituted, at the same time, three crimes of Illicit Enrichment (Enriquecimiento Ilícito), while the proven facts, with the introduction of the mentioned phrase, describe the commission of a single crime paid in three installments, which in vigilance to the 'principle of favorability' (Cf.f.175355 of volume XLII of the file), provided in article 365 of the Code of Criminal Procedure, is more beneficial for the defendant and his defense. As a grievance, an incorrect issuance of the acquittal of [Name01 006] is set forth, since the Trial Court far from harming the defendant, introduced a favorable circumstance by means of which the accredited facts were reclassified to a single crime of Illicit Enrichment (Enriquecimiento Ilícito) and not three as sought by the Public Prosecutor's Office, managing as a petition, the annulment of the ruling and the correct interpretation in accordance with the corresponding law, maintaining the condemnatory sentence ordered by the A quo against [Name01 006]. **In the third motive of the seventh section of the appeal**, it is also claimed that articles 33 and 41 of the Political Constitution were disregarded, Nombre02 as well as numeral 468 subsection b) of the Code of Criminal Procedure and the old article 346 subsection 3) of the Penal Code was erroneously applied, regarding the configuration of the crime of Illicit Enrichment (Enriquecimiento Ilícito) charged to [Name01 006]. From the prosecutorial approach, fact 201 of the accusatory piece attributed to [Name02 006], a factual picture that comprised the objective and subjective elements of the criminal type of Illicit Enrichment (Enriquecimiento Ilícito), when in what is of interest it imputed that: '[...] Nombre73 defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], *presented* to the accused [Name01 006] in consideration of his office *a gift* consisting of money, *which was admitted by [Name01 006] while he remained in the exercise of his position* as a public official, specifically as Deputy Chief of the Direction of the Switching Department of the I.C.E. a situation that generated illicit enrichment (enriquecimiento ilícito)...' (Cf.f.175357 of volume XLII of the file. The supplied belongs to the original), and that from facts 202 to 211, the acts on which those gifts were presented were also described, namely: 'a) Several investment certificates to bearer on dates between December 10, 2001 and January 10, 2002; b) another series of investment certificates to bearer on dates between July 2, 2002 and August 5, 2002; c) a final series of investment certificates to bearer on dates between December 17, 2002 and January 21, 2003...' (Cf.f.175357 of volume XLII of the file), while that same relationship of facts was taken as proven from fact 190 of sentence 167-2011, except because it includes the phrase: 'Said gift was paid in three installments' (Cf.f.175358 of volume XLII of the file). However, despite the identity of both facts and that it is the same Court of Appeals, which admits that the crime of Illicit Enrichment (Enriquecimiento Ilícito), can be configured from the alternative conducts of: '...i) the acceptance of the offered gift and ii) the acceptance of the presented gift (folios 174493 of volume XLI of the file front and reverse...' (Cf.f.175358 of volume XLII of the file), in a contradictory manner it dictates the acquittal of the cited defendant, by determining that: '...In the case of the facts attributed to [Name01 006] we would be, then, 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 (sic), both of the one who offers and the one who accepts the gift. It is taken into account, of course, that Illicit Enrichment (Enriquecimiento Ilícito) 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 imputed to [Name01 006], that subsidiarity cannot be found, not only because the accusation remains at the mere fact of the offering of the gift, and does not elaborate with sufficient evidence the other typical considerations of the punishable act...' (Cf. folios 174494 front and reverse)..." (Cf.f.175359 of volume XLII of the file). From the preceding citation, the appealing prosecutors maintain, that the Court of Appeals errs when it assures that the accusation presents formal defects that attribute to [Name01 006] a 'mere offering of the gift' (Cf.f.175359 of volume XLII of the file), because it forgets that lines earlier, that same ruling in the transcription of the charged facts imputed to the defendant the '**presentation of three gifts**' (Cf.f.175359 of volume XLII of the file. The supplied is from the original), that were accepted by him, so that, the verb 'offer' was never used in the drafting of the facts enumerated from 199 to 211 (Cf.f.175359 of volume XLI of the file). They demand, that the Ad quem constructs a 'false problem' to acquit the defendant [Name01 006], because it assumes that the accusation imputed '**gifts offered**' (Cf.f.175360 of volume XLI of the file. The supplied belongs to the original), when the truth is that the crime of illicit enrichment (enriquecimiento ilícito) accredited was for '**the presentation of three gifts** that were accepted by the accused [Name01 006]' (Cf.f.175359 of volume XLII of the file, the bold is from the original). They repeat that the appellate Judges, from folio 174495 front and reverse, confuse in the accredited facts, the typical requirements of the crime of illicit enrichment (enriquecimiento ilícito) by offered gifts, since they introduce circumstances related to other functional criminal types not charged to [Name01 006], which undermines the analysis of culpability carried out in the first instance ruling. In summary, they maintain that the Ad quem, despite having accredited the receipt of monies presented to [Name01 006], acquits him of all penalty and responsibility, which seriously injures the punitive claim of the accusing entity, petitioning that the annulment of the ruling be ordered, a correct interpretation of the law and that the condemnatory sentence 167-2011 dictated against the defendant be maintained. **Given the relationship between the second and third motives of the seventh section of the prosecutorial appeal, both claims are heard jointly and are declared with merit.** This Chamber considers that the vices of lack of correlation between accusation and sentence and erroneous application of the old article 346 subsection 3) of the Penal Code, dictated by the Court of Appeals, with respect to the crime of Illicit Enrichment (Enriquecimiento Ilícito) attributed to the defendant [Name01 006] do not exist. Precisely, from the intellective reasoning that the questioned ruling contains, it is clear that the Court of Appeals to determine the supposed vices cited above, established in what is of interest that: '...This Chamber has carefully read the facts attributed to the defendant [Name01 006], 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 he remained in his position as an official of the ICE in the Switching Department (...) The Illicit Enrichment (Enriquecimiento Ilícito) charged starts, as the Public Prosecutor's Office could be posing in its accusation, in the first place, for having been subject to an offer of a gift, which is not a specific and special element of the accused crime, but of some other criminal figures, as is, for example, the crime of Bribery (Cohecho). According to what the defense postulates, there would be a need that the accusation contemplate the specializing elements of Illicit Enrichment (Enriquecimiento Ilícito) each time the act carried out by the defendant is described, on the various occasions in which such criminality could have taken place. That is, each time there is an offer of a gift there should also be the imputation of the correlative acceptance. In a word, so that the criminal imputations are complete they should be described in this way each time a new fact of Illicit Enrichment (Enriquecimiento Ilícito) is attributed to the defendant. Furthermore, the crime of Illicit Enrichment (Enriquecimiento Ilícito) requires that it be described in the accusation that the presentation of the gift is given 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 criminalities such as improper bribery (cohecho impropio), bribery (cohecho propio) or the same acceptance of gifts for an act performed, for example. Hence, the charged 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 failing is again noted (...). The solution proposed by the majority vote seeks, then, to concentrate the illicit enrichment (enriquecimiento ilícito) in 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 Sentence, on 'Description of the conduct of the accused [Name 006]', it was stated: /"190) The defendant [Name01 041] and the indictee [Name01 078], as representatives of the company [Name 091], presented to the accused [Name01 006] in consideration of his office a gift consisting of money, which was admitted by [Name01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Direction of the Switching Department of the I.C.E., a situation that generated illicit enrichment (enriquecimiento ilícito) 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 specializing elements of each one of them, to involve a fact that surprises the defense, in the sense that it condemns for a gift in installments that [Name01 006] would receive for the performance of activities or omissions that are not clarified, Nombre02 as well as the conditions within which the installment payment would be explained.

The latter is not consistent with the circumstance accepted by the majority court that convicts the defendant for "acceptance of a gift presented" (aceptación de dádiva presentada), which is a different act and requires the demonstration of different characterizing elements that have not been proven, much less attributed to the defendant.<span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 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 accusation of a single offer of a gift does not allow one to know which one it refers to, as explained in the previous section, and could lead one to consider the criminality of different criminal acts where a gift is an element to be taken into consideration, such as the case of active bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for a completed act (aceptación de dádivas por acto cumplido), and the penalty of the corruptor itself.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> It is for this reason, that for this reason there would also be no basis to convict the accused [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, and there would be sufficient reason to declare the nullity of the judgment, insofar as it holds the defendant as the responsible perpetrator of a crime of Illicit Enrichment, by reclassification…” (Cf.f.174495 vto of volume XLI of the case file). From the preceding reasoning, argued by the Court of Appeals, it can be inferred that the infractions alleged by the Public Prosecutor's Office are presented in two aspects, on which the prosecuting entity is entirely correct. In the first place, fact 190 from which the Second Instance Court derives an inconclusive accusation of the crime of illicit enrichment, does not present such a characteristic, since that specific section expressly describes the subjective and objective elements of the crime of Illicit Enrichment contemplated in former Article 346 of the Penal Code, when it refers that [Nombre01 041] and [Nombre01 078], as representatives of the company [Nombre 091], "</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">presented</span><span style="font-family:Arial; font-style:italic"> to the accused [Nombre01 006] in consideration of his office a gift consisting of money, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">which was admitted by [Nombre01 006]</span><span style="font-family:Arial; font-style:italic"> while he remained in the exercise of his position…”(Cf.f.00015473 of volume XXXII of the case file, Fact 190, the emphasis is ours), as a public official and Deputy Chief of the Switching Department Directorate of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad), that is, it alludes to gifts that were presented to [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, when he held a position as a public official and to their admission by the accused.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> In this regard, note that former Article 346 of the Penal Code stipulated: “…Shall be punished with imprisonment from six months to two years, the public official who without incurring a more severely punished crime: (…) 3) Admits gifts that were </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">presented</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">or offered </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">in consideration of his office</span><span style="font-family:Arial; font-style:italic">, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">while he remains in the exercise of the position</span><span style="font-family:Arial; font-style:italic">…” (The emphasis is ours). So, since said article contains the disjunctive conjunction “u” changed to “o” to continue in the structure of the criminal type, the verb “ofrecer” which presents the vowel sound /o/, we are faced with a word that “denotes difference, separation or alternative between two or more persons, things or ideas” (http://lema.rae.es/drae/?val=0). On the subject, since the mentioned article contains a conjunction that shows alternativity between two clearly differentiated actions, it is clear that, for the accreditation of the criminal type of illicit enrichment, contained in former Article 346 of the Penal Code, the demonstration of the admission of the gift by the public official is sufficient, it not being</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> essential to demonstrate in the description of the facts, the</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> actions “presented” or “offered” at the same time, but rather the accreditation of only one of those conducts, that is, receiving or accepting the gifts that are presented to him by reason of his position. Likewise, it is unnecessary in the accreditation of that criminal offense, the description in each of the sections of that factual framework, of the characteristic of public official and the acceptance of the gift in consideration of that position, since in the first fact of the accusation referring to [Nombre01 006], both conditions had already been described. The second element to consider and which emerges from the citation of judgment 2012-2005 above alluded to, lies in that the difference admitted by that jurisdictional body between the accused facts and the proven facts, from the criterion of this Cassation Chamber, does not present the character of essential, nor would it have produced any defect to the right of technical and material defense of the accused [Nombre01 006], since the apparent facts constituting the sole accredited crime of Illicit Enrichment are detailed, in a clear manner, in the factual account described by the prosecutorial requirement, when it established: “…199) The defendant [Nombre01 006], held the position of Electrical Engineer of ICE from December 1, 1998, until June 30, 2001, from which moment he occupied the position of deputy chief of the Switching Department directorate</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> of said institution. Such positions accredit him as a public official. The work activity also implied maintaining constant communication with telecommunications suppliers, among them the company [Nombre 091]. 200) Between the accused [Nombre01 006] and the company [Nombre 091] there did not exist any type of commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of ICE official, which as stated was held by [Nombre01 006]. 201) The accused [Nombre02 041] and the indictee [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the ICE Switching Department Directorate, a situation that generated illicit enrichment for him. 202) It was Nombre02 as well as the accused [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and the indictee [Nombre01 078] and following the distribution dynamic of the money deposited in the checking account of [Nombre 058]. No. [Valor 012] at the Cuscatlán International Bank coming from [Nombre 060], who ordered [Nombre02 028] to purchase various certificates for the delivery of the following gifts: 203) Without specifying a date, but after December 10, 2001, and before January 10</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">, 2002, [Nombre01 041] and [Nombre02 078] presented to the defendant [Nombre01 006] a gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 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</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ninety-five cents ($182.95). 204) Said gift was accepted by the defendant [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">who proceeded to endorse certificates Nos. Identificacion16 Identificacion06 Identificacion17 and delivered them to the Nombre74 agency with the purpose of acquiring in his Nombre01 the vehicle brand Suzuki, Grand Vitara XL, series , chassis , engine H27A105387, model 2002.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 205) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74 through which the vehicle Grand Vitara XL, with the indicated qualities, was sold to the defendant [Nombre01 006].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> In this way, on January 15, 2002, money receipt No. 38999 was issued by the Nombre74 Suzuki Vehicles agency, in the Nombre01 of [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), for payment of the referenced vehicle. 206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, said part of the gift was admitted by the defendant [Nombre 006], who invested it in the brokerage firm of BCT Valores on January 14, 2002, along with its interest for a total of $39.65 -adding from his own funds a cash sum of eight thousand one hundred dollars ($8,100)- in an entrepreneurial fund in dollars administered by that financial entity.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) issued in favor of [Nombre01 197], spouse of the defendant [Nombre01 006].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 208) Without specifying a date, but between July 2, 2002, and</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> August 5 of that same year, [Nombre01 041] and [Nombre 078] presented to the defendant [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">a second gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 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. 209) Said gift was accepted by the defendant [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, who gave it to his wife [Nombre01 197], she proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her Nombre01 and with a term of three months and seven days. 210) Without specifying a date, but between December 17, 2002, and January 21</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">, 2003, the corruptors [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Nombre01 078]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, presented to the defendant [Nombre01 006] a third</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and their respective interest coupons for a total of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> $100.08., which was accepted by the defendant [Nombre01 006] and he disposed of it</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> in the following manner: a) With respect to</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> certificate Identificacion12 he delivered it along with the interest coupon -adding cash from his own funds for a total of one thousand two hundred dollars</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ($1,200)-</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> to BCT Valores, with the objective of making an investment in the dollar liquidity fund, administered by BCT Sociedad Fondos de Inversión S.A.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was issued in favor of the wife of the defendant [Nombre01 006]. The check was deposited in account No. [Valor 057] of the beneficiary [Nombre01 197] at Banco Popular y de Desarrollo Comunal.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> b) With respect to certificate No. Identificacion14 he delivered it along with the interest coupon for $25.02, to his wife [Nombre01 197]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, the latter proceeding to endorse it and deposit it to checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) With respect to certificates No. Identificacion13 and No. 2240020056299, he also delivered them -along with the respective interest coupons- to his wife, who delivered the certificates to Mrs. [Nombre01 199]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">with the objective of paying for the decoration of her dwelling house, and she deposited the coupons in the account in her Nombre01 at Banco Popular y de Desarrollo Comunal.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 211) In total, the defendant [Nombre02 006] illicitly enriched himself through the receipt of gifts received from the defendants [Nombre01 041], [Nombre01 028] and [Nombre01 078], for the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20) …” (Cf.f.14490-14492 of volume XXX of the case file). To the previous description of facts, the factual basis contained in the majority opinion of judgment 167-2011 must be joined, to dismiss the defect of correlation between accusation and judgment challenged, since the section "</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Description of the conduct of the defendant [Nombre 006] (Considering No. XII)"</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which contains the demonstrated facts, ordered: “…188) The defendant [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, held the position of Electrical Engineer of ICE from December 1, 1998, until June 30, 2001, from which moment he occupied the position of deputy chief of the Switching Department directorate</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> of said institution. Such positions accredit him as a public official. The work activity also implied maintaining constant communication with telecommunications suppliers, among them the company [Nombre 091]. / 189) Between the accused [Nombre01 006] and the company [Nombre 091] there did not exist any</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> type of commercial relationship of a private nature,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> but rather</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> the contact between both parties derived at all times from the condition of I.Nombre72. official,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> which as stated was held by [Nombre01 006]/190) The accused [Nombre01 041] and the indictee [Nombre02 078], as representatives of the company [Nombre01 091], presented to the accused [Nombre01 006] in consideration of his office a gift consisting of money, which was admitted by [Nombre01 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the ICE Switching Department Directorate, a situation that generated illicit enrichment for him. Said gift was paid in three installments./191) It was Nombre02 as well as the accused [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and the indictee [Nombre01 078] and following the distribution dynamic of the money deposited in the checking account of [Nombre01 058]. No. [Valor 012] at the Cuscatlán International Bank coming from [Nombre02 060], who ordered [Nombre02 028] to purchase various certificates for the delivery of the following gifts:/192)Without specifying a date, but after December 10, 2001, and before January 10</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">, 2002, [Nombre01 041] and [Nombre02 078] presented to the defendant [Nombre01 006] a first delivery of the gift consisting of investment certificates Nos. Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> 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</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ninety-five cents ($182.95)./ 193) Said gift was accepted by the defendant [Nombre01 006] who delivered certificates Nos. Identificacion16 Identificacion06 Identificacion17 to the Nombre74 agency with the purpose of acquiring in his Nombre01 the vehicle brand Suzuki, Grand Vitara XL, series JS3TX92V024103244, chassis , engine H27A105387, model 2002. / 194) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74 through which the vehicle Grand Vitara XL, with the indicated qualities, was sold to the defendant [Nombre01 006].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> In this way, on January 15, 2002,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> money receipt No. 38999 was issued by the Nombre74 Suzuki Vehicles agency, in the Nombre01 of [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), for payment of the referenced vehicle./195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, said part of the gift was admitted by the defendant [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, who invested it in the brokerage firm of BCT Valores on January 14, 2002, along with its interest for a total of $39.65 -adding from his own funds a cash sum of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> eight thousand one hundred dollars ($8,100)- in an entrepreneurial fund in dollars administered by that financial entity./196) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) issued in favor of [Nombre01 197], spouse of the defendant [Nombre02 006]. /197) Without specifying a date, but between July 2, 2002, and</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> August 5 of that same year, [Nombre01 041] and [Nombre 078] presented to the defendant [Nombre01 006] a second payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09 No. Identificacion10 and No. Identificacion11</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> for the respective amount of ten thousand dollars ($10,000), five thousand dollars ($5,000)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and five thousand dollars ($5,000) and their corresponding interest coupons for the total sum of $53.17./198) Said gift was accepted by the defendant [Nombre02 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> who gave it to his wife [Nombre02 197], she proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her Nombre01 and with a term of three months and seven days./ 199) Without specifying a date, but between December 17, 2002, and January 21</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">, 2003, the corruptors [Nombre01 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Nombre01 078], presented to the defendant [Nombre01 006] the third payment of the gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion12 No. Identificacion13 No. Identificacion14 and No. Identificacion15</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and their respective interest coupons for a total of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> $100.08., which was accepted by the defendant [Nombre01 006] and he disposed of it in the following manner:/ a) With respect to</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> certificate Identificacion12 he delivered it along with the interest coupon -adding cash from his own funds for a total of one thousand two hundred dollars</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ($1,200)-</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> to BCT Valores, with the objective of making an investment in the dollar liquidity fund, administered by BCT Sociedad Fondos de Inversión S.A.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was issued in favor of the wife of the defendant [Nombre01 006]. The check was deposited in account No. [Valor 057]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of the beneficiary [Nombre02 197] with Banco Popular y de Desarrollo Comunal.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> b) With respect to certificate No. Identificacion14 he delivered it along with the interest coupon for $25.02, to his wife [Nombre01 197], the latter proceeding to endorse it and deposit it to checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) With respect to certificates No. Identificacion13 and No. 2240020056299, he also delivered them -along with the respective interest coupons- to his wife, who delivered the certificates to Mrs. [Nombre02 199] with the objective of paying for the decoration of her dwelling house, and she deposited the coupons in the account in her Nombre01 at Banco Popular y de Desarrollo Comunal.

200) In total, the accused [Nombre01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028] and [Nombre01 078], in the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. ff. 00015473-00015476 of volume XXXII), such that, once the charges brought against [Nombre01 006] were compared with the factual basis of the judgment, —leaving aside the issue of their truthfulness, which must be assessed by the respective Court of Appeal— no essential difference is apparent that would have prevented the full exercise of the right of defense, both technical and material, of the defendant [Nombre 006], as shown in the following comparative table:

<div style="text-align:center"><table cellspacing="0" cellpadding="0" style="width:460.5pt; margin-right:auto; margin-left:auto; border:1pt solid #010101; border-collapse:collapse"><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-weight:bold; font-style:italic">Acts charged by the prosecuting authority, in reference to the indicted [Nombre 006]</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-weight:bold; font-style:italic">Proven facts contained in judgment 167-2011, in reference to the indicted [Nombre01 006]</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">199) The accused [Nombre01 006] held the position of Electrical Engineer at I.C.E. from December 1, 1998, until June 30, 2001, at which time he took up the post of deputy chief of the management of the Switching Department of that institution. Such positions accredit him as a public official. The work activity also involved maintaining constant communication with suppliers in the field of telecommunications, among them the company [Nombre 091].</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">188) The accused [Nombre01 006] held the position of Electrical Engineer at I.C.E. from December 1, 1998, until June 30, 2001, at which time he took up the post of deputy chief of the management of the Switching Department of that institution. Such positions accredit him as a public official. The work activity also involved maintaining constant communication with suppliers in the field of telecommunications, among them the company [Nombre 091].</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">200) Between the indicted [Nombre01 006] and the company [Nombre 091] there was no commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of being an official of I.Nombre72., which, as stated, [Nombre01 006] held.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">189) Between the indicted [Nombre01 006] and the company [Nombre 091] there was no commercial relationship of a private nature, but rather the contact between both parties derived at all times from the condition of being an official of I.C.E., which, as stated, [Nombre01 006] held.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">201) The indicted [Nombre01 041] and the indicted [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006], in consideration of his office, a gift consisting of money, which was accepted by [Nombre01 006] while he remained in the exercise of his public office, specifically that of Deputy Chief of the Management of the Switching Department of I.C.E., a situation that generated illicit enrichment for him.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">190) The indicted [Nombre01 041] and the indicted [Nombre01 078], as representatives of the company [Nombre 091], presented to the accused [Nombre01 006], in consideration of his office, a gift consisting of money, which was accepted by [Nombre01 006] while he remained in the exercise of his public office, specifically that of Deputy Chief of the Management of the Switching Department of I.C.E., a situation that generated illicit enrichment for him. </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Said gift was paid in three installments</span><span style="font-family:Arial; font-weight:bold; font-style:italic">.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">202) It was thus that the indicted [Nombre01 041] and the indicted [Nombre01 078], following the dynamics of distributing the money deposited in the checking account of [Nombre01 058] No. [Valor 012] at Cuscatlán International Bank originating from [Nombre02 060], ordered [Nombre01 028] to purchase various certificates for the delivery of the following gifts:</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">191) It was thus that the indicted [Nombre01 041] and the indicted [Nombre01 078], following the dynamics of distributing the money deposited in the checking account of [Nombre01 058] No. [Valor 012] at Cuscatlán International Bank originating from [Nombre02 060], ordered [Nombre01 028] to purchase various certificates for the delivery of the following gifts:</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:12pt"><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">203) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">a gift</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">consisting of investment certificates Nos. Identificacion16, Identificacion06, Identificacion17, Identificacion07, and Identificacion08</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> all issued to bearer on December 10, 2001, with an expiration 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 of one hundred eighty-two dollars and</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> ninety-five cents ($182.95).</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:12pt"><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">192) Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre02 041] and [Nombre02 078] presented to the accused [Nombre02 006]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">a first installment of the gift</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">consisting of investment certificates Nos. Identificacion16, Identificacion06, Identificacion17, Identificacion07, and Identificacion08</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> all issued to bearer on December 10, 2001, with an expiration 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 of one hundred eighty-two dollars and</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> ninety-five cents ($182.95)</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">204) Said gift was accepted by the accused [Nombre01 006], who proceeded to endorse certificates Nos. Identificacion16, Identificacion06, and Identificacion17 and delivered them at the Nombre74 agency with the purpose of acquiring, in his own name, the vehicle make Nombre18, Grand Vitara XL, series JS3TX92V024103244, chassis , engine H27A105387, model 2002.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">193) Said gift was accepted by the accused [Nombre01 006], who delivered certificates Nos. Identificacion16, Identificacion06, and Identificacion17 to the Nombre74 agency with the purpose of acquiring, in his own name, the vehicle make Nombre04, Grand Vitara XL, series JS3TX92V024103244, chassis JS3tx92v024103244, engine H27A105387, model 2002.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">205) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74, by which the Grand Vitara XL vehicle, with the indicated specifications, was sold to the accused [Nombre01 006].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Thus, on January 15, 2002,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the name of [Nombre01 006], for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">194) On January 10, 2002, sales report No. 99-12-54 was issued by Nombre74, by which the Grand Vitara XL vehicle, with the indicated specifications, was sold to the accused [Nombre01 006].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Thus, on January 15, 2002, money receipt No. 38999 was issued by the agency Nombre74 Vehículos Suzuki, in the name of [Nombre01 006], for the sum of thirty-one thousand one hundred nine dollars and seventy-seven cents ($31,109.77), as payment for the referenced vehicle.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">206) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was accepted by the accused [Nombre01 006], who invested it in the brokerage house of BCT Valores on January 14, 2002, together with its interest for a total of $39.65 —adding from his own private funds a sum of cash of eight thousand one hundred dollars ($8,100)— in a business fund in dollars managed by that financial entity.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">195) Regarding investment certificates No. Identificacion07 and No. Identificacion08, that part of the gift was accepted by the accused [Nombre 006], who invested it in the brokerage house of BCT Valores on January 14, 2002, together with its interest for a total of $39.65 —adding from his own private funds a sum of cash of eight thousand one hundred dollars ($8,100)— in a business fund in dollars managed by that financial entity.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">207) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) issued in favor of [Nombre01 197], spouse of the accused [Nombre01 006].</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">196) This investment was liquidated on August 19, 2002, with check No. 3505-6 for twenty-nine thousand ninety-nine dollars and six cents ($29,099.06) issued in favor of [Nombre01 197], spouse of the accused [Nombre01 006].</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">208) Without specifying a date, but between July 2, 2002, and</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> August 5 of that same year, [Nombre01 041] and [Nombre02 078] presented to the accused [Nombre01 006]</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">a second gift</span><span style="font-family:Arial; font-weight:bold; font-style:italic"> </span><span style="font-family:Arial; font-style:italic">consisting of</span><span style="font-family:Arial; font-style:italic">&#xa0;bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09, No. Identificacion10, and No. Identificacion11</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> in the respective amounts of ten thousand dollars ($10,000), five thousand dollars ($5,000),</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and five thousand dollars ($5,000) and their corresponding interest coupons for the total sum of $53.17.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">197) Without specifying a date, but between July 2, 2002, and</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> August 5 of that same year, [Nombre02 041] and [Nombre02 078] presented to the accused [Nombre01 006] </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">a second payment of the gift consisting of the</span><span style="font-family:Arial; font-style:italic"> bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09, No. Identificacion10, and No. Identificacion11</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> in the respective amounts of ten thousand dollars ($10,000), five thousand dollars ($5,000),</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and five thousand dollars ($5,000) and their corresponding interest coupons for the total sum of $53.17.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">209) Said gift was accepted by the accused [Nombre01 006], who gave it to his wife [Nombre01 197]; she proceeded to establish the time deposit certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">198) Said gift was accepted by the accused [Nombre01 006], who gave it to his wife [Nombre01 197]; she proceeded to establish the time deposit certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98) issued on September 30, 2002, in her name and with a term of three months and seven days.</span></p></td></tr><tr><td style="width:220.5pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">210) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corrupters [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">a third</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline"> gift consisting of the investment certificates</span><span style="font-family:Arial; font-style:italic"> to bearer from Banco Cuscatlán de Costa Rica No.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Identificacion12, No. Identificacion13, No. Identificacion14, and No. Identificacion15</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> each for the amount of ten thousand dollars ($10,000), for a total of forty thousand dollars ($40,000)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and their respective interest coupons for a total of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> $100.08., which was accepted by the accused [Nombre01 006] and he disposed of it as follows: a) Regarding</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> certificate Identificacion12, he delivered it together with the interest coupon</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> —adding cash from his own private funds for a total of one thousand two hundred dollars</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ($1,200)—</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> to BCT Valores, with the objective of making an investment in the liquidity fund in dollars, managed by BCT Sociedad Fondos de Inversión S.A.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was issued in favor of the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre02 197] in </span><span style="font-family:Arial; font-style:italic; text-decoration:line-through">con</span><span style="font-family:Arial; font-style:italic"> Banco Popular y de Desarrollo Comunal.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> b) Regarding certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02 to his wife [Nombre01 197], the latter subsequently endorsing it and depositing it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them —together with the respective interest coupons— to his wife, who gave the certificates to Mrs. [Nombre02 199] with the objective of paying for the decoration of her dwelling house, and deposited the coupons into the account in her name at Banco Popular y de Desarrollo Comunal.</span></p></td><td style="width:220.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt"><span style="font-family:Arial; font-style:italic">199) Without specifying a date, but between December 17, 2002, and January 21, 2003, the corrupters [Nombre01 041] and [Nombre01 078] presented to the accused [Nombre01 006] </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">the third payment of the</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">&#xa0;</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline"> gift consisting of the investment certificates</span><span style="font-family:Arial; font-style:italic"> to bearer from Banco Cuscatlán de Costa Rica No.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Identificacion12, No. Identificacion13, No. Identificacion14, and No. Identificacion15</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> each for the amount of ten thousand dollars ($10,000), for a total of forty thousand dollars ($40,000)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> and their respective interest coupons for a total of</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> $100.08., which was accepted by the accused [Nombre01 006] and he disposed of it as follows: a) Regarding</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> certificate Identificacion12, he delivered it together with the interest coupon</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> —adding cash from his own private funds for a total of one thousand two hundred dollars</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> ($1,200)—</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> to BCT Valores, with the objective of making an investment in the liquidity fund in dollars, managed by BCT Sociedad Fondos de Inversión S.A.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86) which was issued in favor of the wife of the accused [Nombre01 006]. The check was deposited into account No. [Valor 057] of the beneficiary [Nombre01 197] with Banco Popular y de Desarrollo Comunal.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> b) Regarding certificate No. Identificacion14, he delivered it together with the interest coupon for $25.02 to his wife [Nombre01 197], the latter subsequently endorsing it and depositing it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them —together with the respective interest coupons— to his wife, who gave the certificates to Mrs. [Nombre02 199] with the objective of paying for the decoration of her dwelling house, and deposited the coupons into the account in her name at Banco Popular y de Desarrollo Comunal.</span></p></td></tr></table></div> c) Regarding certificates No. Identificacion13 and No. 2240020056299, he also delivered them—along with the respective interest coupons—to his wife, who delivered the certificates to Mrs. [Nombre01 199] for the purpose of paying for the decoration of her dwelling house, and she deposited the coupons in her account in her name at Banco Popular y de Desarrollo Comunal.</span></p></td></tr><tr><td style=\"width:220.5pt; border-right:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt\"><span style=\"font-family:Arial; font-style:italic\">211) In total, the accused [Nombre01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028], and [Nombre01 078], in the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f.14490-14492 of volume XXX of the case file).</span></p></td><td style=\"width:220.5pt; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%; font-size:11pt\"><span style=\"font-family:Arial; font-style:italic\">200) In total, the accused [Nombre01 006] illicitly enriched himself through the receipt of the gifts received from the accused [Nombre01 041], [Nombre01 028], and [Nombre01 078], in the sum of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20)…” (Cf. f.00015473-00015476 of volume XXXII of the case file).</span></p></td></tr></table></div><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; font-style:italic\">Certainly, from the preceding chart, it is possible to deduce that one single circumstance departs from the literalness of the charged factual framework, and that is the one resulting from charged fact 201 with reference to accredited fact 190 and relating to the method of payment of the apparent crime of Illicit Enrichment attributed to the suspect [Nombre 006]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. Thus, if one observes carefully, when comparing fact 201 with respect to 190, there is no significant variation in the description of the criminal type of Illicit Enrichment charged from the very beginning to [Nombre01 006], since both factual frameworks describe the manner in which [Nombre01 041] and [Nombre01 078], as representatives of [Nombre01 091], presented a gift to him consisting of bearer investment certificates, in consideration of his position as a public official and</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">Deputy Chief of the Dirección del Departamento de Conmutación</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">of the Instituto Costarricense de Electricidad, determining as a non-substantial divergence the form in which the gift was delivered to [Nombre01 006], that is, that said gift “…</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">was paid in three installments…” </span><span style=\"font-family:Arial; font-style:italic\">(Cf. f.00015474 of volume XXXII of the case file). In this regard, it should be noted that once the documentary and testimonial evidence was evaluated in the debate, the Trial Court determined, based on the description of the charged facts, with clear favor to the legal situation of the accused [Nombre01 006]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, that it involved the alleged commission of a single crime of Illicit Enrichment and not three as the prosecutorial body had initially contemplated, since it was a specific amount to be paid and received, carried out in three installments, clearly described in the prosecutorial accusation: the first, charged as carried out in the period between December 10, 2001, and before January 10, 2002, with the delivery of bearer investment certificates,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 from Banco Cuscatlán de Costa Rica, each for ten thousand dollars, for a total of fifty thousand dollars ($50,000) (Fact 203 of the prosecutorial accusation); the second, described as occurring between July 2 and August 5, two thousand two, in which [Nombre01 041] and [Nombre02 078] presented to the accused [Nombre01 006]</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> </span><span style=\"font-family:Arial; font-style:italic\">the bearer investment certificates from Banco Cuscatlán de Costa Rica, numbers Identificacion09 Identificacion10 and Identificacion11 for ten thousand dollars ($10,000), five thousand dollars ($5,000)</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">and five thousand dollars ($5,000), respectively, for a total of twenty thousand dollars and their corresponding interest coupons in the sum of $53.17 (Fact 208 of the prosecutorial accusation), and the third, between December 17, two thousand two, and</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">January 21, two thousand three, in which both corrupters delivered the bearer investment certificates, numbers Identificacion12 Identificacion13 Identificacion14 and Identificacion15</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">from Banco Cuscatlán de Costa Rica, each for ten thousand dollars ($10,000) and their respective interest coupons for $100.08 (Fact 210 of the prosecutorial accusation), for a total of one hundred ten thousand three hundred thirty-six dollars and twenty cents ($110,336.20). In such a way that the modification made by the first-instance court to the charged factual framework was not significant nor did it entail a variation of essential elements tending to incriminate the attributed criminal conduct, but rather said modification occurs exclusively to detail the apparent installments in which the supposed gift of one hundred ten thousand three hundred thirty-six dollars and twenty cents was paid to [Nombre01 006]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, so that, contrary to what was determined by the Court of Appeals, it was also neither unexpected nor did it entail an infringement of the right to defense</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">(See in the same sense </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Sala Tercera de la Corte Suprema de Justicia</span><span style=\"font-family:Arial; font-style:italic\">, votes 2013-000578, at ten hours six minutes, on May twenty-four, two thousand thirteen, with the composition of Judges Doris Arias, Sandra Zúñiga, Rosibel López, Jorge Enrique Desanti, and Ronald Cortés; 2013-00921, at eleven hours thirty-five minutes, on July twelve, two thousand thirteen, with the composition of Judges José Manuel Arroyo, Magda Pereira, Jorge Enrique Desanti, Sandra Zúñiga, and Rafael Sanabria; 2006-00503, at nine hours, on June two, two thousand six, with the composition of Judges José Manuel Arroyo, Jesús Ramírez, Alfonso Chaves, Rodrigo Castro, and Magda Pereira; 2005-00574, at eight hours fifty-five minutes, on June ten, two thousand five, composition of Judges Alfonso Chaves, Jesús Ramírez, Magda Pereira, María Elena Gómez, and Jorge Arce), insofar as that conduct was described from the beginning in facts 203, 208, and 210 of the prosecutorial accusation, which the defendant and his defense formally knew from the holding of the preliminary hearing (audiencia preliminar), in the period from September first to October three, two thousand eight (Cf. f.10423 of volume XXIII of the case file). It can be seen that the description of proven facts benefited the defendant [Nombre01 006], since the accusation initially filed by the Public Ministry attributed to him the commission of three crimes of Illicit Enrichment, while the Trial Court, making use of the powers contemplated in Article 365 of the Código Procesal Penal, reclassified the conduct to a single crime of Illicit Enrichment, carried out in three installments. In full connection with the arguments raised, it must be maintained that the principle of correlation between accusation and sentence does not safeguard, as the Court of Appeals seems to understand, “…an absolute identity between the factual account of the accusatory document and the facts accredited in the sentence as the appellant seems to understand (…) The indicated principle is violated when ‘the Judges substantially modify the core of the prosecutorial requisition, to the point of generating surprise and defenselessness to the parties (see from this Chamber, among others, votes No. 137-F, at 9:10 a.m., on April 24, 1992, No. 95-F, at 9:35 a.m., on March 12, 1993, No. 366-F, at 9:05 a.m., on June 30, 1995, and No. 501, at 10:40 a.m. on May 25, 2001)’.” (Sala Tercera, No. 198 at 9:30 a.m. on March 18, 2005)…” </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">(Sala Tercera de la Corte Suprema de Justicia, </span><span style=\"font-family:Arial; font-style:italic\">vote 2012-00544, at nine hours forty-eight minutes, on March twenty-two, two thousand twelve, with the composition of Judges Arroyo, Nombre26, Pereira, Chinchilla, and Arias), in such a way that the said principle also does not prohibit reclassifications in the debate, just as the Court of Appeals seems to tacitly understand it</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\">, but rather those can be presented insofar as they do not have to modify essential elements of the attributed framework or represent an impairment to the right to defense (See in the same sense, </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">(Sala Tercera de la Corte Suprema de Justicia, </span><span style=\"font-family:Arial; font-style:italic\">vote 2012-001773, at fifteen hours fifty-eight minutes, on December four, two thousand twelve, with the composition of Judges Jesús Ramírez, Madga Pereira, Carlos Chinchilla, Doris Arias, and María Elena Gómez). By virtue of the foregoing, the second and third grounds of the seventh section of the Appeal in Cassation of the Public Ministry are declared founded, whereby the judgment is annulled insofar as it declared the acquittal of [Nombre01 006]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">due to a lack of correlation between accusation and sentence and due to the erroneous application of the former Article 346, subsection 3) of the Penal Code. The case is remanded so that, with a new composition, proceedings shall continue according to the applicable law…”. </span><span style=\"font-family:Arial\">As observed, the questions raised by the defense counsel of [Nombre01 006] were resolved by the Sala Tercera when it heard the appeal filed by the Public Ministry against the resolution issued by this court (with a different composition), in which, in turn, the claims made by Licenciado Flores Fallas in this procedural phase had been declared founded (appeal of sentence). The cassation body ultimately concluded that the accusation was not deficient regarding the description of the elements of the criminal type of illicit enrichment; that the change made by the trial court, namely, taking as proven that the economic retribution was paid </span><span style=\"font-family:Arial; font-style:italic\">in three installments,</span><span style=\"font-family:Arial\"> not only did not harm the right to defense of [Nombre01 006] but rather—on the contrary—favored him, since he was convicted of a single crime of illicit enrichment; and finally, that the application of the substantive norm (Art. 346 subsection 3) of the Penal Code) had been correct. We speak of decisions that this chamber must respect when carrying out the ordered remand and that in any case, we consider correct, since indeed, from the integral reading of the accusation it can be extracted that [Nombre01 006] admitted the three aforementioned gifts on the occasion of and during the performance of his position, elements that precisely make up the criminal type of illicit enrichment. Note that in fact number 201, a </span><span style=\"font-family:Arial; font-style:italic\">generic description</span><span style=\"font-family:Arial\"> of the conduct attributed to [Nombre01 006] was contemplated. Specifically, it states that a gift was presented to him in consideration of his public position as Deputy Chief of the Dirección del Departamento de Conmutación of ICE, and that he admitted it while remaining in the exercise of the same (f. 14,491 front, volume XXX). This court of appeals affirms that it is a </span><span style=\"font-family:Arial; font-style:italic\">generic description</span><span style=\"font-family:Arial\"> since at this point in the accusation no allusion is made to the amounts admitted by the defendant, it not being until later, specifically in facts numbers 203, 208, and 210, where that extreme was addressed. It is enough to read the facts previously cited in an integral manner to conclude that number 201 also forms part of them, complementing them. For this same reason, the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> court could well have concluded that three independent crimes of illicit enrichment were attributed to [Nombre01 006] and not just one, as it finally concluded, without the Public Ministry appealing that point. Consequently, the modification made by the trial court, in the sense of pointing out that this accused admitted a single gift—and that therefore committed a single crime—effectively proved more favorable to him. Moreover, it is important to reiterate that illicit enrichment is a generic or residual criminal type in relation to more complex figures. Unlike what occurs with other criminal types, where an additional subjective element beyond intent (dolo) is provided for, a specific purpose that guides the public official upon receiving the gift or the promise thereof and which directs the conduct of the person who, convergently, presents or promises the retribution (e.g., the acceptance of gifts for a fulfilled act, in relation to the penalty of the corrupter), in the criminal type of illicit enrichment the legislator contemplated the simple admission of economic retributions that were </span><span style=\"font-family:Arial; font-style:italic\">presented</span><span style=\"font-family:Arial\"> or </span><span style=\"font-family:Arial; font-style:italic\">offered</span><span style=\"font-family:Arial\"> to the public official in consideration of his office and during the exercise of the position that motivated that presentation or offer, without it being necessary to demonstrate, </span><span style=\"font-family:Arial; text-decoration:underline\">because the criminal type does not demand it</span><span style=\"font-family:Arial\">, that additional purpose that complements the intent. By way of example, to sanction illicit enrichment it is not necessary to demonstrate that the gift was received as retribution for an act performed by the public official and without any prior promise, a purpose that is indeed provided for as a specializing element in the criminal type of acceptance of gifts for a fulfilled act. Therefore, the defense counsel is not correct in maintaining that for this crime to be constituted it is indispensable to have demonstrated or categorically ruled out the subjective elements that he lists and which are characteristic of criminal types that have a genus-to-species relationship with illicit enrichment, where the latter is the generic or residual norm, elements that moreover, it must be said, were not charged in relation to [Nombre01 006]. For all the foregoing reasons, the objections are declared unfounded.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">IX.- First ground of cassation on procedural form. Erroneous application of the criteria of prescription (statute of limitations), given that a correct reading of the rules of criminal prescription allows concluding that the facts charged against [Nombre01 006] are “prescriptos” </span><span style=\"font-family:Arial\">(</span><span style=\"font-family:Arial; font-style:italic\">sic,</span><span style=\"font-family:Arial\"> f. 17,107, volume XXXVI). For the public defender, the rules of prescription (prescripción) set forth in Articles 31, subsection a), 33 subsection a), 376, 363 subsection b), and 369 subsection d), all of the Código Procesal Penal, and 346 subsection 3) of the Penal Code, have been violated. First, he points out that the classification given to the facts was reduced to the crime of illicit enrichment. Now, at the date of the charged facts (December 10, 2001), Article 346 subsection 3) stated: “</span><span style=\"font-family:Arial; font-style:italic\">Shall be punished with imprisonment from six months to two years, the public official who, without incurring a more severely punished crime: 3) Admits gifts that are presented or offered to him in consideration of his office, while he remains in the exercise of the position</span><span style=\"font-family:Arial\">”. To the co-accused [Nombre01 006] are attributed 3 crimes of illicit enrichment in material concurrence, according to what is provided for in Article 346 subsection 3) of the Penal Code, punishable with a prison sentence of 6 months to 2 years, whose prescription period, pursuant to Article 31 of the Código Procesal Penal, would be 3 years, so reduced by half it would be 18 months from one of the events interrupting the prescription period. Specifically, Article 33 of the Código Procesal Penal establishes that the prescription periods shall be reduced by half in several events, one of which is the appearance of the accused to give a statement as accused (declaración indagatoria). In the case of [Nombre01 006], said act took place at 14:05 hours on March 7, 2005. Therefore, a prescription period of 18 months must be calculated from that moment. Now, the next interrupting act, which was the scheduling of the preliminary hearing (audiencia preliminar), took place on September 10, 2007, whereby it is fitting to conclude that by then the criminal action had already prescribed (it did so on September 7, 2006). Nevertheless, the trial court considered that the declaration of complex processing made on March 3, 2006, produced a retroactive effect, affecting the declaration as accused that was made following the prescription rules of ordinary processing. The appellant argues that it is not that he is unaware that complex processing affects prescription; however, said institute cannot have retroactive effects. He adds that although the court denies that such retroactivity occurs, the truth is that its interpretation results in Nombre05 that, as the law does not provide that the declaration of complex processing affects the interruption events fulfilled ordinarily. Moreover, what was resolved violates the principles of legality and legal certainty. After citing Article 376 of the Código Procesal Penal and some reasonings from the instance judgment, the appellant considers that the argument that the accused were aware that the reduction could be rendered ineffective if the process became one of complex processing, besides being an inapposite fallacy, results in Nombre05 nullifying the recognition that the same court made regarding the fact that the prescription period was reduced by half with the statement of the accused. In support of his position, he alludes to the opinion expressed by Nombre75, who considers that the half-reduced period completed in the ordinary phase of the process, before the declaration of complexity, must be applied as is, without giving retroactive effect to said declaration (Nombre75, Procedure for Complex Processing Matters, in: Costa Rican Criminal Procedural Law, San José, Costa Rica, Costa Rican Association of Criminal Sciences, Volume II, 1st edition, 2007, pp. 923 to 924). As an injury, the appellant affirms that the decision violates the principle of legality and security, by ignoring the prescription rules contemplated in the Código Procesal Penal, which serve to limit the </span><span style=\"font-family:Arial; font-style:italic\">ius puniendi </span><span style=\"font-family:Arial\">of the State. Finally, he notes that the error lies in not considering the criminal action prescribed despite the fact that it is, for the reasons stated. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">X.- The claim is declared unfounded. </span><span style=\"font-family:Arial\">The issue of the prescription of the criminal action was settled by the Sala Tercera categorically, concluding that in the specific case it had not operated. Specifically, it indicated: “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">The claim is declared founded. </span><span style=\"font-family:Arial; font-style:italic\">In accordance with the arguments of the prosecutorial body and on which this Cassation Court strictly undertakes to resolve, the first subparagraph alleged by the Public Ministry in this second ground is inaccurate, when affirming that the Court of Appeals tacitly conceived prescription as a fundamental right of the accused, since that jurisdictional body instead assumed, from the conception set forth in vote 856-2001, at fifteen hours eighteen minutes, on January thirty-one, two thousand one, of the Sala Constitucional, the institute of prescription as “…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 cause, and for the community in general” (Cf. f.174446 of volume XLII of the case file), a criterion that this Cassation Court shares without major reservations, in strict attention to the erga omnes jurisprudence of the Sala Constitucional, which through votes 4397-99, at sixteen hours six minutes, on June eight, 1999; 11582-01, at eight hours fifty-one minutes, on November nine, two thousand one; 3498-2002, at fourteen hours forty-six minutes, on April seventeen, two thousand two; 2008-002119, at fourteen hours fifty-one minutes, on February thirteen, two thousand eight, among others, has maintained regarding the nature of the prescription of the criminal action that it is nothing more than: “…</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">the cessation of the punitive power of the State caused by the passage of a specific period set by law</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">. </span><span style=\"font-family:Arial; font-style:italic\">The State, in these cases, declines the exercise of its punitive power and the right to apply a specific penalty, or to carry out the execution of a penalty already imposed in a specific case. It arises mainly out of respect for the principle of legal certainty of persons. Facing the power-duty of the State to apply the law and pursue crime, there also arises the right to resist that power and that is why the legislator establishes certain rules to limit it and protect the citizen. The right to defense and its derivatives, that of knowing what to expect—the basis of legal certainty—are only some of those rules that seek to balance the interests at play—those of the citizen and the State—all within the context of a democratic system of law. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">II. Prescription is not, then, a punishment, nor a benefit—as the appellant (sic) seems to conceive it—but a procedural instrument that arises from the necessity to guarantee the citizen that there shall be no arbitrariness in the prosecution of crime, because before it operates the full force of the objective parameters established in the law, and not others</span><span style=\"font-family:Arial; font-style:italic\"> (…) III. The legislator, when regulating the prescription of crimes in our country, due to criminal policy, chose certain objective parameters such as the type of penalty, the upper extreme of the sanction, or maximum and minimum limits in relation to the upper extreme of the sanction, all with the purpose of securing, according to the specific characteristics of each crime, a normal development of the prosecution of the criminal action and of the process in case it comes to be exercised. The legislator estimated that some cases, by their nature, take more time for their reporting, investigation, and judgment than others, such as that of personal injuries or other minor ones that have a prescription limit of two years. The formula used by the legislator, in the judgment of this Chamber, is not arbitrary, it is only one among many that it could have used to set the time—according to each crime—that it deems necessary for reporting, investigation, and punishment. It could well have opted for fixed limits, maximum and minimum for each type of crime, or not take into account the type of penalty, but it opted for a regulation that by using several factors (type of penalty, type of crime, upper extreme, etc.) could serve as a parameter to reconcile the interests of the State in the prosecution of crime, and the rights of the citizen against its punitive power. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">The legislator is not obliged to opt for a single formula that applies to all crimes equally, because as explained supra, what this institute intends is to regulate in a reasonable manner the prudential time that the legislator deems appropriate for the exercise of the criminal action in certain types of crimes</span><span style=\"font-family:Arial; font-style:italic\">. The fact that for serious crimes it establishes a maximum prescription period shorter than the upper extreme of the penalty, while it does not do so Nombre02 so for minor crimes in which it allows a prescription period greater than the upper extreme of the penalty, does not imply a violation of the Constitution and it obeys the initial necessity to locate evidence, depurate it, and select that which relates to the thema probandi; to facilitate the preparation of the defense and the eventual holding of a trial, circumstances that are overcome with a period that the legislator estimated at two years, a reason why upon the passing of these, this parameter loses importance and others such as the amount of penalty to be imposed apply, for the purpose of setting the prescription of the criminal action…” (</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Sala Constitucional de la Corte Suprema de Justicia</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, vote 6472-96, at fifteen hours forty-two minutes, on November twenty-seven, nineteen hundred ninety-six. The emphasis is ours. In the same sense, see votes 01797-97, at fifteen hours twenty-one minutes, on April two, nineteen hundred ninety-seven; 2008-002119, at fourteen hours fifty-one minutes, on February thirteen, two thousand eight; 2008-002120, at fourteen hours fifty-two minutes, on February thirteen, two thousand eight, all from the Sala Constitucional). From the previous perspective, as the figure of the prescription of the criminal action is considered a merely procedural institute that results in the cessation of the state ius puniendi, occurring as a consequence of the passage of time, it is necessary to make clear that, within that notion, at least three fundamental elements that constitutional jurisprudence has developed must be studied: </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">First</span><span style=\"font-family:Arial; font-style:italic\">, that </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">the regulation of the prescription of the criminal action is a matter of criminal policy</span><span style=\"font-family:Arial; font-style:italic\"> adopted by the State through the competent body for it, namely the Legislative Assembly (Asamblea Legislativa), so that the latter has powers to establish the parameters for its regulation.</span> Second, that there is no constitutional right to the statute of limitations (prescripción), but rather the right to legal certainty, to legality, to effective judicial protection, and to equality, principles that are not harmed by the State as long as the time limits established for the reporting, investigation, and prosecution of crimes set by the legislator are reasonable and are defined and limited by law. Third, that the statute of limitations (prescripción) is a legal instrument created in order to decline the exercise of the State's punitive power, which acts as a procedural sanction for the inactivity of the procedural subjects in proceedings whether initiated or not." (judgment No. 4397-99 of sixteen hours and six minutes, of June eight, nineteen ninety-nine)…” (Constitutional Chamber of the Supreme Court of Justice, voto 3498-2002, at fourteen hours and forty-six minutes, of April seventeen, two thousand two. The emphasis belongs to the original). Based on these considerations, it is evident that the theoretical conceptualization used in the specific case by the Ad quem, regarding the institute of the statute of limitations for criminal action (prescripción de la acción penal), is in accordance with the law, since from the transcribed citation it is inferred that it is conceived as the cessation of state power and not as a right of the accused. However, from the aforementioned caveat, this Court of Cassation also notes that judgment 2012-2550 presents a highly significant error in declaring the statute of limitations (prescripción) for the criminal cases against the accused [Name01 001], [Name 006], [Name 028], [Name 018], [Name02 022], [Name01 041] and [Name01 033] and in interpreting and applying rule 376 of the Criminal Procedure Code regarding the declaration of complex proceedings (tramitación compleja), for which reason the challenge on this point must be granted, for the reasons set forth below. The complex proceedings (tramitación compleja) procedure has been understood by the Constitutional Chamber as an exceptional process included in our legislation under Article 376 of the Criminal Procedure Code, which “…raises an evident conflict between two tendencies or interests that have been present throughout its history. On one hand, the concern for establishing a system of guarantees against state power that protects the freedom and dignity of the individual, and on the other hand, the pursuit of the greatest possible efficiency in the application of criminal coercion. A model of criminal procedure in a democratic state of law must respond to the dual problem of efficiency and guarantee, seeking the point of balance between both interests. The procedure for complex proceedings (tramitación compleja) matters is designed as an exceptional procedure, for qualified cases, in which there truly exists a clear and evident difficulty in processing. It seeks to avoid the dysfunction that would occur from applying ordinary time limits to cases whose complexity demands a different treatment, while still establishing a maximum time limit that restricts the exercise of punitive power. Its exceptional nature lies in the fact that not only are the time limits of the ordinary procedure extended, but also the time limits for pretrial detention (prisión preventiva), which is obviously detrimental to the interests of the accused. Said proceedings must be duly authorized with a reasoned decision by the court, either ex officio or at the request of the Public Prosecutor's Office (Ministerio Público), and may be ordered when the matter is complex due to the multiplicity of acts, the high number of accused or victims, or when it involves organized crime. The purpose of the authorization is to have longer time limits than those of the ordinary procedure for pretrial detention (prisión preventiva), investigation, resolution of the matter, and the filing and resolution of appeals; in consideration of the particularly complex nature and characteristics of the case. The exceptionality of this type of process arises by virtue of the demands of the principle of prompt and complete justice, provided for in Article 41 of the Political Constitution, according to which every person must have access to prompt justice to enforce their rights, as well as the right of the accused to be tried within a reasonable time, established in Articles 25 of the American Declaration of the Rights and Duties of Man, 9.3 of the International Covenant on Civil and Political Rights, 7.5 and 8.1 of the American Convention on Human Rights…”(Constitutional Chamber of the Supreme Court of Justice, voto 2006-01029, of fourteen hours and thirty-four minutes, of February one, two thousand six. The emphasis is ours). Consequently, it is a special criminal proceeding decreed by a reasoned resolution, in which, without violating the principle of equality of the various procedural parties, due to the complexity of the case, whether by reason of the multiplicity of acts, number of accused or victims, or involving organized crime, various time limits are extended for the purpose of carrying out the investigation and procedures adequately, which otherwise, under conventional ordinary time limits, could not be accomplished due to the difficulty in processing the case, despite the social importance it might hold (See in the same sense, Constitutional Chamber of the Supreme Court of Justice, voto 2006-01029, of fourteen hours and thirty-four minutes, of February one, two thousand six). Thus, Article 376 of the Criminal Procedure Code governs the general rules or basic premises upon which this procedure is based, by establishing that: “...When the proceedings (tramitación) are complex due to the multiplicity of acts, the high number of accused or victims, or when related to the investigation of any form of organized crime, the court, ex officio or at the request of the Public Prosecutor's Office (Ministerio Público), may authorize, by reasoned resolution, the application of the special rules provided for in this Title. In the trial stage, the decision may only be adopted at the time the hearing is called. When the application of the complex procedure is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations term (término de la prescripción) by half, provided for in Article 33 of this Code, shall not apply…” (As amended by Law No. 8146, of October 30, 2001, published in La Gaceta No. 227, of November 26, 2001. The emphasis is ours), it being expressly derivable from the mentioned rule that our legislator, through this regulation, provided a special treatment, in consideration of the particularities of the case, which varies according to the stages in which it was ordered. Thus, when the application of the procedure is ordered during the preparatory or intermediate phases, the statute of limitations period (plazo de prescripción) continues to run, only not reduced, but in its full form. This is not a cause for the interruption of the statute of limitations for criminal action (prescripción de la acción penal), because the time that had elapsed is maintained, only that it now runs without any reduction. On this matter, the Constitutional Chamber, when resolving an action filed by an individual who alleged the violation of the right to be tried within a reasonable time, based on the alleged unconstitutionality of Articles 376, 377, 378 and 379 of the Criminal Procedure Code concerning the complex proceedings (tramitación compleja) procedure, established: “…On the other hand, the fact that Article 376 in fine states that when the application of the complex procedure is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations period (plazo de la prescripción) by half provided for in Article 33 of the Criminal Procedure Code shall not apply, does not violate the right to be tried within a reasonable time. As the appellant himself rightly states, the statute of limitations for criminal action (prescripción de la acción penal) and the reasonable duration of the process are not the same thing and begin to be computed at different moments; the statute of limitations (prescripción) from the commission of the act and the duration of the process from the moment the accusation is individualized against a particular subject. The statute of limitations (prescripción) is the cessation of State punitive power caused by the passage of a specific period set by law and serves reasons of legal certainty. The non-reduction of the statute of limitations period (plazo de la prescripción) by half in complex proceedings (tramitación compleja) crimes is reasonable, since in these cases the difficulty in processing can impede the repression of such criminal activities, the prosecution of which is of interest to society. The statute of limitations period (plazo de la prescripción) does not coincide with the period to be tried, and in the latter case, the particular circumstances of the case must be evaluated, such as complexity, the conduct of the parties and authorities (sic)…” (Constitutional Chamber of the Supreme Court of Justice, voto 2006-01029, of fourteen hours and thirty-four minutes, of February one, two thousand six. The emphasis is ours). From the constitutionality of cited Article 376, it must be clarified that the provision itself makes an important distinction between the various stages of the process and the effects that the declaration of complex proceedings (tramitación compleja) produces on them, by expressly preventing the reduction of statute of limitations (prescripción) periods by half for the investigation and intermediate stages, this action being due to the fact that these are the early stages where more time is needed for the investigation that these complex crimes require, and it being understood that there is a regulation of express prohibition contemplated for the trial phase. Regarding the reduction of the prescriptive period in the early stages of the process, as part of the issues concerning this Chamber, it must be understood that this declaration of complexity converges with some of the interrupting acts contained in Article 33 of the Criminal Procedure Code, such as the preliminary statement (declaración indagatoria) or the call to the preliminary hearing, as the case may be, which in turn implies that, by constituting acts typical of the initial and intermediate stages, they were considered by the legislator when giving effect to cited section 376, so that, even if they had already occurred as interrupters of the statute of limitations (prescripción), the declaration of complex proceedings (tramitación compleja), on its own and once final, has a direct impact on the reduction of the prescriptive period by half provided for in cited rule 33, with the full period running. So much so that, in the case of pretrial detention (prisión preventiva), once the complex proceedings (tramitación compleja) are decreed, the time limits are extended to eighteen months, having an immediate effect of extending the pretrial detention (prisión preventiva) time limits. On this matter, this Third Chamber, with the panel of Judges Doris Arias, Rafael Ángel Sanabria, Ronald Cortés, Rosibel López and Sandra Zúñiga, in voto 2013-01758, of ten hours and forty-five minutes, of December three, two thousand thirteen, regarding the declaration of complexity at trial, revisited the issue of the various effects contemplated in rule 376 of the Criminal Procedure Code, based on the procedural moment at which that declaration occurs, stating in what is pertinent that: "...The trial court declared the matter of complex proceedings (tramitación compleja) in the resolution that called the parties to trial. The foregoing is important because a distinction must be made regarding the application of time limits in cases declared as complex proceedings (tramitación compleja), according to the procedural moment at which such declaration occurs. On this particular aspect, it is important to note that Article 376 of the Criminal Procedure Code establishes the possibility for the Court, ex officio, or at the request of the Public Prosecutor's Office (Ministerio Público), to authorize, by reasoned resolution, the application of the procedure for complex proceedings (tramitación compleja) matters, when the case is hindered by the multiplicity of acts, the high number of accused, or any form of organized crime, the cited rule having been supplemented by a new paragraph, through a legal reform of October 30, 2001, published in La Gaceta number 27 of November 26 of the following year, where it was indicated that when said special procedure is ordered during the preparatory or intermediate phases, it directly affects the time limit for processing the case, specifically the peremptory one of the statute of limitations (prescripción), in the sense that the reduction of the statute of limitations term (término de prescripción) by half, provided for in Article 33 idem (sic), shall not apply. However, when the authorization for the application of said procedure is made in the trial stage, the cited exception is not applicable, so in these cases the governing statute of limitations term (término de prescripción) in the specific case is that established by the ordinary procedure, without affecting the interests of the accused by being applied reduced by half..." (The emphasis is ours). In addition to the foregoing, it is also evident that, in accordance with Articles 148 and 444 of the Criminal Procedure Code, the declaration of complexity in the preparatory and intermediate stages will produce the legal effects previously mentioned, as a general rule, from the moment the resolution becomes final. This is important because it is from that date that the effects of the complex proceedings (trámite complejo) begin to be computed, and especially, for determining the prescriptive period, given that the rule is that it is not reduced, as long as the prescriptive period reduced by half had not expired prior to the declaration. Once the effects of the complex proceedings (tramitación compleja) process are clear, it is necessary to examine the specific case, to determine specifically the effects produced by the declaration of complexity on the processing of the file, especially with respect to the computation of the statute of limitations (prescripción) periods. Thus, if observed carefully, the request for complex proceedings (tramitación compleja) made by the Public Prosecutor's Office (Ministerio Público) was filed before the Criminal Court of the Criminal Jurisdiction of the Treasury and Public Function (Juzgado Penal de la Jurisdicción Penal de Hacienda y de la Función Pública), on February twenty-three, two thousand six, when the file was still in the investigation stage, since by that date the accusation and the request for trial had not yet been prepared (Cf.f.7432-7495 of volume XVII of the file). Indeed, the proceeding was resolved by the Criminal Court of the Second Judicial Circuit of San José, by resolution of fifteen hours, of March three, two thousand six (Cf.f.7506-7566 of volume XVII), becoming final on June twenty-three, two thousand six, the date on which the appeals filed by the parties were decided by the Criminal Trial Court of the Treasury (Tribunal Penal de Hacienda) (Cf.f.7604-7610, 7615-7619 of volume XVII of the file). Regarding what was decided by the aforementioned Criminal Court, it is evident that it weighed the scope of the complex proceedings (tramitación compleja) procedure, since the ruling analyzed, on one hand, the enormous quantity of criminal acts investigated up to that procedural moment (Cf.f.7560 of volume XVII of the file) while on the other, the multiplicity of subjects investigated, -thirteen in total-, as well as that it was a matter of organized crime, which due to the volume of evidence, entailed “…complications in the investigative work, the recognition of this singularity in the Costa Rican criminal legal system, which, it is worth noting, is far from being prepared to confront criminal scenarios of dimensions such as those of the case in question, is the institute of Complex Proceedings (Tramitación Compleja), which seeks to mitigate that imbalance in relation to ordinary processes and prevent large-scale criminal phenomena, such as the present one, from culminating in impunity; hence in the present case it becomes necessary to order this procedural institute in order to continue and conclude it successfully…” (Cf.f.7564 of volume XVII of the file. The emphasis is ours), so that, based on that legal and factual assessment, that same judicial body outlined in the "Therefore" (Por tanto) of that resolution the scope of the declaration of complex proceedings (tramitación compleja) on the reduction of the statute of limitations period (plazo de prescripción) by half, determining that: "...For the reasons set forth above, being appropriate pursuant to the provisions of Article 376 and following of the Criminal Procedure Code, THE COMPLEX PROCEEDINGS PROCEDURE (PROCEDIMIENTO DE TRAMITACIÓN COMPLEJA) IS ORDERED in the present case. Setting a period of one year to conclude the preparatory investigation. The reduction of the statute of limitations term (término de prescripción) by half, provided for in Article 33 ibidem, shall not apply in the present matter (as established (sic) by Law 8164 of October 30, 2001, published in La Gaceta Number 227 of November twenty-six, two thousand one), as well as the other procedural consequences established in Article 378 ibidem..." (Cf.f.7565-7566 of volume XVII. The emphasis is ours), this ruling subsequently being clarified at the request of the prosecuting authority, insofar as the same Judge of the preparatory stage indicated, regarding the scope of Article 378 of the Criminal Procedure Code, that: "...The representatives of the Public Prosecutor's Office (Ministerio Público) being correct, and in order to avoid confusion, in accordance with Article 147 of the Criminal Procedure Code (sic), the resolution of this Office of fifteen hours of March three, two thousand six, by which "AT THE REQUEST OF THE PUBLIC PROSECUTOR'S OFFICE, THE COMPLEX PROCEEDINGS PROCEDURE (PROCEDIMIENTO DE TRAMITACIÓN COMPLEJA) IS ORDERED", visible at folios 5309-5369, is clarified, which does not imply a modification of what was decided, so that in the last paragraph and in the "THEREFORE" (POR TANTO) thereof, it is correctly read that in view of the Complex Proceedings Procedure (Procedimiento de Tramitación Compleja) having been ordered in the present matter, the effects provided for in Article 378 of the Criminal Procedure Code shall apply, therefore it is also clarified that when the cited resolution indicates that a period of one year is set to conclude the investigation, it is referring to the rule under discussion, the foregoing, of course, in case of proceeding in due course in accordance with the provisions (sic) of Article 171 ibidem..." (Cf.f.7589-7590 of volume XVII of the file. The highlighting is ours). In view of the two previous literal citations, it is evident that from the investigation stage, the accused and their defense counsels were aware of the scope of the issuance of the complex proceedings (tramitación compleja) in this particular matter, its effects having been extensively developed by the Judge of the preparatory stage in the resolution in question, which was final, through voto 403-06, of thirteen hours and thirty minutes, of June twenty-three, two thousand six, issued by the Criminal Trial Court (Tribunal Penal de Juicio), acting as an Appeals Court, which declared without merit the appeals filed by the defense counsels of the accused [Name01 033], [Name01 046] (deceased) and [Name01 018] (Cf.f.7703-7707 of volume XVII of the file). From this perspective, it is clear that both the defendants and their defense counsels were aware, from the issuance of the resolution of fifteen hours, of March three, two thousand six, of the effects of the complex proceedings (tramitación compleja); nevertheless, the appeals were aimed at specifically challenging the declaration itself and not precisely its effects. In summary, although in this particular case, pursuant to subsection a) of section 33 of the Criminal Procedure Code, the first act interrupting the statute of limitations (prescripción) occurred, that is, the reduction of the statute of limitations period (plazo de prescripción) by half at the moment of taking the preliminary statement (declaración indagatoria) of the majority of the accused, in the year two thousand four, because the case was being processed as an ordinary process, the fact is that once the case is declared complex, given that the criminal action had not been extinguished for that reason, the statute of limitations period (plazo de la prescripción) continues to run, without reduction, according to the terms stipulated in cited Article 376 in fine. That being the case, it is clear that the validity of the reductive effect of the prescriptive period as a result of the ordinary processing of the file was subject to the case continuing to be processed as ordinary; however, when the complex proceedings (tramitación compleja) were ordered and became final, in the early stages of the process, the condition reducing the prescriptive periods changed, in accordance with cited section 376, given that the only exception to this reasoning would have occurred in the event that the fatal prescriptive period had expired before that order, since in that scenario the extinction of criminal action due to the statute of limitations (prescripción) would have occurred, that circumstance being taken as a consolidated legal situation, to which the effects of cited Article 376 could not have been applied. In this way, the interpretation of eliminating the reductive effect of the statute of limitations period (plazo de la prescripción) due to the occurrence of the preliminary statement (declaración indagatoria), contemplated in subsection a) of section 33 of the Criminal Procedure Code, once the declaration of complex proceedings (tramitación compleja) is final, in no way violates the principles of non-retroactivity of the law, nor can it be considered an infraction of the principle of legal certainty, since the efficacy of the rule, by section 129 of the Political Constitution, is present from the effective date of the reform that added the last paragraph of Article 376 of the Criminal Procedure Code, through Law 8146, of October thirty, two thousand one, published in La Gaceta No. 227, of November twenty-six, two thousand one, and both the factual framework charged by the prosecuting authority and the preliminary statements (indagatorias) of the accused [Name01 022], [Name 001], [Name01 041], [Name01 028] and [Name01 033] were presented in late two thousand four and early two thousand five, that is, when said law was undoubtedly in effect.

Furthermore, the firm declaration of complex proceedings (declaratoria en firme de tramitación compleja), dated June twenty-third, two thousand six, was issued when no consolidated legal situation existed, nor had any of the causes of action charged against the various defendants prescribed, as shown in the following table:

As can be observed, for none of the defendants, namely, [Nombre01 022], [Nombre02 001], [Nombre01 041], [Nombre01 028], and [Nombre01 033], would the cause of action have prescribed at the time the declaration of complex proceedings was filed, and therefore one could not speak of a consolidated legal situation, since between the investigative statement (indagatoria) taken from each of them, on different dates in October two thousand four, and the final declaration of complex proceedings, the term reduced by half provided for in Article 33 of the Code of Criminal Procedure (Código Procesal Penal) would not have elapsed, that is, thirty months, for the crimes of improper bribery in the form of aggravated corruption; penalty for a corruptor for aggravated corruption in the form of improper bribery; and instigation to the crime of aggravated corruption in the form of improper bribery, and eighteen months for the crimes of illicit enrichment. On this point, it is clear that the declaration of complex proceedings, final since June twenty-third, two thousand six, in accordance with Article 33 of the Code of Criminal Procedure, had as its immediate effect the counting of the term from the investigative statement (declaración indagatoria), but without the reduction contained in the aforementioned Article 33, cited above, but rather under the rules of Article 376 of the Code of Criminal Procedure, with separate mention needing to be made of the legal situation of the accused [Nombre01 018] and [Nombre01 006], insofar as these were investigated (indagados) once Ley 8422 was in force and, therefore, by the principle of non-retroactivity of criminal procedural rules, its application was appropriate from its entry into force on October 29, two thousand four. Certainly, just as was studied in judgment 2014-01392, at nine thirty hours, on August fourteenth, two thousand fourteen, of this Third Chamber, in which contradictory precedents issued by this jurisdictional body and those issued by both the former Court of Criminal Cassation (Tribunal de Casación Penal) and the Court of Appeals (Tribunal de Apelaciones), both of the Second Judicial Circuit of San José, are unified, regarding the issue of the non-retroactive application of procedural rules in force, it presents as a normative basis, firstly, "...numeral 34 of the Political Constitution (Constitución Política), which literally states that: 'No law shall be given retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.' In that sense, only substantive laws have retroactive effects for the benefit of the accused, as established in ordinal 12 of the Penal Code (Código Penal), which notes the following: 'Law subsequent to the commission of a punishable act. If after the commission of a punishable act a new law is promulgated, said act shall be governed by the one most favorable to the offender, in the particular case being tried.' Conversely, our procedural regulations do not establish express provisions on the temporal application of adjective laws. However, in the case of procedural laws, the one that most favors the defendant is not applicable, but rather the one in force. This has been defined both in case law and doctrine, which are also sources of Law, because procedural rules obey criminal policy issues and not a right of the defendant. Likewise, because over the elapsed time, legal situations are consolidated, such as the running of the criminal action in the present case, according to the acts that interrupt and suspend it, in accordance with the procedural laws in force, meaning the principle of legal certainty is safeguarded, and of course, it will also depend on the illegality being investigated…" (Third Chamber of the Supreme Court of Justice, vote 2014-01392, at nine thirty hours, on August fourteenth, two thousand fourteen). As well as the constitutional case law issued in this regard, especially vote 0351-91, at sixteen hours, on February twelfth, nineteen ninety-one, cited in the aforementioned resolution 2014-01392, which, insofar as it is relevant, states: "...it must be added in relation to Article 34 of the Fundamental Charter, the following: In the case of a new procedural law, acts already carried out, consolidated legal situations, as well as the effects that both generate during the validity of the previous law, cannot be affected by a subsequent law…" (The emphasis is ours). Likewise, in accordance with vote 4397-99, at sixteen hours six minutes, on June eighth, nineteen ninety-nine, also from the Constitutional Chamber (Sala Constitucional): “…laws of public law that regulate formal and non-substantive aspects are of immediate application to all proceedings, including those already in progress (…) It must be understood, however, that in the case of a new procedural law, the acts already carried out, the consolidated legal situations, and the effects that both generate during the validity of the previous law, cannot be affected by a subsequent law (…) in procedural matters, the normally applicable rule (…) is the one in force at the time the respective procedural action is performed…”. And finally, a discretionary judicial consultation on constitutionality was also resolved, submitted by the Third Chamber, regarding the retroactive application or not of the provisions relating to the statute of limitations (prescripción), contained in the criminal procedural law, an occasion on which it was argued: “…laws govern towards the future, as this is the only way to conceive them as rules or norms of human conduct or behavior, and as an instrument to equalize or standardize the treatment provided by authorities. It is thus, as in principle, rules cannot govern past acts if they were not in force at the time of the event, given that the author could not have adapted their conduct in accordance with them. However, past conduct may eventually be assessed by a rule enacted later, a judgment that is subject to a regulated power, meaning that the retroactive application of a rule only proceeds by express mandate of the law, and when it does not infringe the constitutional precept established in its Article 34; that is, the retroactive application of the law proceeds only when it does not affect any person, acquired patrimonial rights, or consolidated legal situations, and on the contrary, benefits the interested party with that retroactive application (…) As the proceeding is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern the acts 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 assessed in accordance with the law in force at the time of its performance (…) In order to resolve the consultation submitted by the Third Chamber regarding the application of the principle of the most favorable criminal norm to the rules on the statute of limitations (prescripción) of the criminal action, it must first be defined what this consists of, and how national legislation regulates it. Several elements should be noted regarding the statute of limitations (prescripción) of the criminal action – already pointed out previously in constitutional case law – that help to form an idea regarding this legal institution. First, that the regulation of the statute of limitations (prescripción) of the criminal action is a matter of criminal policy adopted by the State through the competent body for it, that is, the Legislative Assembly (Asamblea Legislativa), so that it has the power to establish the parameters for its regulation.

Second, that there is no constitutional right to the statute of limitations (prescripción), but rather the right to legal certainty, legality, effective judicial protection, and equality, principles that are not harmed by the State as long as the time limits established for the reporting, investigation, and prosecution of crimes set by the legislator are reasonable and are defined and limited by law. Third, that the statute of limitations is a legal instrument created in order to decline the exercise of the State's punitive power, which acts as a procedural sanction for the inactivity of the procedural subjects in proceedings, whether initiated or not (…) the rules of the statute of limitations for the criminal action are of an eminently procedural nature for two important reasons; first, because its regulation is located in the Criminal Procedure Code (Código Procesal Penal), a codification that has an eminently instrumental character regarding the application of substantive law, as indicated previously; and second, because by itself, the statute of limitations implies a limit on the State's punitive power, which is applied as a (procedural) sanction as a consequence of procedural inactivity within a determined period, as was analyzed, having the consequence that it entails an extinction of the criminal action, which is also an institute of a procedural nature, located in the Criminal Procedure Code (…) Regarding the principle of the application of the most favorable norm, it is important to reiterate that it is an integral element of due process, and that therefore it has constitutional rank, as this Constitutional Chamber has repeatedly indicated (among others, see ruling number 0821-98, at sixteen hours and fifty-one minutes, of February tenth, nineteen ninety-eight). However, it must be clarified that this principle is exclusively applicable to substantive law, and referred only to the accused, as regulated in international human rights treaties, specifically in Article 15.1 of the International Covenant on Civil and Political Rights (…)

First: If the principle of the most favorable criminal norm is exclusively applicable to substantive law, consequently, it cannot be applied to the rules of the statute of limitations for the criminal action. Thus, the proper course is to apply the rules of the statute of limitations based on the procedural system under which it is governed, according to the provisions in Transitional Provisions I. and II. of the Criminal Procedure Code, provisions that are also procedural in nature par excellence. Second: Each procedural regime must remain intact and indivisible, as the legislator's policy in establishing a legal vision of human events seeks uniformity, coherence, and systematicity of the institute, to achieve the ends proposed by the ordinary legislator…” (Constitutional Chamber of the Supreme Court of Justice, voto 4397-99, at sixteen hours six minutes, of June eighth, nineteen ninety-nine, also from the Constitutional Chamber. The emphasis is ours). Now then, in the specific case, it must be noted that the indictees [Nombre01 018] and [Nombre01 006], having been questioned (indagados) on the date of November thirtieth, two thousand four for the former (Cf. f. 1166 of volume III of the expediente) and March seventh, two thousand five for the latter (Cf. f. 1984 of volume IV of the expediente), the three-year prescriptive period, according to article 62 of Ley 8422, was not reduced by half, but rather was counted in full until the next interrupting act, as it concerns the validity of a procedural law, which provides an additional reason for not considering the prescriptive period to have elapsed. Ultimately, given the non-application of numeral 376 of the Criminal Procedure Code for the accused [Nombre01 001], [Nombre 028], [Nombre 022], [Nombre 041] and [Nombre 033] Nombre02, like the erroneous application of article 62 for the co-defendants [Nombre 006] and [Nombre02 018], the appeal by the Public Ministry (Ministerio Público) is granted, and the acquittal judgment due to the statute of limitations on the criminal action 2012-2550, issued in the record by the Trial Court of Appeal (Tribunal de Apelación de la Sentencia Penal), is annulled, ordering a remand for a new proceeding as legally appropriate, this Chamber clearly establishing that, in this case, the criminal action is not time-barred (prescrita).” (The highlights are from the original). From the foregoing, it appears that the Third Chamber, on the occasion of the appeal filed by the Public Ministry, decided on the issue submitted for review by the defender of [Nombre01 006], concluding that the criminal action had not expired due to the statute of limitations, and this because: 1) The declaration of complex processing suppressed the reducing effects on the statute of limitations period associated with the procedural acts that interrupted its computation during the ordinary proceeding. 2) The procedural acts that interrupt the statute of limitations period and that have been carried out after the entry into force of article 62 of Ley N° 8422, law against corruption and illicit enrichment in public office, are not accompanied by the reduction of the period by half. Likewise, as is apparent from the last lines of the transcribed considerando, the cassation body ordered that the remanded proceeding must start from that premise (it is understood, that the criminal action is not time-barred). We are speaking of a decision that limits our jurisdiction, not only because it was adopted for the specific case, but because in sound appellate technique, it is the reviewing body that establishes the scope of the remand it orders. Therefore, given that the claim made by Lic. Flores Fallas was definitively resolved in cassation, it must be declared without merit. Notwithstanding the foregoing, this chamber allows itself to indicate that indeed, in the case of the accused [Nombre01 006], the criminal action is not time-barred, since aside from the interpretation that may be given to article 376, final paragraph of the C.P.P., the fact remains that this individual was questioned (indagado) when article 62 of Ley N° 8422, Law Against Corruption and Illicit Enrichment in Public Office, published in La Gaceta No. 212 of October 29, 2004, was in force, which provides: “Statute of Limitations for Criminal Liability. The criminal action for 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 apply: a) Once the statute of limitations is interrupted, the periods fixed in article 31 of the Criminal Procedure Code shall run again for a new period, without any reduction. b) In addition to the grounds provided in article 33 of the Criminal Procedure Code, the criminal action may be interrupted by a declaration of illegality of an administrative function, whether by act or omission, or by the annulment of administrative acts and contracts related to the corresponding crime, whether the ruling is made in judicial or administrative proceedings.” (The emphasis is not in the original). As explained in previous sections, it can be inferred from subsection a) of the norm that in the case of crimes against the duties of public office and those provided for in Ley N° 8422, upon the occurrence of any of the acts indicated by the Criminal Procedure Code as interrupters of the computation of the statute of limitations period, the count starts to run anew in its entirety, which constitutes an exception to article 33 of the recently mentioned Code. This is an article applicable to procedural acts carried out from its entry into force, whether these take place within a new proceeding or one already underway, the foregoing insofar as the rules of the statute of limitations, according to the Constitutional Chamber, are of an instrumental nature (in a similar sense, cf. resolutions numbers 5305-1996; 4397-99 and 351-1991, all from the Constitutional Chamber). That said, note that the lower court (a quo) convicted [Nombre01 006] for a crime of illicit enrichment, provided for and sanctioned in article 346 subsection 3) of the Penal Code with a prison sentence of 6 months to 2 years. Therefore, its statute of limitations period is 3 years (Art. 31 subsection a) C.P.P.). Now, this accused appeared to give his investigative statement (declaración indagatoria) on March 7, 2005 (f. 1984 to 1986 front, volume VI), a date on which the computation of the period was interrupted, which by reason of article 62 in force at that time, began to run anew and for the same period of three years, without any reduction, until March 7, 2008, a date by which another interrupting act had already occurred, namely, the resolution scheduling the preliminary hearing - September 10, 2007, f. 8,452 front, volume XX-. From that day, the period ran again without any reduction, until September 10, 2010, a date by which it had been interrupted again, by the setting for trial. After this, the judgment was issued by the trial court (No. 167-2011 of April 27, 2011) and subsequently, the issuance of the judgment by this tribunal, with a different composition (No. 2012-2550 of December 21, 2012) and the cassation judgment (No. 2014-1847, at 11:20 hours of November 21, 2014), procedural acts which, under article 33 of the Criminal Procedure Code, also interrupt the computation of the statute of limitations period. In sum, we agree with the Third Chamber insofar as it concluded that in the case of [Nombre01 006] the criminal action has not expired due to the statute of limitations, since the period for this to occur has not elapsed without a new cause for interruption having previously operated. For all the foregoing reasons, the ground is rejected.

**XI.-** Given the existing relationship, this chamber will jointly resolve the fourth ground of form and point 2) of the fifth ground of form. **Fourth ground of form. Violation of the rules of *in dubio pro reo*, because the tribunal, in addition to substantially modifying the facts charged, reached a conclusion of certainty that is neutralized by reasoning from the same dissenting vote.** Lic. Flores Fallas reiterates that the principle of correlation between accusation and judgment was violated, contravening the provisions of Articles 9, 363 subsection b) and 369 subsection d), both of the Criminal Procedure Code, an aspect sanctioned with nullity. For the appellant, the problem with the judgment lies in the reconstruction of the facts charged carried out by the trial court to attribute to the defendant a single act of illicit enrichment involving the payment of a bribe (dádiva) *in three installments (en tres tractos)*. He claims that it is impossible to know which of the three bribes presented to [Nombre01 006] was in consideration of his office and to overcome this obstacle, the majority vote reclassified the facts attributed to [Nombre01 006] into a single crime with three deliveries of the bribe, without assessing that the conduct attributed to him, of acceptance of a presented bribe, makes the foregoing unfeasible, because each acceptance of a bribe constitutes independent conduct and must describe all elements of the criminal type, which the accusation does not do. Likewise, even if all the requirements of criminality could be deemed met for one of the acceptances of the bribe presented to [Nombre01 006], it is unknown which of the three must be related to fact number 201. It is added that if it were possible to link this fact with one of the three descriptions of acceptance of a presented bribe, it would result that the other two described acceptances would be atypical, and the defendant would have to be acquitted for their commission. Along these lines, the appellant points out that the surviving conduct, even if it maintains the requirements of criminality, cannot be proven. The evidence shows that [Nombre01 006] accepted a bribe that was presented to him and therefore, it was not the materialization or delivery of a bribe that had been offered and accepted previously. Having said this, it is also not possible to rule out that the bribe was offered for reasons other than those provided in numeral 346 subsection 3) of the Penal Code, as for example, so that [Nombre01 006] would perform an act proper to his functions, or omit to perform it, delay it, or perform one contrary to his functions, or that it was a bribe for having performed or omitted an act in his capacity as a public official. It could also have been that the bribe was delivered because [Nombre01 006], by abuse of his position, forced or induced [Nombre01 041] or [Nombre01 078] to give or promise it. The foregoing hypotheses lead us to different possibilities and criminal charges, in which the active subject can end up receiving economic advantages. Lic. Flores Fallas insists that by varying the factual framework and reclassifying the facts, the tribunal is not applying Art. 9 of the C.P.P., but rather trying to overcome the problem of the accusation that describes three independent facts that do not contain the essential elements of the criminal type of illicit enrichment. Therefore, the principle of *in dubio pro reo* was also violated. At this point, it is important to add that in the exposition of the fourth ground, the appeal remains inconclusive, as a page appears to be missing (see last lines of page 17,126 front, volume XXXVI). For that reason, and given that the appeal filed by Licda. Nazira Merayo Arias is a reiteration of the one elaborated by Lic. Flores Fallas, this office has taken the liberty of completing the description using what was stated by Licda. Merayo Arias on pages 172,320 and 172,321 front. On these pages, it is insisted that the accusation did not describe the elements of the criminal type and that therefore the trial court modified the facts charged, stating that it was a single bribe paid in three installments and not three independent crimes. Likewise, the defender reiterates that in the face of doubt, what the lower court (a quo) should have done was not to correct the accusation, but to acquit her client. **Fifth ground of form. Violation of the reasoning of the judgment, for violating the principle of derivation**. The judgment incurs the defect of lack of reasoning, violating Nombre02 the provisions of Articles 142, 363 subsection b) and 369 subsection d) of the C.P.P. According to the defense, the defect appears in several points, with number 2) being the one to be addressed here. **2) Bribe paid in three installments given that the accusation never described that behavior, but rather three independent crimes without elements of the charged criminal type**. In this section, the appellant refers to considerando XII, entitled “Description of the conduct of the accused [Nombre 006]”, where the tribunal stated: “*190) The defendant [Nombre01 041] and the suspect [Nombre01 078], as representatives of the company [Nombre 091], presented the accused [Nombre02 006] in consideration of his office a bribe consisting of money, which was admitted by [Nombre02 006] while he remained in the exercise of his position as a public official, specifically as Deputy Chief of the Directorate of the Switching Department of I.C.E., a situation that generated illicit enrichment for him. Said bribe was paid in three installments*”. He challenges what was already previously raised in his appeal, specifically, that the trial court considered as proven a circumstance not described in the accusation, namely, that the bribe was paid in installments. As explained by the tribunal, by virtue of the most favorable application and interpretation of the law to the defendant (Article 9 of the Criminal Procedure Code), the three independent crimes of illicit enrichment had to be reclassified into a single one. However, this explanation by the tribunal, besides being insufficient, harmed [Nombre01 006]. The tribunal did not assess the issue of concurrence of offenses, nor the fact that the accusation had opted for the formula of “*acceptance of a presented bribe*”, which means that for the presentation of each bribe and the corresponding acceptance thereof, independent criminal conduct occurred. As facts 203, 208, and 210 of the accusation are described, a material concurrence (concurso real) would be configured, and therefore, the description of each fact must meet all the prerequisites of the criminal type, a requirement that the tribunal tried to avoid with the modification it made, giving a twist to the accusation that affected the right to defense, because this procedural party in its conclusions presented the issue as a problem of atypicality, with the tribunal surprisingly changing the facts in the face of what it considered a “void”. He reiterates that the Public Ministry did not describe that the presentation of bribes was “in consideration of the office”, such that each charged fact, independently, did not contemplate the essential objective elements, and furthermore, the bribe, as described in facts 203, 208, and 210, is an element common to several criminal types, such as bribery proper (cohecho propio), improper bribery (cohecho impropio), acceptance of bribes for a completed act, the penalty of the corruptor, and illicit enrichment. Upon verifying the absence of the description of essential elements of the criminal type of Article 346, subsection 3) of the Penal Code, and being independent facts, it should have been concluded that the three charged behaviors were atypical.

**XII.- The defense is not correct**. Regarding the allegations related to the lack of correlation between accusation and judgment and the inclusion in the facts charged by the prosecuting body of the typical elements of the crime of illicit enrichment, the appellant must abide by what was indicated in considerando VIII.- of this resolution. As was explained then, those issues were heard and resolved by the Third Chamber, rejecting the arguments made in that direction by Lic. Wilson Flores. Regarding the reason or purpose for which the bribes were presented to [Nombre01 006], namely, whether they were, for example, in exchange for him performing an act proper to his functions or one contrary to his duties, or for not doing or delaying an act proper to his functions, or if it was as retribution for a completed act without a prior promise, it suffices to reiterate that those purposes are not part of the applied criminal type, whereby it is irrelevant that this purpose could not be categorically demonstrated or ruled out. In fact, if this possibility had been envisioned, it is likely that [Nombre01 006] would not have been charged with a residual crime but with any other that specifically and precisely regulated the matter. By way of example, in bribery proper, the public official who admits the bribe or its promise knows that it is intended for him to perform an act contrary to his duties, or to not perform or delay an act proper to his functions. Regardless of whether those acts are carried out, what matters is that the official's action is tainted by this purpose, as is also the conduct of the person who delivers or promises the patrimonial advantage. The same occurs in other criminal types, for example, acceptance of bribes for a completed act, or aggravated corruption. These are special criminal types compared to illicit enrichment, where the configuration of any of the former can presuppose or encompass the realization of the latter, but not the other way around. In the case of Article 346 subsection 3) of the Penal Code, it suffices that the public official admits the bribe that *was presented or offered to him in consideration of his office while he remains in the exercise of the position*, which has been considered proven here, since from the recitation of proven facts, it is evident that [Nombre01 006], in his capacity as Deputy Chief of the Directorate of the Switching Department of ICE and while he remained in the position, accepted money coming from [Nombre01 060] that was transferred to him through [Nombre01 058]. It is reiterated, the search for other additional purposes is not a subjective element additional to criminal intent (dolo) that is contemplated in this criminal type, whereby it is irrelevant that there is no evidence in this regard. For the foregoing reasons, the ground is declared without merit.

**XIII.- Fifth ground of form. Violation of the reasoning of the judgment, for violating the principle of derivation**. The judgment incurs the defect of lack of reasoning, violating Nombre02 the provisions of Articles 142, 363 subsection b) and 369 subsection d) C.P.P. According to the defender, the defect appears in several points, which, as a matter of expositional order, this chamber proceeds to resolve separately. **1) Condemnation to personal costs (payment of professional fees corresponding to the Public Defense) imposed on [Nombre01 006], without evidentiary basis regarding his solvency**. Regarding the issue of costs, the judgment indicated: *“Given the proven economic solvency of the convicted individuals [Nombre01 022], [Nombre01 001], [Nombre01 046] and [Nombre02 006], who opted for the legal advice of lawyers 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 Criminal Procedure Code, each one must pay the fees of the professionals who have assisted them during this process. An amount fixed at the sum of TEN MILLION COLONES covering their professional performance from their appearance and until the issuance of this ruling, not Nombre02 the eventual appeals and other procedures that may be required after its issuance. Said sum must be paid by each of the accused to the Judicial Branch within the following fifteen days computed from the finality of the ruling, with the consequent seizure and auction of their assets in case of non-compliance with this obligation”.* Regarding this, the defender argues that the trial court did not explain how it reached the conclusion of the effective economic solvency of [Nombre01 006], which, while it does not affect the defendant's personal freedom, does affect his assets.

**XIV.- The claim is granted**: On pages 16,342 to 16,343 front of volume XXXIV, the trial court addressed the issue of costs, stating: “***C) Personal costs**: unanimously, the costs of the process regarding the exercise of the criminal action are borne by the defendants. Given the proven economic solvency of the convicted individuals [Nombre01 022], [Nombre01 001], [Nombre01 046] and [Nombre02 006], who opted for the legal advice of lawyers 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 Criminal Procedure Code, each one must pay the fees of the professionals who have assisted them during this process. An amount fixed at the sum of TEN MILLION COLONES covering their professional performance from their appearance and until the issuance of this ruling, not Nombre02 the eventual appeals and other procedures that may be required after its issuance. Said sum must be paid by each of the accused to the Judicial Branch within the following fifteen days computed from the finality of the ruling, with the consequent seizure and auction of their assets in case of non-compliance with this obligation. The co-defendants [Nombre01 001], [Nombre01 022], [Nombre01 046] and [Nombre01 006] have participated in this process with legal representation provided by the State through the Public Defense. In relation to the costs of the process, numeral 265 of the Criminal Procedure Code provides the following: “In every process, the State shall cover the expenses in relation to the accused and the other parties that enjoy the benefit of litigating without being charged for them. When the accused has economic solvency, he must pay the Judicial Branch for the services of the public defender or any other that he may have received. For this, the procedure established in the Organic Law of the Judicial Branch shall be followed, regarding the public defender. The payment of the official translator or interpreter is exempted from that duty.” In this process it has been proven that the three cited accused are persons with economic solvency:* they have held important, highly remunerated public positions, they have managed companies and bank accounts with large sums of money, they have had valuable movable and immovable property registered in their Nombre01, made multiple trips abroad, as is the case of [Nombre01 022] *and [Nombre01 046].* In the case of [Nombre01 001], it has been demonstrated that he donated valuable assets such as a vehicle and a cell phone to his sister [Nombre01 075], that he transferred vehicles registered in his name for millions, and that he acquired valuable assets such as a boat, livestock, agricultural equipment, a hotel, etc. For these reasons and those stated, the co-defendants [Nombre01 001], [Nombre01 022], and [Nombre01 046] must be ordered to reimburse the State for the public defender services provided to them, with the Court estimating that for this item they must cover the sum of TEN MILLION COLONES EACH, which covers the professional performance of each of their defenders from their appearance up to the issuance of the judgment. In accordance with numeral 152 of the Organic Law of the Judicial Branch, the setting of fees for the public defense's participation is established by the judge in accordance with the defendant's obligation to pay the Judicial Branch for the public defender's services. In determining the set sum, the Court has considered that Public Defender Wilson Flores, defender of [Nombre01 006], was appointed on August 8, 2006, as per the record on folio 6449 of volume XV of the investigation file; attorney Yamura Valenciano, public defender for [Nombre01 001] and [Nombre01 022], was appointed on February 27, 2008, as per folio 9163 of volume XXI of the investigation file; and that attorney Hugo Santamaría, defender for [Nombre01 046], was designated as such starting July 2, 2008, as per folio 9255 of volume XXI of the investigation file. In addition to the above, it has also been considered that the trial phase alone, which required the uninterrupted intervention of the public defense, lasted more than a year, and that in 2010, the base salary of a public defender was 821,000.00 and 854,200.00 colones in the first and second semesters, respectively, to which a series of items such as annual increments, prohibition, and others must be added, which at a minimum double the base salary. Therefore, the sum set at ten million corresponds to the salary for one semester of a public defender, but is considered reasonable to be covered by the aforementioned defendants in favor of the Judicial Branch. Said amounts must be paid within fifteen days following the finality of the judgment, with the consequent seizure of assets and public auction in the event of non-compliance with said obligation (Article 153 of the Organic Law of the Judicial Branch).” (The highlighting is not from the original). From the transcribed text, and particularly from the highlighted lines, it is extracted that the lower court (a quo) sentenced four defendants to pay costs (professional services rendered by the public defense), namely, [Nombre01 022], [Nombre01 046], [Nombre01 001], and [Nombre01 006]. However, to conclude that these were individuals with financial solvency, it analyzed only the situation of the first three, leaving the provisions regarding [Nombre01 006] completely unsubstantiated. Thus, it stated that the three defendants have economic resources insofar as they held important, highly remunerated public positions, managed companies and bank accounts with large sums of money, and registered valuable assets in their name. Regarding [Nombre01 022] and [Nombre01 046], it alluded to their multiple trips abroad, and regarding [Nombre01 001], it mentioned the transfers of assets he made to his sister. So clear is it that the situation of [Nombre01 006] was not considered in this analysis, that a few lines further on, the lower court (a quo) excluded his name, citing only that of the other three defendants. It indicated: "… the co-defendants [Nombre01 001], [Nombre01 022], and [Nombre01 046] must be ordered to reimburse the State for the public defender services provided to them…" Therefore, the defender is correct in pointing out that the trial court did not carefully evaluate the case of his client, a person for whom it cannot be asserted, or at least not without proper substantiation, that he possesses the characteristics attributed to the other accused individuals. By way of example, see that according to the same judgment, the defendant is spoken of as someone who was an electrical engineer at ICE and later, at the time of the events, deputy chief of the Switching Department management of that same institution, with a salary of approximately 400,000 colones per month (cf. statement of [Nombre02 153], hierarchical superior of [Nombre 006], f. 14,809 front, volume XXX and f. 16,259 front, volume XXXIV, where the trial court referred to this point). Likewise, in the appealed judgment, this accused is not attributed with managing companies and bank accounts with "large sums of money," repeated trips abroad, or the registration of valuable assets, logically, beyond those related to the criminal activity being judged. In summary, given that the cost sentencing imposed on [Nombre01 006] lacks substantiation, the ground is granted, the judgment is annulled with regard to this aspect, and the case is remanded to the trial court so that, with a new composition, it may proceed to resolve as appropriate.

XV.- Fifth ground regarding form. Point identified with number 3). In this section, the defense claims that bearer certificates were presented to the defendant, however, they were mostly used by [Nombre01 197] and [Nombre01 199]. After alluding to demonstrated facts numbers 197, 198, and 199, the appellant states that the accused [Nombre01 006] was attributed with having received the bearer investment certificates from Banco Cuscatlán de Costa Rica No. Identificacion09, No. Identificacion10, and No. Identificacion11. However, according to the documentary evidence, specifically the seizure of banking information, the person who received said certificates is Mrs. [Nombre01 197], who proceeded to constitute the time savings certificate No. 16102460220109801. The trial court itself, in the section called "B.2. Delivery of the second bribe. Analysis of facts 208 and 209," only describes the participation of [Nombre01 197]. Given this, the defender questions how, if Mrs. [Nombre01 197] abstained from testifying, one can reach the conclusion that the certificates were presented to Mr. [Nombre01 006]. From this point, the challenger transcribes several excerpts from the ruling related to the analysis of those facts 208 and 209, in which the lower court (a quo) concluded that it was [Nombre01 197] who endorsed the certificates. If this is so, that is, if a person other than [Nombre01 006] is indicated, only by violating the derivation principle can this defendant be attributed with having received those bearer certificates. Regarding the third bribe received by [Nombre 006], attorney Flores Fallas states that the same situation occurs. First, the appellant proceeds to transcribe what was stated by the trial court in its majority vote, in the section called "B.3 DELIVERY OF THIRD BRIBE. ANALYSIS OF FACTS 210" (cf. folios 16,269 to 16,273 of the judgment, volume XXXVI), and then goes on to affirm that in that analysis, "… it is striking that the bearer certificates presented and used by [Nombre01 199], [Nombre01 197], are attributed to [Nombre01 006] in the proven facts, but again, how does the court reach that conclusion, if the trial court itself attributes those certificates to third parties who are not [Nombre01 006]. To conclude, the court has no certainty about the signature related to [Nombre01 006], pointing out: 'certificate (Identificacion1 and its interest coupon presents on the reverse the apparent endorsement of [[Nombre0 006]', this because no comparison of the handwriting sample was ever carried out with the signature of [[Nombre0 006]…" (f. 17,144 front, the transcription is literal). Attorney Flores Fallas understands that if the bearer certificates are presented and used by [[Nombre0 199] and [[Nombre0 197], then -in his opinion- it is unknown how the trial court managed to attribute them to [[Nombre0 006], given that, furthermore, as no expert study was conducted, there is no certainty that the signature appearing in the endorsement of the certificate Identificacion1 is that of this defendant.

XVI.- The claim is rejected. That the destination of some bearer certificates was arranged by [Nombre01 199] and [Nombre01 197], or that an expert study was not conducted on the signature appearing in the endorsement of certificate Identificacion12, are not circumstances that cast doubt on the trial court's conclusion that [Nombre01 006] accepted an advantage of economic content coming from [Nombre01 060], which was presented to him in consideration of his office. In this regard, note that [Nombre01 197] is not a person unrelated to the defendant. Quite the contrary, she is his wife. [Nombre01 199], for her part, was hired to decorate a home for the couple and, according to her statement, received two bearer investment certificates from [Nombre01 197] as payment for her work. Finally, even though an expert did not examine the signature contained in the endorsement of certificate Identificacion12, the trial court's conclusion that it is the defendant's does not violate the rules of sound judgment (sana crítica), as it is extracted from the multiple pieces of evidence (of a circumstantial nature) weighed comprehensively and harmoniously in the judgment. In order to delve deeper into the arguments set forth above, the indications considered by the lower court (a quo) from folios 16,263 front onwards will be examined. Regarding the first five investment certificates accepted by [Nombre01 006], for $10,000 each, for a total of fifty thousand dollars ($50,000), plus their interest coupons for one hundred eighty-two dollars and ninety-five cents ($182.95), of which three were used to purchase at the Nombre74 agency the vehicle make Suzuki, Grand Vitara XL, series , chassis , engine H27A105387, model 2002, and the other two to be invested in the BCT Valores brokerage house, an investment that was later liquidated with a check in favor of [Nombre01 197] (proven facts 192 to 196), the appealed ruling weighed the expert reports prepared from the documentation provided by Vetrasa, which accounts for the use, by the defendant [Nombre01 006], of the investment certificates numbers Identificacion16, Identificacion06, Identificacion17 originating from [Nombre01 058], and whose funds come from [Nombre01 060], to purchase from said agency the vehicle make Nombre04, Grand Vitara XLK, license plate number [Valor 010]. In addition to these reports, abundant documentation accounting for this transaction was analyzed, e.g., documents where Nombre74 recorded having received the aforementioned certificates from [Nombre01 006], as well as their respective interest coupons, the vehicle purchase invoice, and the public deed where the transfer of the vehicle to the defendant was made, a vehicle that was ultimately registered in his name (f. 16,263 and 16,264 front). In relation to the other two investment certificates (Nos. Identificacion07 and Identificacion08, also for $10,000 each), several expert reports were examined from which it is extracted that they were invested by [Nombre01 006] in account No. 2489 with BCT Valores Puesto de Bolsa S.A., along with their interest coupons ($36.59) and a cash contribution of $8,100.00, an investment that was liquidated on August 19, 2002, with check No. 3506-6 for $29,099.06, made out to [Nombre01 197], his wife, with the apparent endorsement of the beneficiary noted on the reverse (f. 16,264 front and 16,265 front). Likewise, abundant documentary evidence was examined in depth that allows linking [Nombre01 006] to the facts. This includes, for example, the original investment certificates and their interest coupons, where one can read, on the reverse, the name of [Nombre01 006] and his identification number (evidence CED01), as well as other documents delivered by the brokerage house (evidence No. 349), where there is an official letter from BCT indicating that this entity received from the hands of [Nombre02 006], on January 11, 2002, the deposit certificates No. Identificacion07 and No. Identificacion08 for $10,000.00 each, and their respective coupons for $36.59; and additionally, $8,100.00 was received for a total of $28,173.18 that were invested in the business fund in dollars managed by BCT. Also, that the investment was liquidated on August 19, 2002, for a total of $29,099.06 and check No. 3505 was made out to the name of [Nombre01 197]. The respective report also included a copy of the receipt for $28,173.18 in the name of [Nombre01 006] (f. 16,265 front of the judgment). The same applies to the second transfer of funds to this defendant. As it was considered proven, [Nombre01 006] admitted three bearer investment certificates for an 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, which he later gave to his wife, who proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98), issued on September 30, 2002, in her name and with a term of three months and seven days (proven facts 197 and 198). Regarding this transfer, the trial court conscientiously studied all the evidence that allows reconstructing the transit of money from [Nombre01 060] to the hands of the defendant, as well as the destination he gave to such funds (f. 16,265 to 16,269 front). Even though the three investment certificates involved were endorsed in favor of Banco Popular with [Nombre01 197]'s identification number, and it was she who proceeded to constitute the time savings certificate No. 16102460220109801 for a total of twenty thousand four hundred forty-two dollars and ninety-eight cents ($20,442.98), this does not prevent establishing with certainty that the certificates in question were accepted by [Nombre01 006]. The foregoing is because, as the appealed judgment correctly indicates, [Nombre01 197] is the wife of this defendant; because [Nombre01 006] received funds from [Nombre01 060] on several occasions, and had previously placed money in the name of [Nombre01 197]; and, above all, because it was he, and not his wife, who worked at ICE and had contact with the company [Nombre01 091]. Regarding the third delivery, we have the same situation. From folio 16,269 onwards, the lower court (a quo) gave the reasons why it considers it a demonstrated fact that the defendant received the last investment certificates indicated there (namely, Nos. Identificacion12, Identificacion13, Identificacion14, and Identificacion15, 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 $100.08 (demonstrated fact number 199). Concerning this transfer of funds, the public defender focuses his disagreement on certificate number Identificacion12, indicating that it was not proven through an expert examination that the signature appearing in the endorsement is that of his client. In this way, he chose to set aside a whole series of pieces of evidence that were thoroughly evaluated by the lower court (a quo) in a comprehensive manner, which, even without the evidence he finds lacking, allow affirming the above. In addition to the original investment certificate and its interest coupons, which on the reverse show an endorsement where the name of [Nombre01 006] and his identification number can be clearly read (evidence CED02.5), the trial court also considered expert report No. 068-DEF and evidence No. 611, from which it is extracted that [Nombre01 006] was the one who delivered said certificate to the Puesto de Bolsa of BCT Valores S. A., with interest coupons for $24.89 and cash for $1,200.00 for an investment that was liquidated on May 29, 2003, with check No. 371-9 for $11,353.86 made out to the name of [Nombre01 197], which in turn was deposited into the beneficiary's account No. [Valor 057] at Banco Popular. This was also confirmed with the banking evidence provided by BCT Valores Puesto de Bolsa S.A. (No. 349), where it is recorded that $1,200.00 in cash was received from [Nombre01 006], along with investment certificate No. Identificacion12 and interest coupons for $24.89, sums that were invested in the dollar liquidity fund, also recording that said investment was canceled on May 29, 2003, with check No. 371 made out in favor of [Nombre01 197] for $11,353.86. In addition to this, there is a copy of the check, on whose reverse the name [Nombre01 197] and the identification number of [Nombre 197], an account number ( [Valor 036] ), and the cashier's stamp of Banco Popular with the date May 29, 2003, are clearly readable. Said account turned out to be a checking account belonging to [Nombre01 197] that was opened at Banco Popular. These are forceful and categorical indications, converging on a univocal conclusion: [Nombre01 006] received the bearer investment certificates originated in [Nombre01 058], and supplied by [Nombre01 060], a conclusion that is not modified one iota just because there is no graphoscopic study regarding the signatures on the endorsements of one of those certificates. It is reiterated, this one was issued under the same conditions as the others, all have the same origin, and it was [Nombre01 006], not his wife, who worked at ICE and had contact, through his office, with the heads of [Nombre01 091]. In addition to this, the leading role of Mrs. [Nombre01 197] and the absence of the aforementioned expert examination regarding the endorsement also introduce no doubt as to what happened, since the investment certificate number Identificacion12, like all the others received on this occasion, were delivered directly to [Nombre01 197] or entered her assets in other ways. As already stated, [Nombre01 006] delivered the certificate Identificacion12 along with the interest coupon [adding cash from his own pocket for a total of one thousand two hundred dollars ($1,200)] to BCT Valores, with the aim of making an investment in the dollar liquidity fund, managed by BCT Sociedad Fondos de Inversión S.A. This investment was finally liquidated on May 29, 2003, with check No. 371-9 for eleven thousand three hundred fifty-three dollars and eighty-six cents ($11,353.86), which was made out in favor of the defendant [Nombre01 006]'s wife and was deposited into account No. [Valor 057] of the beneficiary [Nombre01 197] at Banco Popular y de Desarrollo Comunal. He delivered certificate No. Identificacion14, along with the interest coupon for $25.02, to his wife [Nombre01 197], who proceeded to endorse it and deposit it into checking account [Valor 035] at Banco Popular y de Desarrollo Comunal. Finally, [Nombre01 006] also delivered certificates No. Identificacion13 and No. 2240020056299—along with the respective interest coupons—to his wife, who gave them to Mrs. [Nombre01 199] for the purpose of paying for the decoration of the couple's home, and she deposited the coupons into the account in her name at Banco Popular y de Desarrollo Comunal (proven fact number 199). In summary, although we are talking about transactions in which [Nombre 006] does not formally appear, it is evident that these involve advantages of economic content accepted by him, not by his wife. It is reiterated that the person who had a relationship with ICE and with [Nombre01 091] was [Nombre01 006], not [Nombre01 197], and moreover, at least with respect to these facts, it is not novel that the illicit funds ended up in the bank accounts of the defendant's wife, or at her disposal. Finally, regarding the investment certificates that [Nombre01 199] endorsed and deposited into her account, in addition to abundant documentation, the testimony of this person was available, who categorically indicated that she received them from [Nombre01 197] as payment for decorating services for a home that the couple (understood as [Nombre01 006] and [Nombre01 197]) built in Turrialba. In summary, it is evident that the judgment is amply substantiated. Not only because it covers all the evidence, but because it derives from it, in adherence to the rules of correct human reasoning, that [Nombre01 006] accepted the bribe delivered to him by [Nombre01 041] and by [Nombre02 028] himself, a retribution that was proven and which the Third Chamber described as a single one in three installments. This court, which distances itself from the discussion on whether it was one bribe in three installments, or rather, three bribes presented and admitted, as that topic was settled and defined in cassation, and thus there is no competence to address it), harbors no doubt about the defendant's receipt of said funds. Not only was it demonstrated that the investment certificates were generated with money from [Nombre01 060] that entered the account of [Nombre01 058], but also that they came into the hands of [Nombre01 006] and he proceeded to dispose of them. In some cases, directly, e.g., when purchasing a vehicle, or when investing in BCT Valores Puesto de Bolsa S.A.; in others, through his wife, who was the one who disposed of the assets, whether by depositing them into her accounts, or by paying for other services contracted by the couple from third parties (thus, to [Nombre01 199]). But in any case, the defense's thesis is dismissed, namely, that third parties are the ones who dispose of the investment certificates and that, therefore, there is no link whatsoever between them and the defendant. Based on the foregoing, the claim must be dismissed.

XVII.- Fifth ground regarding form. 4) The Court concluded that [Nombre01 006] signed a certificate of uniqueness, without the document that allows such an assertion to be derived being incorporated. According to the appealed ruling, the defendant [Nombre01 006] signed a certificate of uniqueness. For the court, even though the board of directors had the final say, the truth is that the uniqueness certification was highly relevant, as it was based on specialized technical criteria, and also because there was trust in the work that [Nombre01 006] performed, just as [Nombre01 153], his direct boss, affirmed. For the complainant, such assertions are questionable, as there is no document whatsoever that allows their demonstration. He argues that the point is basic, since [Nombre01 153] was the one who signed the certificates, making his testimony potentially even suspicious. To that extent, his statement could not be used to conclude that [Nombre01 006] signed that document.

XVIII.- The claim cannot prosper. Contrary to what the defender proposes, the trial court thoroughly evaluated abundant evidence to affirm the above, and the alleged defect is not present. As can be extracted from folio 16,273 onwards, [Nombre01 006] was head of the ICE's Switching Department. As such, among many other functions, he was responsible for determining the needs that had to be satisfied in matters of switching. He had a team of technicians under his command, which determined the equipment needs, and based on this, a document was drawn up that, according to [Nombre01 156], became a requirement, with [Nombre01 006] being responsible for signing the certification of the supplier's necessity. Subsequently, he would bring the award recommendation before the ICE's Board of Directors for it to definitively resolve whether or not to call for the bidding process. This is why, according to the lower court (a quo), the uniqueness certification that this defendant signed was relevant, as it was based on specialized technical criteria, and furthermore, as [Nombre01 153] pointed out, there was trust in his work. The ruling adds that [Nombre01 006] was also in charge of setting up equipment, executing contracts, and evaluating performance, making him a key official within the award procedure, both internally at ICE and for companies seeking to participate. There were several direct contracts that were assigned to [Nombre01 091] and in which this defendant had participation, of special interest No. 112765, for the expansion of the [Nombre01 091] exchanges and which was awarded to that company in session No. 5404 of May 14, 2002, with [Nombre01 006] being the administrator of that contract, for an amount of $109,457,401.22. For the majority vote, it is based on the uniqueness certification that the corruptors presented a bribe to [Nombre01 006], and the public defender claims that said certification was never incorporated into the process and that, therefore, there is no document whatsoever that allows demonstrating what was indicated, with the added point that [Nombre01 153], by signing the cited certifications, should have been considered a suspicious witness, upon whose account the lower court (a quo) could not base itself to conclude that [Nombre01 006] signed the cited certification. For this Chamber, as was already anticipated at the beginning of this section, the appellant's appreciations are erroneous. In the first place, the judgment cited documentary evidence from which the role played by [Nombre01 006] in the direct contract No. 112765 is extracted. We speak of evidence No. 740, consisting of report GESE 1530, 6053-34633-2005, of July 11, 2005, from the Apoyo, Gestión de Seguridad Area, regarding the cited agreement. Based on the documentation related to this contract, this report was prepared, which in the pertinent part indicates: "Upon observing that the documents of 'Supplier Uniqueness Certification and Technical Justification of the Project for the Acquisition of Equipment and Services for the expansion of the [Nombre 091] 1000 E10 exchanges for the 2002-2003 period', were signed by Eng.

[Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">as [...], Eng. [Nombre02 153], who served as Director of the UENDEP at the time of the signing of the mentioned documents, was consulted as to whether Eng. [Nombre01 006] had his authorization to sign in that capacity. In this regard, Eng. [Nombre01 033]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">stated that he thought that since Eng. [Nombre01 006] was the contract administrator, he could sign the authenticity formula. He further affirmed that due to a trip out of the country on official duties, he left Eng. [Nombre01 006] in charge, of the [...]”</span><span style="font-family:Arial"> (File 67. 3,632 and 3,633 front, volume IX, which we have examined). This evidence was analyzed in the judgment, concluding that contrary to what the defense of [Nombre01 006] believed, it was legitimate, at least in the section dealing with the cited contract, and is therefore useful for establishing </span><span style="font-family:Arial; font-style:italic">“…which documents were collected, the development this contracting process had within the different departments of the ICE, and the coordinating action carried out by the Switching Process, with the provision of different data related to each of those actions and the documents that were signed by the accused [Nombre01 006], who served as [...].”</span><span style="font-family:Arial"> (p. 15,264 front, volume XXXI). Similarly, at page 16,258 front of volume XXXIV, reference was made to the contract related to contracting Nº 112765, visible in Annex 10 of documentary evidence Nº 598 (Report 297-DEF-540-04/05) and which relates to the expansion of the [Nombre 091] 100 E 10 B plants. As verified by this chamber through the examination of the cited documentation, in the nineteenth clause is recorded the appointment made by the ICE of engineer [Nombre02 006] as general contract administrator, with the obligation to </span><span style="font-family:Arial; font-style:italic">“…supervise this contract, coordinate everything related to its proper execution, and ensure the perfect fulfillment of each and every one of the obligations indicated in its clauses, as well as manage and facilitate the coordination of all required technical and administrative aspects…” </span><span style="font-family:Arial">(p. 24 of the contract, visible in Annex 10 of Report Nº 297-DEF-540-04/05, file Nº 2, evidence Nº 598). Therefore, it is not true, as claimed by the defense, that the intervention of [Nombre01 006] derived exclusively from the statement of [Nombre01 153], a person who, in any case, gave a statement that adds very little to the foregoing. This witness indicated that [Nombre01 006], then the coordinator of the switching area, was in charge of determining the needs present in that area; that both used to meet with suppliers; that the accused and his group coordinated matters related to tenders and bid evaluations; that it was he (meaning [Nombre01 153]) who, as the head, appointed [Nombre01 006] as project coordinator; that if he left the country he would leave some official in charge, for example, the accused; and that the latter was in charge of the technicians (pp. 14,807 to 14,811 front, volume XXX). Now, while it is true that from report GESE 1530, 6053-34633-2005 (evidence N° 740, visible in volume IX and particularly, pages 3,631 and 3,632 front), it is extracted that some documents related to the aforementioned contracting process were jointly signed by [Nombre01 153] and [Nombre01 006], this does not change the fact that it was the defendant who signed both the certification of supplier uniqueness, as well as the technical justification for the project and the award recommendation (in fact, the first two documents were signed only by [Nombre01 006] and the last one jointly with [Nombre01 153]). It is important to add that to prove that [Nombre01 006] signed the mentioned certification, it is not necessary to have the original document, as the appellant seems to understand it, because in our legal system the principle of freedom of proof applies, according to which any circumstance or fact of interest for the resolution of the case can be proved by any permitted means of proof. In this matter, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> not only had reliable documentation that yields that conclusion (namely, the cited report, which was prepared, as indicated on page 3,630 front of volume IX, based on the expediente located in the ICE Procurement Department), but also the statement of [Nombre01 153] which generally confirms what is stated there. Similarly, other evidentiary elements were available that allow understanding that the gift received by [Nombre01 006] was in response to his role in the institution, referring to the undeniable fact that the monies came from [Nombre02 060], a supplier company of the ICE that was also the beneficiary in the contracting process that has been cited, and to the fact that [Nombre01 006] had no employment or contractual ties with [Nombre01 091], hence there exists no legitimate reason whatsoever for him to have received those monies. Although it is true that it was not charged or proven that said economic advantage was accepted for specific purposes (which is typical of certain criminal offenses, such as bribery, acceptance of gifts for a completed act, aggravated corruption, etc.), it was proven that he accepted the funds that were given to him in consideration of his office and during the performance thereof, which is sufficient for illicit enrichment (enriquecimiento ilícito) to be established. Finally, it is important to add that even if the possibility is admitted that [Nombre01 153] might have had some role in these events (the hypothetical nature of the statement is underlined), because unlike [Nombre01 006], [Nombre01 153] was not accused of having received money from [Nombre01 060], this does not exclude the commission of the crime by the accused here. For all the foregoing, the objection is declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XIX.- Fifth ground regarding form. 5) Confiscation (comiso) of the Nombre04 Grand Vitara XL vehicle, license plate [Value 040].</span><span style="font-family:Arial"> The court did not provide grounds for why it ordered the confiscation (comiso) of this automobile, which constitutes a defect in the ruling. Regarding the grievance caused by this defect, the complainant states that: “…</span><span style="font-family:Arial; font-style:italic">by failing to provide the legal reasons, it cannot be accepted that the assets are affected without any basis; a basis would allow reaching a different conclusion, since the purchase of the vehicle cannot be related to the crime of which [Nombre01 006] is accused</span><span style="font-family:Arial">…”. (P. 17,145 front). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XX.- The ground must be rejected. </span><span style="font-family:Arial">Although in effect, the court ordered the seizure of the Nombre04 Grand Vitara XL vehicle, license plate [Value 010], indicating only that it was proven to be the product of the crime, </span><span style="font-family:Arial; font-style:italic">“as it was acquired with the gifts that the accused received”</span><span style="font-family:Arial"> (page 16,285 front, volume XXXIV),</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> this does not mean that the cited decision lacks reasoning, since in other sections of the ruling, specifically from pages 16,261 to 16,264 front of volume XXXIV, it was extensively explained why it was concluded that the motor vehicle is a profit derived from the crime committed. As is clear from those pages, the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> weighed a significant amount of expert and documentary evidence from which it is extracted with absolute certainty that the vehicle was purchased by the accused [Nombre01 006] with three bearer investment certificates whose funds come from [Nombre01 060] and were delivered to him through [Nombre01 058]. In fact, it was [Nombre01 006] who delivered the three investment certificates, as well as their interest coupons (which together totaled $30,109.77), to the company Nombre74 to acquire the vehicle in his name: </span><span style="font-family:Arial; font-style:italic">“According to Expert Report 438-DEF, documentary evidence Nº 610, section 4.3, page 6 and following, from the analysis of the checking account Nº [Value 012]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre01 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">at Cuscatán International Bank, on December sixth, two thousand and one, said account showed a balance of $1,055.37 and was funded on December seventh, two thousand and one, with a transfer for $800,000.00, coming from the company [Nombre 060], which provided the content for check Nº 301 in the amount of $755,123.00 drawn on December tenth, two thousand and one, and used in the purchase of several investment certificates, issued by Banco Cuscatlán</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">de Costa Rica S. A., among them the numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to the bearer for an amount of $10,000.00, with a maturity date of January eleventh, two thousand and two, and an interest coupon for $36.59.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">The transfer made by [Nombre01 060] to [Nombre 058] on December seventh, two thousand and one, for $800,000.00 and the balance that was in [Nombre01 058]’s</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">account on that date is a topic that has already been analyzed when reference was made to all the transfers made by [Nombre01 060] to [Nombre01 058], to which we refer. Suffice it for the present analysis to cite the account statement on page 57 of documentary evidence Nº 106, which corresponds to the checking account Nº [Value 012]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of [Nombre 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, at Cuscatlán International Bank and which reflects the credit for the $800,000.00 resulting from the funds transfer referred to in the preceding fact, as well as the debit for $755,000.00 for the issuance of check Nº 301. Said evidence was seized at the central offices of Banco Cuscatlán upon prior request and order for the lifting of bank secrecy (documentary evidence numbers 90, 91, 105, and 106).</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">According to documentary evidence Nº 132, with the funds coming from check Nº 301, a total of $150,000.00, a multiple investment was opened from number 224-002-003717-0 to number 224-002-003731-6, and among which, therefore, are the investment certificates numbers Identificacion16 Identificacion06 Identificacion17 Identificacion07 and Identificacion08 all issued to the bearer for an amount of $10,000.00, with a maturity date of January eleventh, two thousand and two, and an interest coupon for $36.59. (cf. Scheme of the certificates acquired on page 1, document for the opening of the investment on page 2, where it is indicated that the invested funds come from check Nº 301 and also the characteristics of the issued certificates and their numerical sequence, photocopy of check 301 on page 3 and the 15 original certificates among which are those cited above, with their respective interest coupons for $36.59 each). Documentary evidence Nº 132 was confiscated at the Central offices of Banco Cuscatlán, upon prior request and order for the lifting of bank secrecy (cf. documentary evidence numbers 90, 91, 113, and 132).</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic">The accusation indicates that between December tenth, two thousand and one, and January tenth, two thousand and two, the investment certificates numbers CED03 CED06 CED04 Identificacion07 and Identificacion08 were presented to the accused [Nombre01 006] by [Nombre 041] and [Nombre02 078], being accepted by the accused [Nombre01 006] who endorsed and delivered to the agency Nombre74 for the purchase of a vehicle, the first three.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> If one observes the referenced original certificates, which are on pages 4, 6, and 8 of documentary evidence Nº 132, it is determined that they do not present any endorsement from the co-accused [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">but only a legend that says: “Only for deposit into account Nº [Value 037]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">of Vetrasa” and a cashier’s stamp dated January fifteenth, two thousand and two, from Banco Interfin, the same applies to the interest coupons related to those certificates (pages 5, 7, and 9 of the same evidence). The only certificates that present an endorsement from [Nombre01 006] and his respective identity card number are numbers CED04 and CED05, visible on pages 10 and 12 of documentary evidence Nº 132, an endorsement that likewise appears on the respective interest coupons and a cashier’s stamp on all documents dated January eleventh, two thousand and two. It is inferred from Expert Report 438-DEF (page 7), that from the documentation provided by Nombre74, it can be determined that the cited certificates, related to said vehicle sales agency, were received by [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and were used for the acquisition of the Suzuki brand vehicle, license plate [Value ]. The foregoing is effectively verified from the analysis of documentary evidence Nº 368, located on pages 6769 to 6775 of Volume XVI of the investigation file and pages 1920 to 1939 of Volume VI of the investigation file. In said evidence is the certificate signed by Nombre76, accountant for Nombre74 S. A., dated March fourth, two thousand and five, who certifies that in the offices of said company is the file for the vehicle with license plate [],</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">Nombre04 that was acquired by Mr. [Nombre01 006], identity card number [Value 038], a file in which are located the original invoice, copies of the certificates with which he paid for the vehicle, and a copy of the receipt for the certificates. A photocopy of a receipt for money issued by Vetrasa, for $30,109.77, in the name of [Nombre01 006] and dated January fifteenth, two thousand and one, was also provided; a photocopy of a document dated January fourth, two thousand and two, where Nombre74 certifies that it has received from [Nombre01 006] for their custody until the maturity date, certificates numbers CED06, CED05, 224-002-003718-9 for $10,000.00 each and three interest coupons for $36.59 each, all of which added up gives a total of $30,109.77; a photocopy of an invoice from Nombre74 dated January tenth, two thousand and two, related to the sale of the Grand Vitara XL vehicle, year 2002, color blue, engine H27A105387, chassis Nº , showing [Nombre02 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">as the buyer and for a price of $31,000.00, the noted characteristics being those described in the accusation in relation to the vehicle acquired by the accused [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. Finally, there is also a photocopy of public deed Nº 233 executed by Notary Mario Antonio Morelli Astúa in which the transfer of the cited vehicle is carried out by Nombre74 to [Nombre01 006]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which was finally registered in his Name as stated in the photocopy of the certification from the National Registry that is part of the evidence analyzed.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> From the foregoing evidence, it can be concluded with full certainty that indeed, between December tenth, two thousand and one, and January tenth, two thousand and two, [Nombre01 006] received the investment certificates numbers Identificacion16 Identificacion06 Identificacion17 and delivered them to the agency Nombre74 with the purpose of acquiring in his Name the Suzuki Grand Vitara XL vehicle, series , chassis , engine H27A105387, model 2002, as described in the accusatory fact Nº 204 ...”. </span><span style="font-family:Arial">As extracted from the foregoing text, the defect being reproached does not exist, for in the judgment a detailed analysis of the evidentiary elements that allowed the</span><span style="font-family:Arial; font-style:italic"> a quo</span><span style="font-family:Arial"> to link the motor vehicle whose confiscation (comiso) is ordered to the crime of illicit enrichment (enriquecimiento ilícito) is set forth. For the foregoing, the claim is rejected.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXI.- </span><span style="font-family:Arial">For procedural economy, this chamber will resolve jointly the sixth ground regarding form filed by attorney Wilson Flores Fallas, and points one to six of the sole ground raised in the appeal filed (jointly) by [Nombre01 001], [Nombre01 028], [Nombre01 041], and [Nombre01 018], in a personal capacity. </span><span style="font-family:Arial; font-weight:bold">Sixth ground regarding form of the cassation appeal filed by attorney Wilson Flores Fallas. Incorporation of evidence obtained in violation of fundamental rights. </span><span style="font-family:Arial">Attorney Flores Fallas reiterates that the judgment violates the principle of correlation between accusation and judgment, pursuant to Articles 24 of the Political Constitution, 175, 176, 363 paragraph b), and 369 paragraph d) of the C.P.P., and 29 of the Law on the Registry, Seizure and Examination of Private Documents and Interception of Communications. Regarding documentary evidence N° 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 N° 316-DN-TALM-04, dated September 6, 2004, which consists of 420 pages, attorney Flores Fallas points out that to dispense with the legal formalities established as a guarantee of a fundamental right, the consent of Mr. [Nombre01 158], legal representative of [Nombre01 215], is not sufficient. In this regard, he argues: “… </span><span style="font-family:Arial; font-style:italic">In our legal system, the right to privacy is a fundamental right, enshrined in articles 23 and 24 of the Political Constitution, and recognized in International Human Rights Law (Article 11, paragraph 2, of the American Convention on Human Rights, Article 17 of the International Covenant on Civil and Political Rights). Given that Article 24 of the Constitution establishes: ‘The right to privacy, freedom, and secrecy of communications is guaranteed. The 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 amendment 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 for clarifying matters submitted to their knowledge. Likewise, a 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 whose investigation the use of this exceptional power may be authorized and for how long. It shall also indicate the responsibilities and sanctions that officials who illegally apply this exception shall incur. Judicial resolutions protected under this rule must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority. A law shall establish the cases in which the competent officials of the Ministry of Finance and the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to oversee the correct use of public funds. A special law, approved by two-thirds of the total Deputies, shall determine which other organs of the Public Administration may review the documents that such law indicates in relation to the fulfillment of their regulatory and oversight competencies to achieve public purposes. Likewise, it shall indicate in which cases this review is appropriate. Correspondence that has been stolen and information obtained as a result of the illegal interception of any communication shall produce no legal effects.’ The foregoing allows stating that Article 24 of the Constitution ‘grants constitutional recognition to the right to privacy represented by the inviolability of private documents and written, oral, or any other type of communications of the inhabitants of the Republic; provides for the possibility of intrusions into the right to privacy by the Courts of Justice, when it is absolutely indispensable for clarifying matters submitted to their knowledge. The intrusions must be ordered by reasoned resolutions, whose application and control are the exclusive and non-delegable responsibility of the judicial authority; the authorized type of intrusion is the registration, seizure, and examination of private documents and the interception of any type of communication; it delegates to the ordinary legislator that, by means of a law approved and amended by two-thirds of the Assembly deputies, define in which cases the Courts of Justice may order the authorized intrusions into the right to privacy, and that it define the crimes in relation to which the interception of communications is appropriate and for how long. It determines that stolen correspondence and information obtained from illegal interceptions of communications produce no legal effects.’ Minority vote of co-judge Camacho Morales. Therefore, consent is not sufficient to dispense with compliance with the legal formalities established as a guarantee of the fundamental right, both at the constitutional and legal level, and whose compliance is unavoidable in all cases, because these are formalities that constitute a guarantee of fundamental rights, are matters of public order, and are not waivable by individuals, on which doctrine and constitutional jurisprudence agree. Therefore, said consent does not meet the minimum requirements to operate as a justification and eliminate the criminal nature of the Public Prosecutor’s Office’s intervention. If said evidence were admitted, it would be allowing the State to take advantage of the actions of its officials, which delegitimize the Costa Rican criminal system. Given that from this means of proof, an element of evidence is obtained; information is obtained that links [Nombre02 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">to Cuscatlán International Bank and links international transfers from [Nombre02 058]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, in favor of the accused in this case and from [Nombre01 060] in favor of [Nombre01 058], so the evidence derived from it, including evidence against [Nombre01 006], would also be illicit, and it is likewise requested that it be declared </span><span style="font-family:Arial">…” (pages 17,146 to 17,148 front, volume XXXVI, the transcription is literal). Regarding the harm caused, he affirms that the evidence he classifies as illicit allowed obtaining information linking [Nombre01 058] to Cuscatlán International Bank </span><span style="font-family:Arial; font-style:italic">“… and international transfers from [Nombre01 058], in favor of the accused in this case and from [Nombre01 060] in favor of [Nombre02 058].”</span><span style="font-family:Arial"> (P. 17,148 front), which means the evidence derived from it against [Nombre01 006] would be illegal, hence he requests acquittal in his favor. </span><span style="font-family:Arial; font-weight:bold">Cassation appeal jointly filed by [Nombre02 001], [Nombre01 028], [Nombre01 041], and [Nombre01 018], in a personal capacity.</span><span style="font-family:Arial"> In a document visible on pages 17,264 to 17,278 front of volume XXXVI, authenticated by attorney José Miguel Villalobos Umaña, the accused [Nombre01 001], [Nombre01 028], [Nombre02 041], and [Nombre02 018] appeal judgment Nº 167-2011 cited repeatedly, based on articles 369, 458 and following and concordant of the Code of Criminal Procedure. </span><span style="font-family:Arial; font-weight:bold">As the sole ground for cassation, they claim the violation of Article 369, paragraph j), </span><span style="font-family:Arial; font-weight:bold; font-style:italic">“as the judgment was issued in violation of due process, with the convictions being substantially based on evidence obtained illicitly and introduced illegally into the debate, and therefore paragraph c) is also violated by illegally incorporating an evidentiary element into the process.”</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial"> After claiming the violation of due process and the right to defense enshrined in articles 39 and 41 of the Political Constitution and article 8 of the American Convention on Human Rights, as well as citing resolution Nº 1739-92 of the Constitutional Chamber, of 11:45 a.m. on July 1st, 1992, the appellants point out that: </span><span style="font-family:Arial; font-style:italic">“… the Chamber points out what illegitimate evidence is and its formal treatment and valuation, for which it has established that such illegitimate evidence should be denied ALL PROBATIVE VALUE IN ITSELF, even stating that there seems to be no discussion about this and it is necessary to SUPPRESS IT FROM THE PROCESS, AS IF IT HAD NEVER EXISTED. But all those that, without being illegitimate per se, were obtained by means of it, must also be excluded. The principle of hypothetical suppression also applies, in the sense of excluding it completely and resolving the matter as if it had not existed… There are no exceptions, no limitations, no constitutional loopholes, nor justifications, nor excuses for its non-compliance: not only is evidence obtained illegitimately worthless in itself, but neither is it valid in its reflective effect and it nullifies other evidence that derives from it, that is, one cannot excuse that if it is not useful by itself, it could be so if supported by a different one, since this would allow indirectly violating what the Law prohibits directly violating. The incorporation of a means of proof in an illegitimate manner into the process is also a defect of the judgment that motivates or justifies the cassation appeal, under the terms of paragraph b) of article 369 of the CPP.

Since the entry into force of then-subsection 3) of Article 400 of the then-Code of Criminal Procedure, the Third Chamber had indicated that this was a serious defect that justified the nullity of the judgment, ratifying unanimous doctrinal positions that so determined it and developing the concept of hypothetical suppression that the Constitutional Chamber subsequently pointed out. (See in this regard the vote of the Third Chamber 047-92 of 11:00 a.m. on January 23, 1992). What is interesting about this binding constitutional position is that it remains in force despite the passage of time and is constantly reinforced despite the change in the composition of the Constitutional Chamber. One of the most important votes is 2529-94, which developed the doctrine of the independent source, to which we will return later, which establishes that spurious or illegitimate evidence can be assessed if and only if IT ALSO ORIGINATES FROM ANOTHER AUTONOMOUS ELEMENT GATHERED DURING THE INVESTIGATION AND PRIOR TO THE CONSTITUTIONAL VIOLATION </span><span style=\"font-family:Arial\">…” (F. 17,265 front). For the appellants, it is important to refer to the general right to legality, given that in criminal procedural matters, </span><span style=\"font-family:Arial; font-style:italic\">“violations of mere legality become, by virtue of the preceding principle, violations of due process, of constitutional rank, in order to have full guarantee of material and formal efficacy in its pronouncement…”</span><span style=\"font-family:Arial\"> (F. 17,266 front). After citing articles 180 to 184 of the Code of Criminal Procedure, which they relate to Article 11 of the Political Constitution, they affirm that not only judges and prosecutors must respect the laws regarding the obtaining, incorporation, and assessment of evidence, but also that evidentiary means have no value whatsoever if they have not been obtained by a lawful means: </span><span style=\"font-family:Arial; font-style:italic\">“The legislator, both ordinary and constitutional, is clear that the validity of evidence must be twofold: both in the form in which it is obtained and in the mechanism by which it is incorporated into the process. And this must be emphasized in the face of absurd and treacherous theses prone to paying homage to dictatorship and investigative totalitarianism, which propose that a valid incorporation legitimizes illicitly obtained evidence… the Majority Judges lean towards this fascistoid position, contrary to our democratic traditions and sound legal hermeneutics and only possible in the (in)justice of the qadi or qadiyat. If evidence was obtained illegally, it is worthless to incorporate it validly, since it has damaged the Law, judicial ethics, the accused, and the Constitution one swears to uphold...”</span><span style=\"font-family:Arial\"> (f. 17,266 front). This being said, they argue that the conviction relied on illegitimately obtained evidence, which cannot be cured or corrected, substituted, or endorsed by other autonomous, prior, or independent evidence, and neither does this situation fall under the exceptions contemplated by case law, some of which are questionable from a constitutional perspective. Next, they specify each of those evidentiary elements whose obtaining and incorporation into the process they challenge. </span><span style=\"font-family:Arial; font-weight:bold\">First. Evidence 588, which contains the Panamanian banking information of the accounts of the Corporation [Name01 215]</span><span style=\"font-family:Arial\">. “… </span><span style=\"font-family:Arial; font-style:italic\">At this point, we will initially dedicate ourselves to demonstrating that the evidence numbered as 588 is obtained in a crookedly illegal manner, that the Prosecutors and the Judges knew this and that, despite this and despite acknowledging its illegality and resolving a similar case differently, in the present case they proceeded to validate said illegality. The Judges themselves clearly summarize the argument of the defense of [Name01 018] at Folio 890, regarding what at Folio 892 they term a request for a declaration of PRIMIGENIAL ILLICITNESS THAT WOULD CAUSE THE EXCLUSION OF ALL EVIDENCE DEPENDENT UPON IT. Evidence 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes of September 6, 2004, from that country and by the Attorney General's Office to the Prosecutor's Office on the 10th of the same month, as is expressly acknowledged at Folio 8335 of the record. A certified copy of a different judicial file is brought, which in itself we will not question in this appeal, because that issue is discussed in another. The point here is to determine whether that Judicial Assistance, as evidentiary material, was validly obtained or not, for purposes of its assessment in this cause. This discussion is raised by the Majority Judges from Folio 889 to 952 of the judgment, and we must recognize that they dedicated themselves with commendable effort to attempting to demonstrate the error of the technical defense of [Name01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">that questioned that obtaining and incorporation, but as previously stated, effort does not generate correct results and consequences. At Folio 889, the criterion of the defense of [Name01 018] is summarized: that evidence is null having obtained the banking information in Panama without an order from a national Judge in Costa Rica to lift bank secrecy. On this topic, the zigzagging of the Judges is anthological: At the end of Folio 893, they dare to indicate that the determination of whether said documentation was obtained without a Judge's order is beyond their jurisdiction and that they cannot and should not examine that evidentiary material nor the circumstances of its collection and the assessment of its lawfulness or unlawfulness. And we say this is anthological since almost from the beginning of this trial they ruled on the matter, acknowledged that this evidence was obtained through a lifting of bank secrecy without a Judge's order, and they even annulled evidentiary material brought to the debate with an identical procedure, by means of the unanimous resolution on that aspect and with the drafting of 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 why evidence coming from Panama consisting of bank evidence gathered without a judicial order cannot be permitted to be valid, and therefore the decision of the Judge of the preliminary hearing to exclude it is upheld. The Judges already know that the banking evidence from Panama was obtained without an order from a national Judge, but they refused at that moment to resolve an express request from the defense of [Name01 018] to exclude evidence 588 and left this matter pending for the judgment, and this is not a petition that is late or contrary to the principles indicated at Folio 894. But such a thesis of the Judges loses importance when they themselves accept that THEY ASSUME THAT THIS EVIDENCE 588 WAS GATHERED WITHOUT A JUDICIAL ORDER TO LIFT THE PRIVACY OF THE DATA. (See Folio 894, line 2 and following). Thus, given the silent admission of such element by the Prosecutor's Office, the proper course then, without further preamble and without the need to continue along this line, is to deem that this banking evidence from Panama was obtained illegitimately as it lacked a judicial order </span><span style=\"font-family:Arial\">…” (f. 17,267 and 17,268 front). </span><span style=\"font-family:Arial; font-weight:bold\">Second. Banking information from Panama that derives from evidence 588 and that contains, for the first time in the investigations, the reference to the Corporation [Name 058], without there being any independent and prior evidence, in this regard.</span><span style=\"font-family:Arial\"> On the occasion of the illegal lifting of the bank secrecy of the accounts of the corporation [Name01 215], information is obtained regarding financial movements from a company unknown to the case at that date. The challengers recall that evidence 588 is a certified copy </span><span style=\"font-family:Arial; font-style:italic\">“of the judicial assistance that originates in the CAJA-FISCHEL cause”</span><span style=\"font-family:Arial\">, the same that was processed in a separate file, </span><span style=\"font-family:Arial; font-style:italic\">“so the proper conclusion is simply that its review and reading were done to locate information for that other cause.”</span><span style=\"font-family:Arial\"> They add that from the Expert Report 428-DEF-443-05-05 of the Judicial Investigation Organism, evidence No. 618, it is extracted what the information coming from Panama is, which contains information about transfers from a company called [Name 058], unrelated to the CCSS-Fischel case, to the company [Name01 215], which was indeed being investigated in that one. This is how the Public Ministry learns of the company [Name 058]. That is, from the evidence coming from Panama in a spurious manner, as was already stated in the preceding section. The illegal information, they add, arrives in Costa Rica at the beginning of September 2004 and is 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 [Name01 215], not about [Name02 058] and as of September 10, the prosecutor's office learned of the existence of this corporation and initiated an investigation into it. Before September 10, there is no reference whatsoever to [Name01 058], so the investigation of case [Name64 091] began with the information obtained from the Panamanian evidence 588, which is void for having been obtained without an order from a competent judge and which therefore must be excluded, as must any element deriving from it. The challengers state that the suspicions regarding the company [Name01 058] are not supported by evidence independent and autonomous from the aforesaid, which would allow the illegality of that information obtained from evidence 588 to be cured. According to the trial court, there are such sources, namely, 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. However, these make no reference whatsoever to the topic under discussion. The existence of a company called [Name 058] does not emerge from those notes. There are only references to a [...] [Name25] to [Name 018]. At folio 935, journalistic notes from April 2004 are cited, which are found in evidence 529.9 and 682.1. However, the first speaks of some topics relating to Taiwan and the second makes reference to “journalistic elements” from April 2004, without mention of [Name01 058]. Nor does the publication cited at folio 936 give the information the judges refer to. In that note from September 28, no allusion is made to [Name01 058]. Furthermore, by that date the illegally obtained banking information from Panama had already arrived, so this evidence is not prior, nor is it autonomous, since by virtue of the illegal banking evidence, information had been requested on the accounts of [Name01 058] within and outside the country, so it is evident that the press had received information </span><span style=\"font-family:Arial; font-style:italic\">“derived” </span><span style=\"font-family:Arial\">in order to </span><span style=\"font-family:Arial; font-style:italic\">“solicitously contribute to the investigation”</span><span style=\"font-family:Arial\">. The complainants add that the interview with Mr. [Name01 213] of September 27 is not prior to the illegal evidence coming from Panama. According to the appealed judgment, it was the banking data that led to new courses in the investigation. That is, the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> acknowledges that it was the illegal evidence that generated the obtaining of the subsequent evidence. Finally, if the judges admit that the reports are subsequent to the banking information received, although theoretically they may well be independent, they can never be prior. </span><span style=\"font-family:Arial; font-weight:bold\">Third. The action of Mr. [Name01 158], in writing and verbally, does not have the “magic” to suppress the invalidity in the obtaining of the banking evidence from Panama</span><span style=\"font-family:Arial\">. According to the trial court, if the evidence proceeding from Panama were to be considered illicit, its use in the process would be viable because it was authorized by the account holder, Mr. [Name01 158]. Faced with this, the challengers reiterate that the evidence was obtained without a judicial order and entered the country on September 10, 2004. With this evidence, liftings of bank secrecy were ordered for companies like [Name02 058], the accused were charged, and precautionary measures were requested. And it is not until May 17, 2010, that Mr. [Name01 158] attempts to authorize the obtaining and use of the information available on the bank account corresponding to the company [Name 215], as the judges state at folio 896 and as recorded in evidence 759, at folio 13,449 of the record. Regarding this authorization, the accused affirm that the intention is to give “</span><span style=\"font-family:Arial; font-style:italic\">retroactive effect to a constitutional violation</span><span style=\"font-family:Arial\">.” They add that such authorization does not legitimize the access made some time ago to the accounts without a judge's order: </span><span style=\"font-family:Arial; font-style:italic\">“… What is intended is that retroactively, as if one could move back in time, it be placed BEFORE September 2004, almost six years before, and give the approval to open the accounts without a Judge's order and BEFORE THEY WERE OPENED. As if nothing had happened. Pure legal alchemy. And at the end of the note, the matter gets better: he says he consents and authorizes the use and utilization, again, that has been done in the past of those documents, that is, he intends to erase everything illegal as if it had not occurred and as if he were the only one affected. UNBELIEVABLE. The letter itself is an acknowledgment of the illegal action of Judges and Prosecutors, since if they were certain of its lawfulness, they would never have drafted such a legal tongue-twister. Let us correctly understand the timeline: the evidence is obtained illegally, it is used to learn of the existence of the company [Name01 058], through it and not through prior and independent sources, the banking information of [Name01 058]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">is accessed and the eventual participation of [Name01 091] and the other accused is determined, some of them are detained, they are charged and prosecuted and, without any embarrassment, almost six years later an attempt is made to cure everything acted upon with the written declaration of [Name01 158]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, who later reiterates verbally before the Court in August 2010, almost SIX YEARS AFTER THE CONSTITUTIONAL VIOLATION</span><span style=\"font-family:Arial\">. </span><span style=\"font-family:Arial; font-style:italic\">First, the Judges at folio 898 attempt to elaborate an absurd thesis, consisting of separating the moment of obtaining the illegal evidence from its incorporation, pointing out that while the former may be illicitly obtained, its validity is analyzed and assessed when it is incorporated into the record. Such a position was already questioned and criticized in previous lines: both vote 1739-92 and the criminal procedural regulations, of constitutional rank according to that vote, clearly indicate that evidentiary elements only have value if they have been OBTAINED BY A LAWFUL MEANS. The incorporation process is subsequent, but its illegal obtaining contaminates the evidence and prevents its use against the accused, not only against the presumed holder of the affected right, which will be analyzed later. Thus, the fact that, according to the Judges, the evidence can be validly incorporated into the process does not suppress its illegal obtaining, by means of the lifting of bank secrecy without an order from a competent Judge. To state without embarrassment that the documents deriving from evidence 588 were not such until the moment they are incorporated into the debate is nothing more than a sad mockery of the legal system and the resolutions of the Constitutional Chamber and the rule of law. With that evidence, which if it were not such, the trial would not have been held, all the accused were processed, deprived of their liberty, charged, and convicted. If it had not existed, as legally it does not exist, it would not even have passed the preliminary hearing and if the Prosecutor's Office respected the Law, it would have withdrawn from the case from the beginning, but their stubbornness in doing things as they wanted and not as they should contaminated all the evidence derived from the documentation contained in evidence 588 and makes it impossible to be legally used in the cause…”</span><span style=\"font-family:Arial\"> (F. 17,271 front). Along these same lines, the appellants add another argument, namely, that both in May and August 2010, [Name01 158] did not demonstrate that he was the legal representative of the company [Name01 215]. In their view, this could only be proven with registry and notarial certifications and not relying on evidence 588, whose legality is being questioned. Furthermore, the statement of [Name01 158], who testifies personally and not as a representative of the company, should be reliably accredited, especially considering that the evidence was obtained almost six years earlier without a judicial order. For the challengers, the majority vote, at folio 897, peacefully accepts that when the banking documentation from Panama is received, the lifting of bank secrecy without a judge's order has already occurred, giving rise to the following situation: “... </span><span style=\"font-family:Arial; font-style:italic\">in the hypothesis that the documents of the bank account of [Name01 215] in Panama were collected without a jurisdictional order, [Name01 158]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">what he does is accept that this result (collection of banking documents) occurred without the respective safeguard (jurisdictional order) to his right to privacy. From this perspective, for this panel, what operates on his part in a technical juridical sense is the waiver of the referred right, which is characterized by being an express procedural act subsequent to the act, characteristics that the action of [Name01 158] meets</span><span style=\"font-family:Arial\">.” Such a criterion is erroneous, since the consent should have been granted before the violation of bank secrecy. What [Name01 158] does in 2010, six years after such violation, is waive his right to privacy, which does not legitimize the evidence in question. The appellants affirm that the issue to elucidate is whether [Name01 158] could waive his right to privacy, given that with this waiver he affects other persons: </span><span style=\"font-family:Arial; font-style:italic\">“This is the true crux of the matter. We are not speaking of the rights of [Name01 215] to its privacy. That would have been correct in September 2004 if at that time the company [Name01 215], through whoever acted as its representative, had authorized the lifting of bank secrecy of its accounts before a request from the Prosecutor's Office or from BAC Panamá itself. Of course it had full competence to authorize the lifting of bank secrecy of its accounts, regardless of who had remitted money to them or who its final recipient was, in the event that had been the case. It is also possible that a posteriori the representatives of [Name01 215] waived their right to privacy and the legal action against the Prosecutor's Office and the Bank for the use of the information derived from those illegally opened accounts, BUT IF AND ONLY IF THEY WERE THE ONLY ONES AFFECTED BY THAT ILLEGAL OBTAINING. Because what the Judges do not want to see is that the constitutional right here is not the privacy of [Name01 215]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">or of Mr. [Name01 158], it is rather and to a greater extent and importance, that of us the accused THAT ILLEGALLY OBTAINED INFORMATION, EVIDENCES, PROOFS NOT BE USED AGAINST US TO RESTRICT OUR RIGHTS AND INTERESTS, WHICH ARE AS MUCH OR MORE IMPORTANT THAN THOSE OF MR. [Name01 158], WHO IS NOT EVEN AN ACCUSED IN THIS CAUSE… If the company had wanted to authorize the opening of its accounts in Panama, it clearly could have done so expressly… in that case the documentary information used against us would have had a lawful origin. But that is not the case. Here, illicitly obtained evidence was used not against [Name01 158] or [Name01 215],… but against third parties, those of us who have a guaranteed constitutional right… that spuriiously obtained evidence not be used against us. The data of [Name01 215] could pass from private to the knowledge of the Prosecutor's Office with authorization from its representatives if they had given it before its use against us, because from that moment on, it is no longer only the privacy of a company and the clear interests of a gentleman who “collaborates” with the Prosecutor's Office that are at stake. That is why it is false and risky to say that denying effects to the note and the words of [Name01 158], six years after the constitutional violation, is COVERING UP AN ILLEGAL PROCEDURE... AND FOSTERING ARBITRARY AND ABUSIVE ACTION IN THE EXERCISE OF PUBLIC POWER. (Folio 913). Rather, it is the complacent attitude of the Majority Judges that leads to covering up an illegal and invasive procedure into the rights of the accused by being accomplices to a constitutional violation consciously: the Judges know that the banking evidence was obtained without a Judge's order, they know it was used to learn of the existence of [Name01 058]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">and its alleged relations with [Name01 091] and the accused, they know it was used to gather evidence without having an independent or prior source and they know that the rights of the accused are violated with it, but they admit that a third party unrelated to the process cures six years later what was definitively broken and when what is at stake is not privacy but judicial dignity, which is what is affected when the use of spurious evidence is applauded. Who is it then that covers up an illegal procedure and fosters arbitrary and abusive action? That is why the legitimate rights of the accused not to have illegal evidence used against them and to have it excluded from the record are indeed affected; it is not that we intend to prevent [Name01 215] or [Name01 158] from cheerfully waiving their privacy, that is very much their business and their clear or obscure interests, God knows. But for [Name01 158] to seek, with the complacency of prosecutors and Judges, that illegal evidence be obtained and used against us is inadmissible. Therefore, the reading of various votes of the Third Chamber that are incorporated has no relation whatsoever to the matter that concerns us. We are not facing cases in which the holder of the privacy waives their rights to intimacy in order to accuse those who have offended or affected them, since neither [Name01 215] nor [Name01 158] are parties in this cause. The error of the Judges can be read when they write at Folio 919 that the banking documentation was not obtained illegally since the knowledge of that information derives from the authorization of the holders of those accounts. FALSE OF ALL FALSENESS. The knowledge derives from an illegal lifting of bank secrecy by the Prosecutor's Office and when using that evidence against other accused, its scope of damage went beyond the simple right to privacy of [Name01 215] and in that expanded damage, neither [Name01 158], nor that company, nor the Prosecutors, nor the Judges are sovereign. Whether or not there was a crime in the manner in which the banking evidence is obtained is a matter unrelated to the record: the obtaining was illegal and its use was spurious, regardless of whether [Name01 158] or [Name01 215] do not wish to accuse those who so acted or that the criminal action has prescribed. Therefore, the posturing that consists of attempting to absolve those who acted illegally of crimes is nothing more than that: posturing. The illegality of evidence does not require deriving from a crime; it is sufficient that its obtaining was contrary to law for it to be excluded, not only it per se, but all that derives from it, unless it has an independent and prior source, which is not the case in this cause…” </span><span style=\"font-family:Arial\">(F. 17,273 and 17,274 front, the transcription is literal). </span><span style=\"font-family:Arial; font-weight:bold\">Fourth. The information coming from the banking evidence from Panama, and which derives from an illegal lifting of bank secrecy, cannot be accredited or validated under the inevitable discovery exception</span><span style=\"font-family:Arial\">. The judges attempt to justify the use of illegally obtained evidence, arguing that it was an inevitable discovery. To do this, they cite judgment No. 125-2001 of the Third Chamber, which indicates that if it is reliably demonstrated that the excluded evidence, for being illegal, would have been discovered or obtained IN AN INEVITABLE OR CERTAIN MANNER FROM THE LEGITIMATE INVESTIGATIONS THAT WERE ALREADY BEING CARRIED OUT AT THAT MOMENT, it can be validated </span><span style=\"font-family:Arial; font-style:italic\">a posteriori</span><span style=\"font-family:Arial\">, not because it was not invalid, but because it would have been arrived at anyway. In this case, none of that occurred. The challengers explain that, when the questioned evidence is obtained, there was no investigation into the [Name64 091] matter, nor was anything known about the company [Name01 058], with which it is evident that there were no legitimate investigations in progress. Moreover, although the judges speak of legitimate investigations of a journalistic nature, explaining that by April 2004 it was inevitable to reach the conclusions that were reached, because journalists were already conducting an investigation that was going to end up finding the connection between [Name01 058] and [Name01 091] itself, such an argument constitutes an interested and unproven supposition. At no time are the media auxiliaries of justice, or substitutes for the State's investigative bodies. But in addition, as of September 27, 2004, the journalists were not referring to [Name01 058] as a transmitter of resources to the accounts of [Name01 215]. However, as of September 10, 2004, the banking information was already available, which would discard the possibility of applying the inevitable discovery criterion to validate the evidence in this case. </span><span style=\"font-family:Arial; font-weight:bold\">Fifth. The banking information from Panama, which comes from an illegal lifting of bank secrecy, cannot be accredited or validated under the casual discovery exception</span><span style=\"font-family:Arial\">. According to the appellants, the evidence coming from Panama is entirely null and cannot be validated in pieces or parts. We are not facing the case, for example, of an illegal raid that leads to the discovery of another crime. The judges, at folio 949, say that before the prosecutor's office examined the banking information, there was already news linking companies and persons, but the truth is that none involved [Name01 058]. The judgment asserts a falsehood, namely, that thanks to that journalistic information the interest in investigating the cited company arose, when the truth is that no journalistic note involved [Name01 058] with the case before September 10, 2004. Therefore,</span><span style=\"font-family:Arial; font-style:italic\"> “… the judges are untruthful when they try to indicate that the Prosecutors had knowledge about evidence or indications of this company and that based on them, which did not exist at that time, they continued with their investigations and upon reviewing the information from Panama, they casually found information relating to [Name01 058]. What a muddle they make in their theoretical posturing. If, according to them, the interest in investigating [Name01 058] and its relationship with [Name01 018] had already arisen, which is false, what explanation would the casualness in the finding have, since according to them the Prosecutor's Office was already going after [Name01 058]. It is evident that there was no indication whatsoever prior to September 10 regarding [Name01 058]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">and its link to the case, which had not even begun…</span><span style=\"font-family:Arial\">” (F. 17,275 front). Therefore, it is not possible to apply the casual discovery exception in this case to validate the evidence. </span><span style=\"font-family:Arial; font-weight:bold\">Sixth.

The banking information from Panama was obtained illegally and an attempt is made to validate it as a *notitia criminis*, which is contrary to the Law. They point out that *“… what this thesis leads directly to is denying all evidentiary value to the Panama evidence, but seeking to ensure that whatever derives from it does possess such value, in accordance with the existing jurisprudence of the Sala Tercera...”* (F. 17.276 front). But the truth is that no evidence of a crime attributable to [Nombre01 058] derives from that evidence. There is only record that this company sent transfers to [Nombre 215], which was under investigation in the CCSS-FISCHEL case. The defendants also reject that the information generated after an illegal lifting of bank secrecy be considered *notitia criminis*, and that for this reason, it cannot be used against any accused.

**XXII.- The arguments must be dismissed**. First of all, it is necessary to clarify that although [Nombre01 001], [Nombre01 028] and [Nombre01 041] were absolved of all penalty and responsibility, [Nombre01 018], who is the fourth accused filing the appeal in his personal capacity, is not in that situation; hence, at least as far as he is concerned, the challenge retains interest. Having clarified this, the issue of the legality of evidence item No. 588 was decided by the Sala Tercera upon hearing and resolving the cassation appeal filed by the Public Ministry against the ruling previously issued by this appeals court (with a different panel), **concluding that it is lawful** and **further ordering that based on that** (the legality of the cited evidence) the remand be carried out: *“… Regarding the Public Ministry’s claim concerning the declaration of illegality of evidence item 588, because the Appeals Court of the Criminal Sentence considered that it was gathered without an order or endorsement from a jurisdictional body, a necessary condition, in its view, for the validity of said evidence, Judges López Madrigal, Gómez Cortés and Judges Desanti Henderson and Sanabria Rojas, we consider that, although this Chamber, with a different panel, ruled on this same evidence, in majority vote 2011-00499, of eleven forty-five hours, of May eleventh, two thousand eleven, it is quite true that the criteria expressed in that ruling do not obligate this new panel to preserve or evaluate them in the same way, so that, based on the principles of judicial independence and impartiality, the undersigned Judges disagree regarding the requirement of a prior resolution from a Costa Rican jurisdictional body or an endorsement from the Criminal Judge, prior to the request for evidence made by the Costa Rican Procuraduría General de la República as a validity requirement to access the information gathered in Panama, through the TALM, given the position assumed by the Appeals Court of the Sentence in the challenged ruling 2012-2550, this Chamber with the majority of the present panel addresses the matter in the terms set forth below. Before addressing the substance of the appeal filed, it is necessary to delve into the topic of State sovereignty as a principle of Public International Law and its implications in our legal system, it being appropriate to note that as part of the concept of sovereignty, which encompasses population, territory, and State powers, the Costa Rican Political Constitution, in its articles 5 and 6, defines the national territory in which complete and exclusive sovereignty is exercised. From the territorial space definition assumed in the cited numerals, article 9 of the Political Constitution also describes the internal organization of the territory and the separation of powers into three mutually independent bodies: Legislative, Executive, and Judicial, as well as their competencies as part of the exercise of that State sovereignty. In relation to the Judicial Branch, a topic of great importance in the resolution of the sub judice, the Magna Carta itself grants it specific functions, according to articles 9, 10, 39, 48, 49, 152 and 153, which are regulated through numerals 1 to 5 of Law 7333, Organic Law of the Judicial Branch, and among which stand out the application –obviously to the inhabitants of the Costa Rican territory– of the laws and norms enacted by the Legislative Branch, which by article 29 of the Vienna Convention on the Law of Treaties also intrinsically carry respect for the sovereignty principles of other nations as “a fundamental right of any State in the international community” (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, Mexico, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.87) and to that of non-interference in another territory or in the internal legislation of each country as a corollary of the former, because each of them has the power to be independent regarding their internal regulations. However, the aforementioned principle of international sovereignty is not absolute, given that “…in the foreign relations of said States, they can legally bind themselves through treaties and other international agreements to exercise their sovereignty” (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, Mexico, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.103), through organizations such as the United Nations via action plans for the signing of conventions or agreements such as the Model Treaty on Mutual Assistance in Criminal Matters, approved as the Milan Plan of Action, by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and by the General Assembly in its resolution 40/32, of November 29, 1985, are “suitable model instruments that can be used as international and regional conventions and as guides for the drafting of national laws” (Preamble of the Model Treaty on Mutual Assistance in Criminal Matters) to be used precisely as “… a useful framework that can serve interested States to negotiate and conclude bilateral agreements aimed at improving cooperation in matters of crime prevention and criminal justice” (First aspect of the Preamble of the Model Treaty on Mutual Assistance in Criminal Matters). It is thus how, for example, based on the Model Treaty on Mutual Assistance in Criminal Matters, the States Members of the United Nations, such as Costa Rica, in compliance with the purposes of that international instrument, have also undertaken the task of subscribing conventions or treaties that, without harming the sovereignty of other countries or the country itself, produce understanding among governments on specific topics that afflict them, such as: the United Nations Convention against Corruption (ratified by Costa Rica through Law 8557, of November twenty-ninth, two thousand six) or such as the United Nations Convention against Transnational Organized Crime (Palermo Convention, 2000, ratified by Costa Rica, through Law 8302, of September twelfth, two thousand two), whose primary aims lie in improving the investigation of criminal behaviors that afflict not just one State but the rest of the countries in the area, it being observable that in that endeavor Costa Rica has signed numerous specific treaties or conventions with other countries such as Mexico (Law 7282, of January fourteenth, nineteen ninety-two), Panama (on November 29, two thousand one), Argentina (Law 8610, of November first, two thousand seven), Trinidad and Tobago or as in the case before us, the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM), approved through Law 7696, in force since October thirtieth, nineteen ninety-seven, which has taken as a point of reference, often verbatim, what is stipulated in the aforementioned Model Treaty. Thus, the TALM, apart from containing the same limitations or restrictions on use and confidentiality protection (articles 8 and 9 of the United Nations Model Treaty on Mutual Assistance in Criminal Matters) supra described, also presents the same requirements concerning the requests from competent Authorities of the States as well as their own content. Precisely, like the United Nations Model Treaty on Mutual Assistance in Criminal Matters, the purpose of the TALM subscribed by our country with the other Central American countries and Panama is: “to strengthen and facilitate the cooperation of justice administration bodies in the region, through a legal instrument that allows legal assistance in criminal matters between the States of the Central American Isthmus with full respect for the internal legislation of each State” (Preamble of the TALM). In this way, through this type of norms, it is possible to make requests to contracting countries, which allow access to evidence located in neighboring countries to facilitate the investigation of criminal cases with punishable acts classified as such in both the Requesting and the Requested State, as admitted by article 2.2. of the TALM: “Legal assistance in accordance with the provisions of this Treaty includes: a) The taking of testimonial statements. b) The obtaining and execution of means of proof. c) The service of judicial resolutions and other documents emanating from competent authority; d) The execution of precautionary measures. e) The location of persons; and f) Any other legal assistance agreed between two or more Contracting States...” (Article 2.2 of the TALM. Emphasis added), it being the case that in order to improve communication between the Central American States and Panama that subscribe the Treaty, the option was taken to duplicate the mechanism devised in the Model Treaty on Mutual Assistance in Criminal Matters, namely, the designation of “...an authority or authorities through which the requests provided for in this Treaty must be formulated or received and shall notify the other Party thereof...” (Article 3 of the Model Treaty on Mutual Assistance in Criminal Matters), it being understood that said Central Authority or Authorities in the Contracting States, present “… sufficient administrative capacity, through which requests for assistance shall be processed in accordance with this Treaty” (Article 3 of the TALM. Emphasis added). Similarly, every request process, safeguarding the domestic law of the Signatory Countries, must be managed through a simple procedure in which the so-called “Central Authorities” of each of those countries intervene: The Central Authority of the Requesting State makes a formal request for assistance to its counterpart in the Requested State, and the latter, in turn, in accordance with its domestic law, processes it and gathers the evidence that the Requesting State needs to obtain, there being no—since it is a power assumed by the various States—uniformity in the designation of the Central Authority for the various Central American countries and Panama. Thus, by way of example, the Central Authority designated by the countries of Costa Rica and Nicaragua is the Procuraduría General de la República, while in El Salvador, Guatemala, and Honduras, it corresponds to the Supreme Court of Justice, and in the Panamanian case, to the Ministry of Government and Justice, since, as has been established, the task of the Central Authority in each country will be merely administrative and not jurisdictional, in accordance with the inference that can be drawn from the preamble of the Treaty, in line with the principle of Pacta Sunt Servanda and the rules of good faith in the interpretation of treaties, contained respectively in articles 26 and 31 of the Vienna Convention on the Law of Treaties, approved by the Legislative Assembly of Costa Rica by Law 7615 of July 24, 1996 (hereinafter Vienna Convention), since with the ratification of the Treaty by the Central American States and Panama, the aim was to create an agile legal instrument that would allow the collection or obtaining of external evidence in the investigation of criminal matters in the region, respecting, of course, the sovereignty and the internal legislation of each country, it being the case that said purpose can also be derived from numeral 5 of the TALM, which establishes: “The Central Authority of the Requested State shall comply promptly with the request for assistance or, when appropriate, shall forward it to the competent authority. Said authority shall use all legal means at its disposal to comply with the request.” (Emphasis added). On the other hand, in relation to the applicable regulations for obtaining the means of proof requested by the Requesting country, the Treaty—by the principle of respect for the sovereignty of the other contracting countries—is clear in stating that any request, once made known to the Requested country through its Central Authority, must be processed and executed in accordance with its domestic law, the existing laws or formalities of that country, that action being reiterated, both in the cited numeral 5 and in ordinals 7.1 and 12.1 of the same Treaty, to finally establish expressly in article 6 that the Requested country has the power to refuse to comply with the request for assistance when: “...a...Considers that compliance with the request for assistance may prejudice its sovereignty, security, or public order…” (Emphasis added). On the topic of the interpretation of the TALM and its scope, special mention must be made of the Inter-American Convention on Mutual Assistance in Criminal Matters, signed in the City of Nassau, Bahamas (hereinafter Convention of Nassau) on May 23, 1992, but ratified by Costa Rica, by Law 9006, only on January 3, 2012, for although that text as such would not have the virtue of being binding, for having been ratified after the issuance of the first-instance judgment in this case, it is quite true that, by strict application of articles 31, 32, 53, and 64 of the Vienna Convention on the Law of Treaties, an unratified treaty remains part of the “jus cogens”, and can therefore be used as an interpretive instrument, provided it does not contravene the norms of international law. Having clarified the point, it must be noted that the aforementioned Convention of Nassau, which is the precursor to the TALM, also contains similar rules regarding the application and scope of the Convention (article 2), the appointment of the Central Authorities of the contracting countries (article 3), as well as on the obtaining of evidence in the requested countries (article 4), highlighting, in what is relevant, the rule contained in cited numeral 4: “… The assistance referred to in this Convention, taking into account the diversity of the legal systems of the States Parties, shall be based on requests for cooperation from the authorities in charge of the investigation or prosecution of crimes in the requesting State” (Emphasis added), that is, both the TALM and the Convention of Nassau establish that the requests made to the Central Authorities, call them, Ministry of Government and Justice, Procuraduría General, Fiscalía General or any governmental entity freely chosen by the Signatory States, are procedures carried out only through “requests for cooperation” or “assistance”; however, both normative bodies never refer to the term “jurisdictional resolutions between Authorities” of investigation or prosecution, since these are petitions made to the Requested State, which are processed in accordance with its domestic law (article 10, first paragraph of the Convention of Nassau). In this regard, precisely vote 2011-11969, of fourteen thirty-four hours, of September seventh, two thousand eleven, of the Sala Constitucional, issued with reference to the constitutionality of the bill for the Approval Law of the Convention of Nassau, held that: “…The Convention is composed of forty articles, and was signed in the City of Nassau, Bahamas, during the twenty-second regular session of the General Assembly of the Organization of American States, on May 23, 1992. The bill proposes a multilateral response aimed at combating the scourge of organized crime; updating, improving, and homogenizing the internal legislation of the Inter-American System. Mutual assistance covers investigations, trials, and proceedings in criminal matters regarding crimes that the requesting State must hear (article 2). It is indicated that the principle of double criminality is enshrined, insofar as assistance shall be provided even if the act giving rise to it is not punishable in the requested State but is—with a penalty exceeding one year—in the requesting State, except if it involves the application of precautionary measures (articles 5 and 6). The procedural acts in which assistance shall be provided are listed, including the transfer of detained persons (article 7) and the possibility of denying the requested assistance (article 9). It also regulates the procedure for requesting, processing, and executing assistance (articles 10 to 16); the manner in which resolutions, orders, and judgments must be served and the appearances of experts and witnesses (articles 17 to 23); the manner of transmitting information and records (articles 24 and 25); and the procedure proper of the assistance (articles 26 to 31). Finally, the final clauses are listed (articles 32 to 40), which allow States to formulate reservations, and regulate the ratification and entry into force of the Convention. The broad possibilities that States have to deny assistance when they deem it appropriate must be highlighted, and the important figure of the transfer of detainees which—being a temporary measure—is far removed from the extradition process and significantly facilitates the purposes of the Convention. In general, it can be stated that this interstate assistance convention in criminal matters is a legal instrument that allows guaranteeing the operation of criminal law in a society where criminality is increasingly more organized and transcends borders. The signing of this Convention allows American states to facilitate the application of criminal procedures, especially in cases where there are no bilateral treaties. It must be clearly understood, moreover, that the treaty must be interpreted in concordance with internal regulations on the matter (in particular articles 5 second paragraph, 7 subsection i, and 20 subsection c, which are discretionary provisions; and 24 subsection 2 which requires an order from a national judge in internal regulations) and that all those situations not contemplated in the Convention will be supplemented by the legal system in general, including for this purpose the various international instruments in force in criminal matters…” (Emphasis added), the highest constitutional body of our country concluding, with respect to the bill for approval of the Convention of Nassau—which later became law of the Republic and remains in force today—that Costa Rica, as a State from which assistance is requested (Requested State), must provide collaboration or assistance in accordance with its internal regulations, making use of its traditional legitimate means to safeguard the rights of those for whom cooperation is requested, and even emphasizing the use of those means in force in the country to protect the rights of the subjects whom the evidence could harm, the sentence in question never referring, at any time, to the formal requirements necessary to request as a Requesting State, nor less to the need for a jurisdictional endorsement or order at the time of requesting assistance, something that was indeed contemplated for those cases where the evidence must be gathered in our territory, as part of the obligations acquired by signing the Treaty as a Requested State.* In this regard, it should be noted that the ruling refers to articles 5, second paragraph, 7(i), and 20( ) of the Convention as discretionary provisions of the State from which legal assistance is requested (Requested State) and to rule 24(2) of that same body of law as the sole premise under which the remittance of documents, information, and records requires a respective judicial order from Costa Rica as the Requested State, reiterating that in consideration of the draft of the Nassau Convention, the precursor to the TALM, our highest constitutional body never indicated, as a prerequisite of validity for a request for Costa Rican cooperation to other Central American States and Panama, the requirement of a jurisdictional endorsement or order emanating from a Judge to petition the other Signatory Countries. Rather, the requirement of a jurisdictional order was determined solely and exclusively for those cases in which our country is requested to deliver information to the States seeking assistance. That is, it is a reasoning clearly consistent with the purpose of the Convention, insofar as it seeks absolute respect for the internal regulations of each contracting country, since assistance is a mechanism for aid in obtaining evidence that is merely administrative. Costa Rica, or any other country party to the Convention as a Requesting State, cannot, without violating the principle of sovereignty, order the Requested State to gather evidence through a jurisdictional order, because the manner in which assistance is carried out is at the discretion of the Requested State, according to its internal provisions. In the Costa Rican case, such assistance, once processed by the Requesting State, could well be gathered, with the formalities required by rule 24 of the Political Constitution, through the strict application of numeral 24 of the Nassau Convention, which reads: "In cases where assistance is appropriate under this Convention, upon prior request, and in accordance with internal procedure, the Requested State shall provide the Requesting State with a copy of the documents, records, or information of a public nature that are held in the governmental agencies and departments of the Requested State./ The Requested State may provide copies of any document, record, or information held in a governmental agency or department of said State that is not of a public nature, to the same extent and under the same conditions as they would be provided to its own judicial authorities, or other law enforcement authorities. The Requested State may, at its discretion, deny in whole or in part a request made under this paragraph" (Emphasis added). As is clear from rule 24 of the Convention and from vote 2011-11969 of the Constitutional Chamber cited above, obtaining evidentiary elements in Costa Rica as the Requested State must be done in accordance with the legal provisions of our legal system. Thus, if domestic law requires a Judge's order to access the requested information, its issuance will be indispensable. However, that same procedure is not applicable in the scenario where Costa Rica requests information from another country (Requesting State), as follows from the same aforementioned ruling 2011-11969: "… In the event of a potential provision of assistance that may be considered harmful to the fundamental rights of the subject of the collaboration, the traditional remedies provided for the protection of such rights in our legal system may be used. For the foregoing reasons, this is an instrument that conforms to basic constitutional values and principles, and is therefore substantially consistent with the parameter of constitutionality…" (Constitutional Chamber of the Supreme Court of Justice, vote 2011-11969, at fourteen hours and thirty-four minutes, on September seventh, two thousand eleven. Emphasis added).

In addition to the foregoing body of interpretation, it is also well-known that the TALM, being derived from the Nassau Convention and adopting the same mechanism for obtaining evidence in the Requested States, in no way presents constitutional conflicts, according to the opinion issued by the Constitutional Chamber in vote 1997-04711, at sixteen hours and twenty-one minutes, on August nineteenth, nineteen ninety-seven, which resolved a consultation on constitutionality regarding the bill for the approval of the Mutual Legal Assistance Treaty in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM), currently a law in force in the Republic. The aforementioned vote 1997-04711 established in its interpretation, firstly, the purposes of the Treaty and, secondly, inquiries regarding the constitutionality of the mechanism for obtaining evidence once the request from the Requesting State is received in Costa Rica as the Requested State. Our Constitutional Chamber ultimately determined the absence of constitutional conflicts, even when purely administrative functions are assigned to the Procuraduría General Costarricense. Indeed, the cited vote, as relevant, determined: "…IV. Regarding the merits of the matter, it is considered appropriate to issue a non-binding opinion, to point out that the Treaty, according to the Executive's statement of purposes, seeks to fulfill the following purposes: 'The States of the Central American Isthmus have signed this Treaty in order to create a legal framework that allows them to mutually assist each other in criminal matters being processed in their respective Courts of Justice. However, the signatory countries have considered this assistance to be limited to ancillary aspects of the proceeding, which do not detract from each State's sovereign duty to administer justice. In this sense, its purpose is to facilitate the execution of a procedural act in those cases where the collaboration of authorities from another State is necessary. The assistance covers the following aspects: taking of witness statements, obtaining and execution of evidentiary means, notification of judicial decisions, execution of precautionary measures, location of persons, Name02, and any other type of assistance agreed upon between two or more States Parties. However, considering that there are certain competencies that require a specific Agreement for their execution, this Treaty excludes from its scope of application aspects related to fiscal matters, the detention and extradition of persons, the transfer of criminal proceedings, and the transfer of convicts for the purpose of serving criminal sentences in other countries.'/V. Firstly, it is worth simply clarifying that, although the text of the convention allows the execution of measures capable of potentially harming fundamental rights, such as, for example, access to data, the apprehension or seizure of objects; the delegation of the action to a jurisdictional authority and the mandatory subjection to each country's internal regime on the matter eliminate any possible contradiction with the Fundamental Charter./Finally, the Chamber also does not find it contrary to the Constitution that the Procuraduría General de la República was designated as the 'central authority' for processing assistance requests, as the treaty itself clarifies that it acts as an administrative authority (article 3) and its function consists of referring the petitions to the competent judicial authority, which, ultimately, will execute the requested act…" (Constitutional Chamber of the Supreme Court of Justice, vote 1997-04711, at sixteen hours and twenty-one minutes, on August nineteenth, nineteen ninety-seven. Emphasis added).

This constitutionality criterion was, moreover, reiterated in judgment 2001-04248, at fifteen hours and four minutes, on May twenty-third, two thousand one, from the same Constitutional Chamber, when resolving an action of unconstitutionality against article 13 of the TALM. On that occasion, our highest constitutional body, when studying the procedure adopted by the Treaty for obtaining documentary evidence, established the unnecessary nature of consular processing as a mechanism for evidentiary validation, Name11 provided that said diligence had been carried out in accordance with the domestic procedural rules of the Requested country, stating: "…From the reading of the challenged article, this Tribunal verifies that it provides the guidelines for sending a copy of public documents as a consequence of a request for assistance required by one of the States party to the Mutual Legal Assistance Treaty in Criminal Matters, indicating that the documents will be supplied under the same conditions that it would supply them to its own law enforcement authorities. Said documents must be prepared by the official of the Requested State responsible for keeping them in custody and certified by the Central Authority, using a seal whose format appears in the annex of this Treaty. That is, although the rule exempts the copies of the requested documents from processing before the consular notary, it does establish a mechanism that guarantees the truthfulness and authenticity of their content by requiring that such documents be produced by the official responsible for keeping them in custody and certified exclusively by the Central Authority (as indicated for each Contracting State in article 3 of the Treaty), through the seal designed for this purpose. This mechanism is consistent with the principle of due process insofar as, in each case, the competent authorities of the Requested State have prepared and exercised control over the actions indicated by the rule, Name02, and provided that the document has been certified by the respective central authority, so that the requirements of due process at the constitutional level have been satisfied…" (Constitutional Chamber of the Supreme Court of Justice, vote 2001-04248, at fifteen hours and four minutes, on May twenty-third, two thousand one).

This position reaffirms the thesis that the mechanism for obtaining evidence must be that followed by the domestic legislation of each Requested country, and the prior issuance of a jurisdictional order emanating from the Requesting Country cannot be interpreted as a requirement of validity. Furthermore, this same approach was reiterated more recently by the Constitutional Chamber in ruling 2011-002074, at seventeen hours and forty-three minutes, on February fifteenth, two thousand eleven, when resolving an action of unconstitutionality brought against articles 2.5 and 12.1 of the TALM. In that ruling, although it was summarily dismissed, it determined, regarding the Requesting State's request for assistance, that: "…Observe that the assistance provided for in the aforementioned Treaty contemplates the taking of witness statements, the obtaining and execution of evidentiary means, the notification of judicial decisions, the execution of precautionary measures, the location or tracking of persons, Name02, and any other class of assistance agreed upon between two or more States Parties. Regulations that exclude from their sphere of application topics related to fiscal matters, the detention and extradition of persons, the transfer of criminal proceedings, and persons deprived of liberty, for the purpose of serving criminal sentences in other countries. It is clear that, although the comprehensive literal text of the convention empowers the eventual execution of measures restricting fundamental rights, such as, for example, access by competent jurisdictional authorities, in accordance with the domestic law of each Social and Democratic State of Law, to data, the apprehension or seizure of assets; such subjection rules out any contradiction with the Law of the Constitution, where what is relevant lies in the non-interference with the exercise of the natural function of entities of another Branch of Power (See resolution number 1997-04711, at 16:21 hours on August 19, 1997, Constitutional Chamber, Supreme Court of Justice)…" (In the same vein, Constitutional Chamber of the Supreme Court of Justice, vote 2001-4248, at fifteen hours and four minutes, on May twenty-third, two thousand one).

Lastly, from the letter of the TALM and the principle of State sovereignty, it is possible to conclude that evidentiary elements gathered in the Requested States, Name11, provided they have been formally processed by the Central Authorities previously established in the Contracting States and that the internal formal procedures are followed in their procurement, shall be valid. This is as Costa Rica has recognized, as part of the obligations acquired upon ratifying the Model Treaty on Mutual Assistance in Criminal Matters, in the report of April twenty-eighth, two thousand eleven, sent to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, constituted since the year two thousand by Ministers of Justice and Attorneys General of the Name10 countries of the Organization of American States. In that document, our country admitted before the rest of the Signatory States of that body of law the existence and validity of national and international procedures assumed by Costa Rica, aimed at obtaining evidentiary elements in the investigation of criminal proceedings. Among these, the mechanism accepted with the ratification of the TALM widely stands out. No limitation or reservation in this regard is denoted or derived from that chronicle, but rather a strict adherence to the principle of good faith in the interpretation of the Treaty (article 31 of the Vienna Convention on the Law of Treaties), by recording as part of the Costa Rican legal system: "…several means for the reception and processing of requests, one at the domestic level, and the rest, at the international level, which derive from the signing of agreements referring to different matters that in turn allow for mutual legal assistance:/1.- At the national legislation level, for use in those cases where no international agreement exists that provides for corresponding assistance matters, we have the provisions in articles 705 and following of the Code of Civil Procedure, which establishes the Title on 'Effectiveness of foreign judgments and awards,' a mechanism designed to provide international legal assistance./ Likewise, we have Law No. 7786 of April 30, 1998 (Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, and Related Activities), amended by Law No. 8204 of December 26, 2001, related to the topic of drugs, whose numeral 8° briefly and concisely contemplates powers to provide and obtain judicial and police collaboration in this matter. Likewise, article 65 of the Code of Criminal Procedure grants the Public Prosecutor's Office the possibility of forming joint investigation teams with foreign or international institutions./2.- Regarding the system of legal assistance predetermined by international agreements, it is necessary to point out that Costa Rica does not have a single central authority, but rather has several central authorities to fulfill its international obligations, in accordance with the treaties in force, for sending and receiving mutual assistance requests in criminal matters./After more than three years of conversations with the Ministers of Foreign Affairs and Worship, Ministers of Justice, and the Procuradora General de la República, the President of the Republic Oscar Arias Sánchez and the Minister of Justice Laura Chinchilla Miranda issued Decree Number 34501-J, published in the Gazette of May 7, 2008, appointing the Fiscalía General as the central authority for the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, ratified by Costa Rica since the year 2002. Likewise, the President of the Republic and the Minister of Justice approved Decree Number 34543-J, which designates the Fiscalía General de la República as the Central Authority to channel mutual legal assistance and technical cooperation, as provided within the framework of the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. The Fiscal General entrusted OATRI with the task of central authority under these two conventions through administrative resolution number 74-08 of June ninth, two thousand eight, and through administrative resolution number 167-2008 of September eighth, two thousand eight./The system imposed by the United Nations Convention against Transnational Organized Crime and by the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials establishes the intermediation of the central authority, in these two cases OATRI, which shall have the obligation to process the assistance request./The central authorities in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and in the Mutual Legal Assistance Treaty in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, and Panama, are the Instituto Costarricense sobre Drogas and the Procuraduría General de la República, respectively./ Regarding the Central American Treaty on Mutual Legal Assistance in Criminal Matters, the system imposed by said agreement establishes, in principle, the intermediation of a central authority with sufficient administrative capacity, which shall be in charge of processing the assistance request. This authority shall proceed to refer it to the competent jurisdictional authority, which will ultimately handle the judicial requirement made, all in conformity with the regulations in force of the Requested State's legal system. This task, in the case of Costa Rica, currently falls upon the Procuraduría General de la República, in conformity with article 2 of the cited international text, with the Fiscalía General de la República being the recipient of requests at the national level for the Judicial Branch…" (Report delivered by Costa Rica on April twenty-eighth, two thousand eleven, to the Hemispheric Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition, at Http://www.oas.org/juridico/mla/sp/index.html. Emphasis added). This last cooperation mechanism has remained in force, even though it has been reviewed on several occasions by the Costa Rican Constitutional Chamber, through the votes cited above.

Based on the foregoing and in strict adherence to the purpose of the TALM, this Chamber considers, by the indicated majority, that the procedure used to obtain the bank records of the company [Nombre 215] in Panama was protected by law, insofar as the Costa Rican Public Prosecutor's Office was empowered by numerals 62 of the Code of Criminal Procedure and 2 of the Organic Law of the Public Prosecutor's Office, as an organ of criminal prosecution, to process the assistance and investigation under the terms of application of the TALM, before the Procuraduría General Costarricense, as occurred in this particular case with the assistance request directed to the Republic of Panama. The issuance of a Costa Rican jurisdictional order at the time of requesting it was unnecessary.

Now, regarding the administrative and non-jurisdictional formalities that should have been fulfilled when processing the respective cooperation from the Costa Rican Central Authority to the Requested State, it remains to be noted that article 3 of the TALM is what determines the procedure to be followed in the Requesting State, by regulating that the provision of evidence between the Contracting Countries shall be governed by the domestic law of each country. Through the competent Central Authority "with sufficient administrative capacity," it shall have the function of processing the assistance petitions of the various Signatory Countries. Immediately after this definition, article 4 of the TALM details the requirements to be satisfied in the written request submitted to the Requested Country, among which are distinguished: "a) The competent authority requesting the assistance. b) Purpose of the request and description of the assistance requested. c) Description of the facts constituting the offense subject to the assistance in accordance with the laws of the Requesting State. The text of the pertinent legal provisions must be attached or transcribed. d) Detail and basis for any particular procedure that the Requesting State wishes to be carried out. e) Specifications regarding the term within which the Requesting State wishes the request to be fulfilled. 2.- In relevant cases, the request for assistance shall also include: a) Available information on the identity and presumed whereabouts of the person or persons to be located. b) The identity and presumed whereabouts of the person or persons to be notified and the connection said persons have with the case. c) The identity and presumed whereabouts of those persons required in order to obtain evidence. d) The description and precise address of the place to be searched and of the objects to be seized; and e) Any other information necessary for the execution of the assistance request…" (Emphasis added).

It follows from this rule, as a first requirement, the specification of the "Competent Authority" requesting the assistance in the Requesting Country. It cannot be deduced from that phrase, as the Sentencing Appeals Tribunal seems to understand it in the challenged judgment 2012-2550, the formality of a prior issuance of a "judicial resolution" issued by a "competent jurisdictional authority" of the Requesting State. This is because this fourth article refers to a "competent authority," immediately after the States Party to the Treaty designate, for each of their territories, the respective administrative Central Authorities in charge of centralizing and directing assistance requests from their counterparts.

Likewise, it is unquestionable that the second paragraph of article 4 of the TALM refers to the terms "request and description of the assistance requested," and not to the concepts "resolution," "ruling," or "jurisdictional order." Therefore, the Requesting State's petition could not mean that a Judge of that State orders the Central Authority of the Requested State to obtain evidence in its territory. First: because judicial action in any State is limited by the very concept of jurisdiction, understood as: "the public function of administering justice, emanating from the sovereignty of the State and exercised by a specialized body (…) Since jurisdiction is an emanation of the State's sovereignty, or rather, sovereignty applied to the function of administering justice, we can say that the limits of the former are the same as those of the latter, that is, a limit regarding the territory and a limit regarding the persons; where and to whom it is applied…" (DEVIS ECHANDÍA, General Theory of Procedure, Editorial Universidad, Buenos Aires, 1984, p.73 and 99). Thus, if that resolution exceeds the population and territorial limits over which the Judge can act, an excess would have occurred, which would have the effect of invalidating the evidence obtained. Second: unlike a jurisdictional resolution that has the virtue of being executed even by force, the management of assistance or collaboration in the Requested country is discretionary or optional. If the request shows non-compliance with one or more of the requirements contemplated in articles four and six of the TALM, the Requested State may condition its delivery, or else, completely refuse to send the evidence.

Third, the issuance of a judicial order emanating from the Requesting Country, Name05, constitutes an untimely interference by the petitioner in the domestic law of the country from which assistance is requested, which entails an inconceivable violation of the principle of State sovereignty. Having clarified these questions regarding the powers granted in the TALM, it is necessary to analyze Costa Rica's domestic legislation concerning the right to privacy of communications and the necessary issuance of a judicial order to access that information.

Thus, while Article 24 of the Political Constitution establishes that: “…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 amendment shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall specify in which cases the Courts of Justice may order the seizure, search, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance (…) Judicial resolutions covered by this rule must be reasoned and may be executed immediately. Their application shall be a non-delegable responsibility of the judicial authority (Emphasis added), it is true that, in our territory, Article 1 of Law 7425, the Law on the Registration, Seizure and Examination of Private Documents and Intervention of Communications, grants the exclusive competence to order the registration and seizure of private documents to Costa Rican Judges, who, by means of a reasoned judicial resolution, may order such diligence, authorizing “…the registration, seizure, or examination of any private document, when it is absolutely indispensable to clarify criminal matters submitted to their cognizance…” (Article 1 of Law 7425. Emphasis added), and being able as part of their attributions to “…order, ex officio, at the request of the police authority in charge of the investigation, the Public Prosecutor's Office, or any of the parties to the proceeding, the registration, seizure, and examination of any private document, Name11, that may serve as indispensable evidence in the commission of a criminal conduct…” (Article 2 of Law 7425). Based on the foregoing premises and the treatment that our legal system grants to the right to privacy of communications, it is evident that our Judges lack the authority and jurisdiction for their provisions, embodied in a judicial resolution ordering the breach of the fundamental right of confidentiality of communications, to extend beyond our territory. Likewise, they also lack the legal authority to direct public officials of another country in obtaining evidence necessary for the investigation of criminal cases, since their coercive powers are limited to Costa Rican territory (Cf. Article 1 of the Organic Law of the Judicial Branch) and to personal action, as set forth in the final part of Article 2 of Law 7425. In light of these premises, for the majority of this Chamber, the procedure undertaken under the TALM aimed at obtaining evidence in the investigation of criminal matters is lawful. This is because, if hypothetically the requirement of a judicial order in Costa Rica were assumed, in compliance with the safeguarding of the rights of the intervened party, our Costa Rican Judges, as part of the obligations contained in our domestic law, would even have had to notify and personally deliver “…a copy of the judicial order authorizing it, to the person whose documents are being searched or examined. A record shall be drawn up of this, a copy of which shall also be delivered to said person upon completion of the diligence...” (Article 4 of Law 7425. Emphasis added), an action that is unthinkable when dealing with the jurisdiction of another country. On this matter, precisely, this Third Chamber, in Voto 2008-1061, of ten o'clock, on September twenty-second, two thousand eight, when resolving a case in which, to conduct a jurisdictional advance of evidence (anticipo jurisdiccional de prueba), the Costa Rican Criminal Judge traveled to a Consular Office, established that such diligence could not be carried out in a territory other than our own, stating that: “…Regarding the lack of jurisdiction of the Criminal Judge who directed the act (…) In relation to this issue, the provisions of Article 132 of the Criminal Procedure Code are fundamental, which clearly establishes that: “…The court may convene in any place within the national territory, when it deems it essential to directly examine decisive evidentiary elements in a case under its cognizance and jurisdiction (…) It is evident that a Judge cannot perform a jurisdictional act in another country, since such authority to decide finds its limit in the territory in which it was granted, and to that extent, the action of Judge R.G.V., in traveling to Colombia to personally direct the statement given via jurisdictional advance of evidence by xxxx, violated the principle of sovereignty of that country…” (Third Chamber of the Supreme Court of Justice, Voto 2008-1061, of ten o'clock, on September twenty-second, two thousand eight, emphasis added). Now, regarding the issue of the order as a requirement for seeking assistance from Panama in the present case, the majority of this Chamber does not observe any defect to declare in the procedure followed to gather the banking transactions (movimientos bancarios) of the accounts of the company [Nombre 215] in Panama, insofar as the regulations contained in Article 24 of the Constitution and Law 7425 refer only to those cases in which the aim is to obtain evidentiary elements found in Costa Rica, or alternatively, when our country acts as the Requested State, according to the TALM, as it involves a judicial resolution that can well be executed by force, a final assumption not contemplated for cases in which our country acts as the Requesting State, since under no circumstance does the Costa Rican Judge have the legal power to give orders to foreign Authorities. In this regard, see that Article 12 of the TALM prohibits Requesting States from imposing their domestic law, given that the Treaty is nothing more than an agreement in which the voluntary action and good understanding of the Contracting Countries prevail, who, through the signing of that Convention, commit to act in the search for the requested evidence under their domestic law. It can be derived from the aforementioned Article 12, in conjunction with Article 4, both of the TALM, that the request for the delivery of evidence between signatory countries must be made through the competent Central Authority of the Requesting State, explaining the facts under investigation, the alleged offenses for which the assistance is being sought, its purpose, and the detail of the evidence requested. This is for the purpose of corroborating the requirement of dual criminality of the illicit conducts investigated and highlighting their denial or conditioning. Having clarified this point, it remains to analyze the procedure followed in the sub examine for obtaining the Evidence in Panama. Precisely, from the study of the case file, it can be deduced that on May twentieth, two thousand four, the Costa Rican Office of the Attorney General (Fiscalía General de la República), under the protection of Articles 2, 3, and 4 of the TALM; 62, 65, 154, 180, and 181 of the Criminal Procedure Code and 41 of the Political Constitution, formally requested Mutual Legal Assistance (Asistencia Judicial Recíproca) (Cf. f.14-26 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), before the Costa Rican Office of the Procurator General (Procuraduría General de la República), requesting an investigation into all banking transactions of account No. [Valor 041] with BAC International Bank in Panama, in the name of the company [Nombre01 215]., file number 413986, “…from its opening to date, as well as the account opening file and all documents that have been presented to the Bank by whoever is authorized therein...”(Cf. f.23 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), as well as that instructions be issued to “…the National Banking System of Panama in order for it to indicate if the cited company [Nombre02 215] holds accounts or investments in any Bank, Stock Exchange, or financial entity of any type, and the details thereof. If accounts exist, ALL documentation from the time it was opened is needed…” (Cf. f.24 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018], capital letters belong to the original. Emphasis added). This Body, in accordance with the mechanism devised in the TALM, administratively forwarded the request to the Central Authority of Panama, i.e., the Panamanian Ministry of Government and Justice, not without first stating that: “…If an order from a competent judicial authority is necessary to gather the evidentiary elements, in compliance with the legal system of the Republic of Panama, the pertinent steps are respectfully requested for that purpose, for each of the Banks of the National Banking System of Panama, and especially at BAC Internacional Bank (Panamá Inc.)…” (Cf. f.11 and 27 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. Emphasis added). As part of the rules of Panamanian domestic law, the National Directorate for the Execution of Mutual Legal Assistance Treaties, attached to the Panamanian Ministry of Government and Justice, forwarded, via official letter No. 193-DN-TALM-04, dated June first, two thousand four, the Costa Rican request to the Office of the Procurator General of that Nation, which, in turn, by unnumbered official letter of June ninth, two thousand four (Cf. f.29 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), decided to commission the First Anti-Corruption Prosecutor's Office of the Office of the Procurator General of that Nation in order to gather the evidentiary elements requested by Costa Rica, in reference to account No. [Valor 041] of the company [Nombre 215]. (Cf. f.23 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), that entity establishing, in relevant part, that: “…The undersigned Procurator of the Nation DECIDES: To agree to provide the required assistance within the terms allowed by national legislation, for which purpose the First Anti-Corruption Prosecutor's Office is commissioned” (Cf. f.27 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. Emphasis added). Once the request was known in the mentioned Prosecutor's Office, it was decided to carry out: “…On-Site Technical Inspection (Inspección Técnica Ocular) at BAC INTERNATIONAL BANK (PANAMA INC.), of account No. [Valor 041] of the Company [Nombre 215]., with file number 413986, in order to inspect all checks that have been issued from that account, from its opening to date, as well as the account opening file and all documents that have been presented to the Bank, to know who is or who are authorized therein. The records of the indicated bank accounts are needed from the moment the same was opened, and must include signature cards, documents related to the account opening, general ledger cards, periodic account statements, records of deposits and withdrawals, instructions related to the receipt or transfer of funds to or from the account, whether by fax, email, or any means of communication. Correspondence to, from, or in favor of the account holder(s), memoranda related to the account, cashier's checks and purchase documentation for cashier's checks, balances, closing dates, inactivity, or any other document held for the cited account. All duly authenticated by the bank representatives…” (Cf. f.33-34 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. Capital letters belong to the original). At the same time, that entity appointed an expert with the aim of verifying or ruling out possible irregularities within the Panamanian legal system. The on-site inspection (diligencia de inspección ocular) was carried out on Friday, July thirtieth, two thousand four, in Panamanian territory, by the First Anti-Corruption Prosecutor of the Office of the Procurator of the Nation, Licenciada Cecilia López, who, at the request of the expert Name79, previously appointed for the carrying out of the diligence, seized the following documents: “a) The Account Statements of [Nombre02 215]. No. [Valor 041], from the month of August 2002 to May 2004. b) Account opening application for [Nombre01 215]; cross-communications. c) Copy of money transfer made on April 28, 2004, for the amount of B/.1,060,000.00. d) Copy of deed No. 2,054 of May 1, 2002. f) Copy of checks in the name of [Nombre01 215]…” (Cf. f.49 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. Capital letters belong to the original). Once the information was in the hands of the Panamanian Fiscal Authorities, in strict compliance with the domestic law of that country, it was reviewed by the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, attached to the Ministry of the Presidency of Panama, as cases UAF-04-06-004 [Nombre 215]; UAF-04-06-005 O. Nombre01 R. y Cia. and UAF-04-06-006 Harcourt Holdings S.A., were reported as suspicious. If observed carefully, the procedure followed in Panama was carried out in accordance with the domestic law of that country, since before sending the respective information to Costa Rica, in that Nation the requested accounts were also investigated. Thus, pursuant to Article 2 of the TALM, in the unnumbered report of July fourteenth, two thousand four, from the Financial Analysis Unit for the Prevention of Money Laundering and the Financing of Terrorism, under the Ministry of the Presidency, the officials of that entity corroborated that the alleged offenses for which our country, as the Requesting State, was investigating those companies and the defendants [Nombre01 018] and [Nombre01 225], were also classified as offenses in Panama as the Requested State. Furthermore, the commission of possible criminal actions in that neighboring country was ruled out. Precisely, as a result of the investigations carried out by the Panamanian State, the report sent to Costa Rica determined that: “…One of the clients appears published in a Costa Rican newspaper, where he is mentioned in an investigation for coercion, serious threats, falsification, concealment, and destruction of documents related to the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social)./That the Office of the Attorney General of Costa Rica made a judicial assistance request, issued by the Attorney General of Costa Rica to Panama, regarding those individuals for illicit enrichment (enriquecimiento ilícito), embezzlement (peculado), and others./That these cases have been requested from the UAF, via Official Letter No. 2772 of the First Anti-Corruption Prosecutor's Office of the Office of the Procurator General of the Nation of Panama./In consideration of the point set forth above, we consider that this case has merit to be investigated by the competent authorities…” (Cf. f.134 of Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. Emphasis added). Based on the foregoing conclusions, it is possible to affirm that the referral of the information to the Costa Rican Office of the Procurator General by the Requested State occurred once that Nation had corroborated the requirement of dual criminality of the criminal conducts in both countries, since if that verification had not taken place, under Article 6 of the TALM, Panama as the Requested State would have had the authority to deny the assistance, which is an additional reason to consider that, within the procedure contained in the TALM, the issuance of a judicial resolution that coercively decreed the obtaining of that evidence would have implied, without further reasoning, a flagrant violation of the sovereignty of the Panamanian State and of the powers that Article 6 of the TALM itself grants it as a Signatory State. In short, it is the criterion of the majority of this Chamber that, in the sub judice, for obtaining evidence 588 in Panama, the order or endorsement of a Costa Rican Judge was unnecessary. Therefore, the claim of the Public Prosecutor's Office directed against evidence 588 gathered in Panama via the TALM is granted, and the appealed judgment is annulled insofar as it acquits the defendants [Nombre01 033], [Nombre 006], [Nombre 028], [Nombre 018], [Nombre 041], [Nombre 001], and [Nombre 022]. Consequently, the Court of Criminal Sentencing Appeal (Tribunal de Apelación de Sentencia Penal), with a different composition and in strict compliance with the powers granted in Article 465 of Law 8837, of May third, two thousand ten, must conduct a new comprehensive examination of this evidence together with the remaining evidence of the case.” (The highlighting is from the original). As can be observed, on the occasion of the appeal (recurso de casación) filed by the Public Prosecutor's Office, the Third Chamber resolved the claim that the appellants formulate here, dismissing it. It not only concluded that evidence No. 588 is lawful but also ordered that the ordered remand (reenvío) be carried out on that premise; therefore, this court has no jurisdiction to resolve the point. This is a situation that is not surprising, since under proper appellate technique, the limits of the remand are defined by the reviewing body that orders it. It is important to emphasize that although this decision, as well as others adopted by the Third Chamber, were not set down in the operative part, this in no way relieves these second-instance judges of the obligation to respect them, since the cassation judgment, like any other, is a logical-legal unit that must be understood comprehensively. In addition to this, it is also necessary to add that we are not unaware that the criterion expressed by the Third Chamber in this matter is different from that assumed by that same office (composed of permanent magistrates) in file No. 04-005356-0042-PE, specifically, in resolution No. 499 of 11:45 a.m. on May 11, 2011, in which, by majority vote, the nullity of the evidence gathered in Panama via the Treaty of Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (Name06.), was declared, as well as that of the evidentiary elements deriving from it. However, the contradiction that may arise between the aforementioned judgments, or between this resolution and the aforementioned No. 499, is a problem that eventually, if that were the case, the cited Chamber must resolve, given that what this Court of Criminal Sentencing Appeal is obliged to do is examine the appeals in the terms ordered by the higher body for this specific case, namely, starting from the premise of the legitimacy of evidence No. 588. Having said the foregoing, the undersigned conclude that the other defects claimed in the challenges (which question other additional arguments put forward by the trial court of merit to, despite not having had an order issued by a Costa Rican judge, legitimize evidence No. 588; that is, they are additional reproaches but also related to the questioning of the legitimacy of that same evidence No. 588, and this - it is reiterated - has already been established and declared by the Third Chamber), in light of the criterion expressed by the Cassation Chamber for this case, would be inconsequential, to the point that - even - hypothetically admitting their existence, that which was decided would remain unaltered. The a quo noted that there was no resolution from a national judge that lifted the banking secrecy (secreto bancario) of the account of [Nombre01 215] in the case known as CAJA-Nombre01 and that the same was indispensable (this can be extracted from folios 15,336 and 15,337 recto of volume XXXI). Notwithstanding this, for the majority vote, evidence No. 588 (which is, in essence, documentary evidence related to the mentioned bank account and which arrived in the country in September 2004), is lawful, therefore, the following will be stated: i) [Nombre01 158], in his personal capacity and as the unlimited general attorney-in-fact and sole shareholder of the company [Nombre01 215]., incorporated in Panama, authorized on May 17, 2010, the obtaining and use of the banking documentation obtained in that country corresponding to checking account No. [Valor 041] of BAC International Bank (Panamá) Inc., belonging to his represented party (f. 15,338 recto to 15,372 recto); ii) there is independent evidence prior to No. 588 that also guided the same line of investigation: “See, for example, that according to the journalistic publications of evidence No. 592.9 ‘Monitoring of written press from December 9 to 31, 2004’, folios 1, 5 and 6 to 11, it is through a report by Name49 and Name80, journalists from a nationally circulated print medium, that on April 21, 2004, readers are informed about a house located in [...] that the then Executive President of the Costa Rican Social Security Fund and defendant in this process, [Nombre01 018], was renting from the person who at that time was the financial manager of the Fischel Corporation. Also in the publication of April 27, 2004, from folio 36, evidence No. 682.1, the appearance of [Nombre01 018] before the Congress of the Republic following his resignation as Executive President of the Costa Rican Social Security Fund is disclosed, at which time the accused acknowledged having offered $700,000 to buy the house [...] that had been rented to him by [Nombre01 225], pointing out that in August and October he visited the dwelling which was the only one he and his family liked, a house that was later acquired by the former financial manager of the Fischel Corporation, a participant in the sale of goods and services to the Costa Rican Social Security Fund for millions of dollars, it being indicated on that occasion that the newspaper in charge of disseminating these facts had requested and received from the C.C.S.S. information pertaining to the various contracts described. The foregoing is important because, according to the request on folios 14 to 28 of evidence No. 588, the Prosecutor's Office sought said information before the Office of the Procurator General of the Republic on May 20, 2004 - according to the seal on folio 2 - and the banking documentation related to the account of [Nombre01 215]. was received by the Prosecutor's Office on September 10, 2004, clearly showing the existence of two independent sources of evidence prior to that investigative action by the Public Prosecutor's Office. Note that the revelation of the facts based on the original journalistic report and subsequent publications, according to evidence No. 529.9 and No. 682.1, dates back to April 2004, that is, more than a month before the Prosecutor's Office took the initiative to collect the banking information described, such that it could even be stated, without room for error, that it was the disclosures in the national press that triggered the judicial investigation of the well-known Caja-Fischel case. On the other hand, the defense also questions the request and the order to lift the banking secrecy issued by the criminal judge regarding the bank account of [Nombre 058].

in the Cuscatlán Bank and the authorization of [Nombre01 028] and [Nombre01 221] to obtain information from said account, topics that have already been analyzed and that, for this reason, are now only brought up to address the allegation that this evidence is also illicit—according to the defense—because it is dependent on the banking documentation of the account of [Nombre01 215]. Once again, it must be pointed out that, in the opinion of this panel, the banking documentation that makes up evidence No. 588 is lawful, but, through an intellectual exercise aimed at guaranteeing the rights of the accused and due process, hypothetically assuming that the collection of evidence No. 588 did not involve the lifting of bank secrecy ordered by a jurisdictional body and that there was neither legal nor valid authorization from the account holder or its administrator for obtaining and using such documentation, there still exist sources prior to and independent of that information. As explained earlier, the data revealed by the national press initiated the prosecutorial investigation in the aforementioned "Caja Fischel" case, and a similar conclusion is applicable in the scenario now being assessed. The prosecutor's office's requests for lifting the bank secrecy of the account of [Nombre01 058] in the various financial entities that make up the Cuscatlán Group are dated September 17 and 29, 2004. The rulings granting them date from September 21 and 29, 2004, and the requested banking information was delivered to the prosecuting body on September 28 and 29, 2004, according to notes on pages 5 and 90 of Volume I. However, before the Prosecutor's Office learned of the requested data, national media outlets were already revealing details about [Nombre01 058] and his connection to [Nombre01 091] and directors of the Instituto Costarricense de Electricidad. Note that the report by journalists Nombre09 and Nombre03, page 19 of evidence No. 592.1, although published on September 28, 2004, in a national circulation medium, the information had been gathered since the previous day, that is, September 27, 2004. The news story reports that two ICE directors had received $3.6 million that came from [Nombre02 060], indicating money transfers to [Nombre01 064] and to [Nombre 022] through the latter's company [Nombre01 300] and the second's wife, Mrs. [Nombre02 080]. It was stated that the funds were transferred from the account that [Nombre 058] held in Cuscatlán International Bank and that he had received such money from the account of [Nombre01 060] with ABN AMRO Bank. It was also mentioned that representatives of the journalistic medium, on September 27, had contacted [Nombre01 080] by phone at her home and she had told them she would give information later, although she subsequently did not answer their calls, while [Nombre01 064] did not respond to messages and [Nombre01 022] explained that he had hearing problems, with an attempt also being made—unsuccessfully—to consult [Nombre01 041], although communication did occur with [Nombre01 095] and with [Nombre01 028]. It was reported that from the account of [Nombre 058], payments had been made to companies, individuals, and politicians, citing the transfer of $100,000 to [Nombre 213], who explained that it was a donation from [Nombre02 091] to the political campaign of president Nombre81; reference was also made there to money received by [Nombre01 063] that passed through the account of [Nombre 215] of the president of Corporación Nombre01[158] and to other people consulted by the journalists. On page 20 of evidence No. 592.1 (whose originals appear attached to pages 2 and 3 of Volume I), there also appears the publication of the journalistic interview conducted that same day with [ombre01 213], who acknowledged having received the contribution from [ombre01 091] to Nombre81's campaign after a meeting in which the accused [ombre01 041], manager of said company, and a "French gentleman" whose name he told the journalists he did not remember, had been present. On the other hand, at that moment, what the described banking documentation reveals are the transfers from [ombre01 060] to [ombre01 058], but not its detailed analysis, which is possible much later with the intervention and study of the experts from the Accounting and Financial Studies Section of the OIJ. Hence, it cannot be dismissed that in the interim, that is, while the banking data mark new paths in the investigation and its concordance with each of those involved, other revealing sources of information also emerge independently of the cited source No. 588. There are multiple elements that could be cited, but suffice for example:

- all the information gathered from the declarants [Nombre02 116] and [Nombre01 164], employees of Corporación [Nombre02 091], who recount meetings held with the accused [Nombre02 041] in early October 2004 following the journalistic revelations linking [Nombre01 091] with payments to public officials and how, in the second meeting they held with [Nombre01 041], upon asking him about what the newspapers reported (regarding payments to [Nombre01 274], sister of [Nombre01 041], to a son of this lady, and to [Nombre01 001], by [Nombre01 058], all with the intervention of [Nombre01 041]), he accepted having participated in such payments and told them about 4 people to whom they had been made, namely: [Nombre01 022], [Nombre01 001], [Nombre01 064], and [Nombre01 018], the last of whom had not even been mentioned in the journalistic reports; - evidence No. 110 consisting of the authorizations that, as of September 20, 2004, both Mrs. [Nombre02 221] and the accused [Nombre01 028] had addressed to Grupo Financiero Cuscatlán de Costa Rica S.Nombre46. and to Cuscatlan International Bank and Trust Co Ltd., stating that, irrevocably and unlimitedly, they authorized the supply of any type of information and/or documentation that any of the supervisory authorities of the national banking system or Costa Rican judicial authorities have requested or may request in the future regarding the operations of [Nombre02 058], so this would also be an independent and prior means for obtaining the described banking documentation; - the documentation provided by Corporación [Nombre 060], among others evidence No. 19 to No. 22, No. 23, No. 24, No. 25, No. 26, No. 27, No. 28, No. 29, No. 30, No. 31, No. 32, No. 33, No. 34, No. 35, No. 36, No. 36, No. 37, No. 38, No. 39, No. 40, No. 41, No. 42, No. 67, No. 69, No. 71, No. 74, and No. 75, the latter referring to the reports sent by [Nombre02 114] and by [Nombre 058] in relation to the consultancy contracts; Nombre02 as that which was seized at the company [Nombre 091]: No. 55, No. 57, No. 59, No. 80, No. 81, and No. 630; - the statements of witnesses such as [Nombre01 173] and Nombre01, who not only supply information related to the facts to the Prosecutor's Office but also provide documentation that is later used as evidence by that representation, among others: No. 267 and No. 404; - the documentation seized at the facilities of the Instituto Costarricense de Electricidad: No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7, No. 8, No. 9, No. 10, No. 11, No. 17, and No. 19, or requested from other government agencies: No. 15, No. 16, No. 82, No. 85.

In conclusion, even though for this court there is absolute certainty that evidence No. 588 is lawful and only this verification would give rise to the rejection of the protest, going further and based on a hypothetical exercise in which such a source is assumed to be spurious, the truth is that the petition made by the defense would not be appropriate either because there are independent sources prior to the banking disclosure that is branded as illicit, both with respect to those of the "Caja-Fischel" case and those of interest here." (F. 15,377 to 15,381 front, underlining is from the original); iii) in this case, evidence No. 588 gathered in another proceeding constitutes, in addition to evidence, a notitia criminis. The connection of [Nombre01 018] to the case c.c. Caja-Nombre01 came to light through a journalistic investigation made public in April 2003, one month before the banking documentation was requested from Panama. The evidence was requested to clarify the purchase of a [...], as well as the relationship between [Nombre01 018], [Nombre01 225], the C.Nombre82, and the company Fischel. This information reached the Prosecutor's Office on September 10, 2004. Now, finding in that process and particularly in that documentation evidence of deposits from SNQC S.A. to the account of [Nombre01 215] was a casual finding, because what was sought was information pertaining to the relationship between the C.C.S.S., the Fischel corporation/ [Nombre 215], and [Nombre01 018]. In that regard, the majority opinion says, regarding SNQC S.A., evidence No. 588 is a notitia criminis (f. 15,381 to 15,383 front). iv) Based on the legitimate investigations that were being carried out, it was unavoidable and/or certain that the connections between [Nombre01 060], [Nombre01 058], and the I.C.E. would be discovered (F. 15,387 to 15,393 front). As already stated earlier, the appellants understand that the previous reasonings are not legitimate. In this regard, they argue that the consent of [Nombre01 158] given years after the evidence was gathered does not eliminate the fact that the information was collected without having a judicial order lifting bank secrecy. Similarly, the challengers say, the evidence cited by the trial court as autonomous and subsequent to No. 588 is not such, to the point that without it, the case would not have been initiated. The same applies to what the a quo considered as inevitable or casual findings in the CAJA-Nombre01 case and which do not have such character, or regarding the consideration of evidence No. 588 as a notitia criminis as far as this proceeding is concerned. These are arguments formulated unsuccessfully to endow with legality an evidence that, from its origins, presents an absolute defect that cannot be corrected, namely, having been obtained without the endorsement of a Costa Rican judge. After examining the aforementioned, this Sentencing Criminal Appeals Court concludes that, even assuming that the reasonings expounded by the majority opinion are not acceptable, these are arguments that were intended to legitimize evidence that, without said correctives, for the trial court was illicit because it was obtained without a jurisdictional order. However, given that the Third Chamber concluded that said order was unnecessary, all those reasonings and the errors they may contain lose relevance, to the point that they could well be hypothetically removed without this implying a modification of what was agreed upon. As a consequence of the foregoing, the defense's questioning of them would also be inconsequential. In other words, and by way of example, based on the criterion established for this case by the Cassation Chamber, evidence No. 588 is not lawful because [Nombre01 158], years later, endorsed the use of the information; because there was independent and autonomous evidence to No. 588 that also directed the investigations towards [Nombre01 058]; or because the role of the cited corporation was a casual or inevitable finding. All of these are highly debatable arguments. It is lawful, according to the Third Chamber, because, in the case of evidence that would be gathered in Panama under the T.A.L.M., a ruling by a national judge lifting bank secrecy was unnecessary. Therefore, all the other arguments invoked by the majority opinion to legitimize the evidence, which—it is reiterated—it had to resort to because it considered it illicit given the absence of a jurisdictional order, lose significance. Finally, regarding the document that [Nombre01 158] presented to this court on August 27, 2015 (cf. 176.925 front, volume XLIV), in which he expressed his will to revoke the consent he had given for the banking information of the company [Nombre01 215] to be used in this proceeding, it is enough to underline that the decision of the Third Chamber, in the sense of considering evidence No. 588 legitimate, did not rely on that consent, but on the conclusion that the order of a national judge was unnecessary in the case of evidence to be obtained in Panama. For the foregoing reason, it is as inconsequential that the a quo appealed to that argument to legitimize the referred evidence, as it is that [Nombre01 158], with his revocation, intended to strip it of all value. Therefore, the objections raised by attorney Wilson Flores Fallas, defender of [Nombre01 006], and by the defendants [Nombre01 001], [Nombre01 028], [Nombre01 041], and [Nombre01 018], in their personal capacity, are declared without merit.

XXIII.- Cassation appeal filed by [Nombre01 001], [Nombre01 028], [Nombre01 041], and [Nombre01 018], in their personal capacity. Sole ground. Violation of Article 369, subsection j) C.P.P. Seventh point. The aim is to validate the evidence obtained through the lifting of bank secrecy of the account of [Nombre 058] at the Cuscatlán Bank in the Bahamas, by means of an authorization from [Nombre01 028] that is read erroneously. According to the appellants, the authorization analyzed on page 887 (numbering of the judgment) was wrongly interpreted. The five notes signed by [Nombre01 028] and [Nombre01 221], by which they authorize the delivery of information related to the company [Nombre 058] to AUTHORITIES THAT SUPERVISE THE NATIONAL BANKING SYSTEM OR TO THE BANKS IN THE BAHAMAS OR JUDICIAL AUTHORITIES OF COSTA RICA (evidence No. 110), say something different from what the court considers: "It does not authorize delivery to the Prosecutor's Office without a Judge's order, since that body is not a judicial authority. Therefore, when this lifting of bank secrecy of the accounts of [Nombre01 058] at the Cuscatlán Bank is analyzed, both at the Cuscatlán International Bank in the Bahamas and in those belonging to the national banking system, it is necessary to bear this note in mind, with its considerations and limitations: judicial authorities, not the Prosecutor's Office. The entire chronology of said delivery of information appears from page 890 to 889 and can be easily read. The first bank secrecy lifting order DOES NOT INCLUDE NEITHER THE GRUPO FINANCIERO CUSCATLÁN NOR THE CUSCATLÁN INTERNATIONAL BANK, which can easily be concluded on page 883 and from the reading of Pages 3841 to 3858 of the case file, which contain the judicial order of Judge Vargas Bonilla. The order refers to the lifting of the bank secrecy of the accounts of [Nombre01 058] in the entities of the National Banking System, evidently not including the Cuscatlán International Bank, not only because it does not belong to said System, but because a few days later, by judicial order, this lifting was extended. The order of September 21 is fulfilled by Mr. [Nombre01 229] on September 27 and 28, as indicated on the same Page 883 of the judgment and is recorded on pages 6 to 13, 15 to 79, and 82 to 89 of Volume I of the main file, from which it is observed that the referred Mr. [Nombre01 229] oversteps the judicial order received and sends information from the Cuscatlán International Bank, an entity not included in the order which did not cover either that entity or the Grupo Financiero Cuscatlán, as will be seen. It is on Page 6 that the presence of [Nombre01 091] is first recorded in the case, through the transfers allegedly sent by her to [Nombre01 058]. This evidence was obtained illegally, since there was no judicial order covering the accounts of [Nombre01 058] in that international banking entity, there was no authorization from [Nombre01 028] or from [Nombre01 221] to deliver information without a Judge's order, which did not exist, and there was not even a request to lift the bank secrecy of the Grupo Financiero Cuscatlán. Therefore, it is false that this documentation was supplied with a Judge's order or with the authorization of the company owning the account, and its content and scope become illegal and must be excluded from the files and completely removed from the judgment and its assessment. Furthermore, it is by order of Judge Nombre60 on September 29 that the lifting of bank secrecy in the Grupo Financiero Cuscatlán is ordered, and not before, which is recorded on pages 3829 to 3839 of Volume IX and the judgment refers to on Page 880. By that date, Mr. [Nombre01 229] had already illegally sent, without a Judge's order or the account holder's authorization, the information related to the operations of [Nombre01 058] at the Cuscatlan International Bank, which generates its invalidity and necessary exclusion from the process. It is clear that in the face of this illegal send, the Prosecutor's Office rushed a day later to rectify Mr. [Nombre01 229]'s error, which is understandable on their part, but the complacent attitude of the majority judges in endorsing the use of this spurious and illegal evidence can never be admitted..." (F. 17,276 and 17,277 front).

XXIV.- The appellants are not correct: According to what was demonstrated, [Nombre01 028] was responsible for receiving the money coming from [Nombre02 060] in the current account number [Valor 012] of [Nombre 058] with the Cuscatlan International Bank & Trust Co. Ltd. Once with such funds at his disposal, he was to proceed to instruct the indicated bank to carry out the distribution of the money. For the defense, the information obtained in relation to the mentioned account is illegitimate, because: i) as deduced from the authorizations given by the account holders ([Nombre01 028] and [Nombre01 221], evidence No. 110), the authorization was issued to deliver information to the authorities that supervise the national banking system or to the banks in the Bahamas, or to the judicial authorities in Costa Rica, and not to the prosecutor's office, which is not a judicial body; ii) the first bank secrecy lifting order did not include the Grupo Financiero Cuscatlán nor the Cuscatlán International Bank, but only the national banking system, and it was only later that it was extended. That order was fulfilled by [Nombre01 229], a person who overstepped his bounds, because he sent information from the Cuscatlán International Bank. Therefore, it is false that the documentation was supplied with a judge's order and with the authorization of the account holders; iii) it is with the order of Judge Nombre60, dated September 29, that the lifting of bank secrecy in the Grupo Financiero Cuscatlán was ordered. However, by that date, [Nombre01 229] had already sent all the information generated by the Cuscatlan International Bank. In these claims, the challengers are not correct. As is well explained in the appealed judgment, specifically from page 15,244 to 15,255 front of volume XXXI and from page 15,665 to 15,669 front of volume XXXII, which this chamber confirmed upon studying evidence No. 110, a folder labeled "Banco Cuscatlán [Nombre01 058] Documentos Acta 370849 Folios 216 (8 folios)", in this folder there are two notes signed by [Nombre02 221], dated September 20, 2004. One is addressed to Grupo Financiero Cuscatlán Costa Rica S.Nombre46. and the other to Cuscatlan International Bank & Trust Co. Ltd., in the Bahamas. In both, this person authorizes "... irrevocably and unlimitedly, so that they may supply any type of information and/or documentation that any of the authorities that supervise the National Banking System or judicial authorities of the Republic of Costa Rica have requested or may request in the future, in relation to any of the operations, both active and passive, that [Nombre02 058] has maintained...". In the note addressed to Grupo Financiero Cuscatlán de Costa Rica S.A., Mrs. [Nombre02 221] adds the following: "...that [Nombre 058] has maintained, ... with the subsidiary companies of Grupo Financiero Cuscatlán de Costa Rica S.A., including Cuscatlan International Bank & Trust Co Ltd., domiciled in the Bahamas." Similarly, in the note sent to Cuscatlan International Bank & Trust Co Ltd., she added: "...that [Nombre02 058] has maintained,... with Cuscatlan International Bank & Trust Co Ltd., domiciled in the Bahamas, a company that forms part of Grupo Financiero Cuscatlán de Costa Rica, S.A." (cf. pages 3 and 4 front). The same can be said regarding [Nombre01 028], since in the same folder, on f. 5 and 6 front, two authorizations signed by him in the same terms as stated are observed, and which were likewise sent on September 20, 2004. Now, on page 7 front, another note signed by [Nombre01 028], dated September 21, addressed to Cuscatlan International Bank & Trust Co Ltd., is observed, in which he authorizes, "... irrevocably and unlimitedly, so that they may supply any type of information and/or documentation that any of the authorities that supervise the National Banking System or judicial authorities of the Republic of the Bahamas have requested or may request in the future, in relation to any of the operations, both active and passive, that [Nombre01 058] has maintained... with Cuscatlan International Bank & Trust Co Ltd., domiciled (sic) in the Bahamas, a company that forms part of Grupo Financiero Cuscatlán de Costa Rica, S.A." (F. 7 front). In addition to these authorizations, we have that at the request of the Public Prosecutor's Office, the lifting of bank secrecy was ordered at 4:40 p.m. on September 21, 2004, for several legal entities, among which is [Nombre01 058]. Banco Cuscatlán and Cuscatlán Puesto de Bolsa were ordered to deliver the information on the movements of the corporation [Nombre01 058] (thus, f. 3,863, volume IX). Subsequently, at 8:12 a.m. on September 29, 2004, the Juzgado Penal del Segundo Circuito Judicial de San José ordered the lifting of the secrecy of banking and stock market information related to each and every one of the financial entities that make up the Grupo Financiero Cuscatlán (cf. f. 3,839 front). The appellants say that [Nombre01 229], then secretary of the board of directors of Grupo Financiero Cuscatlán de Costa Rica S.A., sent the information from the Cuscatlan International Bank & Trust Co.

Limited even though in the judicial order issued days earlier, the bank secrecy was not lifted for that particular bank, or for the entire Cuscatlán Financial Group, and, therefore, the a quo erred in concluding that such action was covered by the cited order. Likewise, according to the appellants, it cannot be argued that the information was obtained under an authorization from the account holders, since they only authorized providing the information to the judicial authorities and the Public Prosecutor's Office is not one of them. These are claims that this chamber finds unacceptable, for several reasons. The first, because even if it is admitted that Mr. [Nombre01 229] sent, on September 28, 2004, information on the transfers of funds abroad made by [Nombre02 058] through the international department of Banco Cuscatlán de Costa Rica S.A., as well as on the international transfers received in the current account of [Nombre01 058] through Cuscatlan International Bank & Trust Co. Limited, given that the judicial order issued days earlier only covered Banco Cuscatlán and Cuscatlán Puesto de Bolsa, it is undeniable that the referenced data would have been inevitably discovered, based on the investigations being carried out up to that point. Note that by that date, there was a judicial order requiring Banco Cuscatlán to provide all existing information regarding the movements made by the company [Nombre01 058] through it. Furthermore, there were several authorizations signed days earlier by the accused [Nombre01 028] himself and by his wife, [Nombre 221], addressed to Grupo Financiero Cuscatlán Costa Rica S.A. and to Cuscatlan International Bank & Trust Co. Ltd., so that all information and documentation on transactions in which said corporation was involved would be provided to the judicial authorities. In this way, the requesting body was already fully aware that the transactions made by [Nombre01 058] occurred under the umbrella of that financial conglomerate and that Cuscatlan International Bank & Trust Co. Ltd. was part of it. That is, even if it is hypothetically admitted (and the hypothetical nature of the situation is underlined) that [Nombre01 229], at first, sent information not covered by the lifting of bank secrecy ordered on September 21, 2004, the defect would not lead to the exclusion of the mentioned evidence, since by reason of the same authorizations issued by the holders, as well as the progress of the investigations themselves, which by then, in addition to pointing to the company [Nombre02 058] as involved in potentially criminal acts, accounted for the fact that said corporation had operations with Banco Cuscatlán, it is unquestionable that the data handled by Grupo Financiero Cuscatlán Costa Rica S.A., to which that bank belongs, as well as Cuscatlan International Bank & Trust Co. Ltd., would be discovered. On the other hand, all the banking movements carried out by order of [Nombre01 028] took place in Costa Rica, with which, by requesting information from Banco Cuscatlán on the transactions carried out by the corporation [Nombre01 058] through it (a point that was expressly covered in the first order issued by the corresponding jurisdictional authority), the operations carried out by that corporation under the direct correspondent contract that Cuscatlan International Bank and Trust Co. Ltd. maintained with Banco Cuscatlán de Costa Rica S.A. were also covered. In the third place, this chamber considers reasonable what was indicated by the trial court, namely, that the documentation delivered by [Nombre01 229] on September 28, in response to the order lifting bank secrecy issued on September 21, 2004 by Judge Damaris Vargas Bonilla (an order that was notified that same day at the main offices of Banco Cuscatlán, cf. folio 3,869 of volume IX), was in the country, at the disposal of this company, since the operations were carried out in national territory and, as has been pointed out, the financial group had its headquarters in Costa Rica at the time, such that it could not be affirmed, or not without speculating, that it was obtained from other banking entities in an irregular manner. Finally, this court also does not consider that the authorizations issued by [Nombre01 028] and [Nombre01 221] were erroneously interpreted. Note that these endorse that the country's judicial authorities become apprised of all the information related to the transactions made by [Nombre02 058] that is in the possession of Grupo Financiero Cuscatlán de Costa Rica S.A., as well as of Cuscatlan International Bank and Trust Co. Ltd., which is precisely what happened here. The information provided on September 28, 2004, questioned by the appellants on the understanding that the order lifting bank secrecy did not cover the financial group and within it, Cuscatlan International Bank and Trust Co. Ltd., was sent by [Nombre01 229] in response to the judicial order issued by Judge Vargas Bonilla. So much so that in the document on folio 5 front of volume I, the recipients listed are both the Deputy Prosecutor's Office for Economic, Corruption, and Tax Crimes and the Criminal Court of the Second Judicial Circuit of San José. That is, even though the authorization from the holders of the fundamental right would have been sufficient to proceed to collect the information without a judicial order, in this particular case, the cited order was issued, and if the information was sent, it was as a consequence of it, and to that extent, it was also a jurisdictional authority that became apprised of its content, fulfilling what was provided in the same authorization given by [Nombre01 028] and [Nombre01 221]. For the foregoing reasons, the ground is dismissed.

**XXV.- Appeal on cassation filed by attorney José Miguel Villalobos Umaña, private defense counsel for [Nombre01 018]** and appeal against the sentence (thus converted) filed by the accused [Nombre01 018] personally, authenticated by attorney Hugo Santamaría Lamicq. In the brief visible from folios 17,241 to 17,263 front of volume XXXVI, attorney José Miguel Villalobos Umaña, defense counsel for [Nombre01 018], filed an appeal on cassation against sentence No. 167-2011, mentioned many times. Subsequently, by means of a brief visible at folios 172,745 to 172,767 front of volume XXXIX, the accused [Nombre01 018], personally, proceeded to convert the filed appeal on cassation into an appeal against the sentence, maintaining its content. Therefore, they are proceeded to be resolved jointly, not without first warning that the textual quotes that will be made below correspond to the second. **First ground. 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.** The court concluded in a majority vote that the criminal action against [Nombre01 018] was not time-barred. In contrast, Judge Camacho Morales upheld the exception. For the appellant, the substantive issue relates to the application of article 62 of Law No. 8422 of October 6, 2004, named 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 No. 212 of that day. According to the court itself, if it were not for that norm, the case would already be time-barred, so the appeal is aimed at questioning this interpretation, which incorrectly applies the statute of limitation rules of the procedural law and of the LCC itself, as well as some rulings of the Constitutional Chamber that are binding. The sentence states that since the statute of limitations period is not reduced by half, as established in article 33, first paragraph of the Code of Criminal Procedure, because the provisions of numeral 62 of the LCC are applied, the criminal action would prescribe on November 30, 2007, and not on May 30, 2006. Therefore, it is considered vital to establish whether the cited article 62 is applicable in this matter, since if it is not, the criminal action would be time-barred. The trial court says it does not share the defense's thesis, in the sense that this is a reduction of time limits to control the duration of the process and not a statute of limitations issue. This is important, because if it is the former, the acquired rights of the accused must be respected. The control of the duration of the process is a fundamental rights issue, deriving from article 41 of the Political Constitution, insofar as it contemplates swift justice. However, increasing the duration time limits of the process to the detriment of the accused is synonymous with applying the law retroactively to the detriment of the acquired rights of the justiciable parties. The defense's position rests on what was stated in judgment No. 4397-99 of the Constitutional Chamber, issued at 4:06 p.m. on June 8, 1999, which in its Considerando VI states that "THESE TERMS are not properly statute of limitations, but rather reduction of the time limits for the processing of the procedure according to the idea of controlling its duration…" (F. 172,747 front). The same was indicated in resolution No. 428-00. That is, if they are norms relating to the control of the duration of the process, they cannot be applied to the detriment of the accused, as they affect their acquired rights. But regardless of the foregoing, in the event of disagreeing with this thesis and deciding that we are facing statute of limitations norms and that, therefore, they can be applied retroactively, the Constitutional Chamber has said that there must be an express norm authorizing that retroactive application. Therefore, the point to consider is whether that provision was given in article 62 LCC. To define the above, the first thing to consider is judgment No. 4397-99 of the Constitutional Chamber, which, in what is relevant, indicates: "… THE NORMS CANNOT GOVERN PAST ACTS… EVENTUALLY, PAST CONDUCT MAY BE ASSESSED WITH A RULE ENACTED SUBSEQUENTLY, A JUDGMENT THAT IS SUBJECT TO A REGULATED POWER… IT ONLY PROCEEDS BY EXPRESS MANDATE OF THE LAW… IN CRIMINAL PROCEDURAL MATTERS, IT IS NOT PROHIBITED FOR THE LAW TO BE APPLIED RETROACTIVELY, AS THE LAW ITSELF ESTABLISHES, ONLY WITH RESPECT TO PENDING CASES…" (F. 172,747 front). The Chamber alludes to all types of norms and not just substantive ones, since the considerando where the topic is addressed is called "On the application of procedural law." That is, if there is no express provision that allows applying norms not in force at the time of the acts being judged, such application would not be possible. Now, the court accepts that the application of article 62 to acts occurring before its entry into force depends on a legislative authorization, an authorization that the a quo believes exists. In this regard, the appeal explains: "… Let us then analyze the interpretation of the Court in its majority vote. At Folio 796, the Judges affirm that Article 62, although actually due to an excusable error they consider it to be 60, does contain the prerequisite that this Defense misses. They affirm that the legislator made reference generically to all processes in which crimes against the duties of public office are charged and point out that this was done WITHOUT DISTINGUISHING BETWEEN CRIMES FOR PENDING CASES OR THOSE OF FUTURE INITIATION. That is precisely the error of the Judges. There is no express provision, as required by the Chamber, so they resort to the expedient of considering that there is no express exclusion, when the reasoning is the opposite: If there is no express provision, the norms of Article 62 cannot be applied to pending cases but exclusively to those of future initiation after October 29, the date Law 8422 was published. It is not a matter of indicating that since application to previously initiated cases is not excluded, it is possible: the constitutional rule established by the Chamber is the inverse; if there is no express provision, that interpretation is not possible. The Judges admit that there is no express provision, but rather no express exclusion, which is not the same, but rather the opposite, evidencing the argumentative error of the majority. It is false that the legislator specified that this non-reducing provision of the statute of limitations period by half would apply to pending cases; what the legislator did was precisely not indicate it, which, instead of presuming its provision, demonstrates its non-provision, and in the face of it, one can only deduce that Article 62 of the LCC only governs future cases from October 29 onwards and not those initiated before that entry into force, like this one. It is not a matter of arguing that the legislator did not distinguish between pending and future cases; rather, it must be concluded that if it had wanted that numeral 62 and its provisions to apply to pending cases, such as the one that concerns us, it should have so indicated, in accordance with the binding provisions of the Constitutional Chamber already indicated. If that numeral 62 is read objectively, it is observed that even its wording is of a future nature, as corresponds: THE CRIMINAL ACTION REGARDING THE CRIMES... SHALL PRESCRIBE…THE FOLLOWING RULES SHALL GOVERN… Thus, it only indicates that they apply to future cases and not to pending cases, and by not doing so, it is not possible to amend the legislator even if the Judges wish to do so for motivations that this defense does not know, but intuits. Note that there is no transitory provision to Article 62 neither at the end of the norm nor in the Transitory Provisions of the Law itself, which has two, not including the one the Judges shamelessly invent. If we compare what the legislator did when it approved the Code of Criminal Procedure, when it expressly indicated which new provisions applied to processes in progress, we can understand the binding constitutional interpretation of the Chamber that these Judges seek to omit and disobey …" (F. 172,748 to 172,749 front, the transcription is literal). In this particular case, [Nombre01 018] gave his statement after October 29. However, as the case was initiated before that date, the mentioned article 62 was not applicable to him, except by express legislative norm, which does not exist. The claimed prescription occurred as of May 30, 2006, before the finality of the declaration of complex processing of this case, which occurred in July of that year, or the scheduling of the preliminary hearing, both acts subsequent to the moment when the statute of limitations took effect and which, therefore, cannot have interruptive effects to the detriment of the accused [Nombre01 018].

**XXVI.- The ground is dismissed.** As we explained from the first considerandos of this resolution, the issue of the statute of limitations was expressly settled by the Third Chamber, concluding that the criminal action has not prescribed in the particular case of [Nombre01 018] and that the ordered remand must proceed from that basis. It is a decision that, in any case, this chamber shares, understanding that at the time [Nombre01 018] was questioned (namely, November 30, 2004), article 62 of Law No. 8422, Law against corruption and illicit enrichment in public office, published in La Gaceta No. 212 of October 29, 2004, was already in force, according to which, with the interrupting act, the computation of the statute of limitations period began anew completely, without any reduction. The appellant says that the cited law cannot be applied to cases which, like the present one, were already underway by October 29, 2004. This is an unacceptable position, since dealing with norms of a procedural or instrumental nature (and the Constitutional Chamber has said that statute of limitations rules have that character), these govern immediately and forward, so it will suffice that the procedural act provided for in those rules is carried out during their validity for their effects to be applied, regardless of whether the procedure within which that act takes place was already underway. It is important to note that what is proscribed by art. 34 of the Political Constitution is that norms take effect retroactively to the detriment of any person, and not that they do so from their entry into force and forward, as is the case here. In summary, if procedural acts, at least as a matter of principle, are governed by the regulations in force at the time of their execution, the questioning statements made after October 29, 2004, including that of the accused [Nombre01 018], are subject to the provisions of the mentioned article 62. In line with the foregoing, this chamber concluded in considerando VI.-, to which the appellant must refer, that regarding the accused who gave questioning statements before this date ([Nombre01 033], [Nombre01 001] and [Nombre01 022]), the reducing effect of the statute of limitations period that art. 33 subsection a) C.P.P. associates with that procedural act cannot be suppressed by invoking the cited numeral 62, since it was not in force at the time and cannot be applied retroactively, pretending that its effects are associated with procedural acts carried out under and with the consequences provided for in a different regulation. For the foregoing reasons, the ground is dismissed.

**XXVII.-** Given the existing relationship, this chamber will jointly resolve the second and third grounds of the challenges. **Second ground. Erroneous application of the norms concerning the lifting of bank secrecy without a judicial order for the respective case, with violation of articles 24 of the Political Constitution; 615 of the Code of Commerce; 1, 2 and 3 of Law No. 7425, of August 9, 1994, Law on seizure, search and examination of private documents and intervention of communications.** The defense opposed the bank evidence from Banco San José, in the Bahamas, required in the Caja-Nombre01 case and admitted as evidentiary material in this matter (evidences 543, 544 and 545), on the understanding that it had been requested exclusively for the case called Caja-Nombre01 and not for this process and, furthermore, that there was an "alteration of translations" of documents by the Public Prosecutor's Office. With this evidence, the intention was to verify the receipt of certificates of deposit by [Nombre01 018] with resources coming from funds from [Nombre01 091] and [Nombre 058], which were deposited in BAC Bahamas Bank Limited in that country. The court stated that the evidence comes from Banco de San José in the Bahamas. That is false. It is not 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 vote maliciously attempts to imply. It suffices to read the evidence to appreciate that they are two different banks and not a simple branch. The foregoing is also confirmed considering that the Prosecutor's Office required a judge's order to send the letter rogatory to the Bahamas, to request the bank evidence. If it had been the same Banco de San José, it would have sufficed to ask for the information from BAC San José in Costa Rica. Although the evidence comes from the Caja-Fischel case, the judges consider (see f. 873 to 875) that an express judicial order to use it in this process was not necessary. According to the judgment, a judicial order in any criminal case is sufficient for it to be used in another, a position that the court had assumed, with the defense's protest, since May 14, 2010. The appellant explains, referring to the questioned judgment: "… The Judges write as follows: Hence, the sources of evidence identified based on the stated actions may be used in the criminal processes in which they are required, since the described norm does not restrict their use to a specific investigation insofar as it does not indicate that they can be used for the clarification of a criminal matter in the singular but of several criminal matters in the plural..." (Folio 874)." (F. 172,750 front). This argument, it is indicated in the appeal, is questionable: "Thus, they interpret that although that evidence from the Bahamas was obtained through a judicial order issued within the CCSS-Fischel case, both being criminal matters, it could and in fact was used in the case [Nombre64 091], because both are criminal cases. This thesis does not withstand the slightest analysis. First, because it is only a suspiciously grammatical argument and with an absolute omission of legal criteria. Let us see. They simply say that since the law indicates that the seizure, search or examination of private documents can be ordered to clarify MATTERS submitted to the knowledge of criminal Judges, that documentation can be used for any cause of that criminal nature. The Judges omit indicating that this norm has a constitutional context in Article 24 and that the pluralization of the noun MATTERS is not with the meaning that it can be used in any of them, but because the constitutional text refers to THE COURTS OF JUSTICE, thus, in the plural, may order the seizure, search and examination of private documents, when it is absolutely indispensable to clarify matters submitted to THEIR KNOWLEDGE. It concerns matters in the plural because it refers to the Courts in the plural, not as the Judges want to read it in terms of a specific Court being able to order the seizure of documents for any case, the specific one it hears and others future or past, without limit of time, competence or matter, provided it is criminal in nature, under the terms of Article 2 of Law 7425. What the Constituent and the legislator mean and say is that each criminal Judge can order the seizure, search and examination of private documents to investigate the matters before them, not any matter, even if it is not the specific one at hand. And this is so because the Constitution also requires that this order can only be issued when IT IS ABSOLUTELY INDISPENSABLE, that is, a case-by-case analysis is required, request by request and cause by cause, since if it is interpreted that the lifting of privacy is for any cause, that exceptional analysis (ABSOLUTELY INDISPENSABLE) would not be carried out for other causes that are not even known. The Judges' thesis would lead to deconstitutionalizing the guarantee of Article 24, since the required analysis would not be carried out for other causes, the privacy of documents disappears with the first order, without the need for judicial control in the future for the accused …" (F. 172,750 and 172,751 front). The court's criterion would lead to requiring only one judicial order to lift bank secrecy in a determined case, and from then on, that secrecy will disappear for any other case. It opens the possibility of using the information obtained in the future, in any process, whether prior or subsequent, even in relation to events that have not occurred and without jurisdictional control in those cases. Furthermore, if the court's limited grammatical thesis is followed, the truth is that Law No. 7425 itself, in its article 2, uses another wording, by saying that the Judge may order "THE SEIZURE, SEARCH OR EXAMINATION OF ANY PRIVATE DOCUMENT, WHEN IT CAN SERVE AS INDISPENSABLE EVIDENCE OF THE COMMISSION OF SOME CRIMINAL CONDUCT, in the singular, not in the plural, and even less for any cause, even one that has not yet arisen..." (F. 172,751 front). For the appellant, the precedents of the Third Chamber only endorse the use of evidence arising from the lifting of bank secrecy in the specific case. Even though the use of evidence in cases different from the one in which it was obtained has been permitted, this has not been the case with bank information, because the protection of the administered party against the administration is greater when it comes to private documents, which receive constitutional protection. He considers the criterion expressed by the trial court even more serious, in the sense that based on article 276 of the Code of Criminal Procedure, evidence obtained in other criminal cases could be incorporated as simple documents, even when that evidence is the product of lifting bank secrecy. Numeral 334 of that same normative body would only authorize incorporating by reading the evidence obtained in accordance with what the code indicates, and evidently it is not possible to admit evidence derived from judicial orders for another case through the "kitchen door," as the trial judges intend. He qualifies as incredible that the court endorses that the Public Prosecutor's Office can investigate the facts, even despite legal and constitutional restrictions. He adds that the judge of the case [Nombre82] himself limited the use of the documents obtained to the specific case in which the order was issued, which he so ordered, moreover, because it was requested by the prosecutors, hence it is not possible that the evidence can be used in this process. The most serious thing is that the court accepts that the Public Prosecutor's Office eliminated that restriction from the translation and justifies that action as a simple error, stating: "At folio 875, the Judges state that this responsibility would be the translator's and not the Prosecutor's Office, when in this specific case the translation was carried out by the Prosecutor's Office, so the responsibility is attributable. Furthermore, it is not that this deletion is supposed, as the Judges falsely affirm on the same Folio, since in fact the paragraph by the Judge limiting the use of the information to the case [Nombre82] was deleted, and the Prosecutor's Office was aware of this, since it was the one that requested it ..." (F. 172,752 front). He ends by pointing out that if this court considers that the documentation derived from the lifting of bank secrecy in the Bahamas cannot be used in this case, by virtue of being limited to the case in which it was issued, the evidence that supposedly demonstrated the deposits benefiting [Nombre01 018] should be suppressed, having been obtained in violation of the norms indicated at the beginning of this section. **Third ground. Erroneous application of the regulations governing the lifting of bank secrecy in the Bahamas, in accordance with articles 24 of the Political Constitution, 615 of the Code of Commerce, the Organic Law of the Central Bank of Costa Rica, the Organic Law of the National Banking System and the referenced law 7425.** In this section, the following is stated: "… In Considerando II. H.

the majority Judges refer to this defense's opposition to the incorporation of Report 082-DEF because the documentation from BAC BAHAMAS BANK LIMITED was provided based on a letter rogatory not submitted to the proceedings and without the bank secrecy having been lifted for that entity in this case. As stated at Pages 877 and following of the judgment, evidence item 413, which appears at Page 6673 of Volume XV of the case file, was accepted without the letter rogatory authorizing it for this case being recorded. The foregoing was a ground of grievance in the previous Ground, but it is now expanded upon in another ground because the majority Court considers that, additionally, the documentation proving certain alleged investment certificates in the name of [Nombre01 018] at the Bank domiciled in the Bahamas was delivered based on a correspondent contract between BAC San José and Bahamas Bank Limited. It is curious that after exhaustively defending the validity of using the documentation derived from case Nombre82 to obtain this evidence in the Bahamas in a rather unsubstantial manner, they now simply opt to state that this information was not delivered on that basis, but rather by the alleged contract between both banking entities. Now it turns out, according to the Majority Court, that BAC San José is an offshore entity of BAC Bahamas, without this having been demonstrated in the case file. Which of the two is the head of the group? Where is that blessed and phantom contract between those entities, which not only fails to appear, but no one refers to it, attaches it, or even indicates where it is? But the Judges accept it without further ado, without seeing it, smelling it, or feeling it; it is like a proof of faith, worthy of a better cause. It exists because the Bank's employees say it exists, and that makes it real and valid. INCREDIBLE. It is not in the case file, it was never submitted, but it exists because the Judges say it exists. But worse still, if it does not exist, in any case, the order lifting bank secrecy directed to BAC San José in Costa Rica was sufficient, according to the Judges, as they state at Page 8979. Let us examine this carefully. The Judges indicate that evidence item 410 verifies that on June 1, 2004, the bank secrecy of [Nombre01 018] was lifted *in the national banking system, including BAC San José. That is correct, but we only now find out that BAC Bahamas Bank Limited was part of the national banking system... it is evident that this order was directed to banks in Costa Rica, not those in the Bahamas, according to the principle of territoriality that governs this matter. Article 1 of the Organic Law of the National Banking System, number 1644 of September 26, 1953, and its amendments, defines the national banking system and therein incorporates private commercial banks established and administered in accordance with Title VI of this law. Nothing is said in that title about offshore banks, as they are regulated in another law, the Organic Law of the Central Bank, which is Law 7558 of November 3, 1995. Nombre02 that when the Judge ordered the lifting of [Nombre01 018]'s bank secrecy from banks of the national banking system, he did so within the legal definition of that term and not according to whatever the majority judges might think. When at Page 879 the Judges attempt to justify that the Regulations for the Constitution, Transfer, and Registration of Financial Groups allow correspondent contracts to be signed, this is a Nombre83 truth. But what they do not demonstrate is the most important thing: that such a contract was actually signed beyond the good wishes of the Judges. The fact that such contracts are legal does not make them appear in reality or materialize them. Furthermore, according to the Judges, since [Nombre01 018] remitted the transfer from here, that is proof that the transaction was verified in Costa Rica and that it is therefore not truly an international operation requiring a letter rogatory to obtain the information. INCREDIBLE. The fact that the funds were sent from here does not refer to the type of document acquired abroad, so the sending of those certificates requires that bank secrecy be lifted in that country. If, for example, money is sent from the Banco Nacional to Banco Santander in Venezuela, that does not mean that the latter entity is a branch or agency of the former; it is simply a banking operation between two independent entities, and what Banco Santander does with the money sent is protected by bank secrecy. It should be noted that it is not BAC San José in Costa Rica that directly sends the information, but rather it does so because the Bank of the Bahamas sends it to them, which demonstrates that it was obtained illicitly and without respect for the existing constitutional procedure for doing so. Perhaps the clearest point, if it could be so, is to ask what the reason would be that the Prosecutor's Office requested the lifting of bank secrecy via letter rogatory in the Bahamas if, according to the Judges, it was sufficient to request the information from the local Bank..." But the ultimate expression of the Judges' thesis is their particular interpretation of bank secrecy. The last paragraph of point 2.H. 3 refers at Page 880 to the fact that the lifting of bank secrecy does not necessarily have to be directed to the Bank where the account is held, but rather that any entity can provide information it possesses about that person, even if the account is not held at that Bank. If one carefully reads paragraph 615 of the Commercial Code, it is understood that the order for lifting bank secrecy is directed to the entity with which the investigated person has operations, accounts, deposits, investments, or credits, so that the person responsible for such operations sends the information. It is not a matter of shooting wildly into the air, to patiently wait for any entity to tell gossip or provide unofficial reports about a specific person, as this would lead to prostituting the Judge's order, which must meet requirements even of constitutional rank. Banks send information derived from operations with them, specifically with the Bank receiving the order, and it cannot be understood to include the remittance of whatever knowledge is held about the investigated person..." (F. 172,752 to 172,754 front). Given that the information was obtained without an order from a competent judge, without a correspondent contract between the banks being recorded, and without the lifting of bank secrecy in this case, such information becomes illicit and must be excluded as an evidentiary element in the present case.

**XXVIII.- The arguments are not admissible.** In recital VIII.- of the Third Chamber's resolution, it ruled on the issues indicated here, stating: ***“VIII. Section III of the challenge filed by the Public Prosecutor's Office. Grounds for the Cassation Appeal related to the declaration of illegality of the so-called “Evidence Items No. 543, 544, and 545”.*** *The disregard of procedural rules 142, second paragraph, and 184 in relation to paragraph 408, subsection b), all of the Criminal Procedure Code, constitutes the* ***first ground of the third section of the filed appeal*** *, since, in the opinion of the prosecuting entity, the challenged judgment presents at least seven flaws in its intellectual reasoning, related to the confirmation of illegality of evidence items 543, 544, and 545, namely: 1.- Allegedly, it does not contain a citation of the rules of the Constitution, Law 7425, or the Criminal Procedure Code that expressly prohibit the use of legitimate documentary evidence within another criminal case. 2.- It asserts that, although judgment 2012-2550 generically alludes to the right to informational self-determination of Article 24 of the Constitution and the constitutional jurisprudence that develops it, it does not indicate the part of that norm or the specific precedents of the constitutional body that expressly prohibit using in one case documentary evidence legitimately obtained in another proceeding, which prevents the prosecutorial body from verifying its existence and correspondence between its ratio decidendi and the appealed decision (Cf. p.175095 of volume XLII of the case file). 3.- The judgment omits ruling on the factual and legal aspects that the Public Prosecutor's Office alleged in the oral appeal hearing, regarding the third ground of the appeal by Attorney José Miguel Villalobos, on behalf of [Nombre01 018], and the seventh ground of the appeal filed by co-defendants [Nombre01 018], [Nombre01 028], [Nombre 041], and [Nombre01 001], specifically regarding: a) [Nombre01 028] used products and services contracted in Costa Rica, both from the checking account of [Nombre 058] at Banco Cuscatlán in Costa Rica and from SAFI and Cuscatlán Valores, which also belong to the same Cuscatlán Group. b) According to the proven facts of condemning judgment 167-2011, both the accused [Nombre01 028] and [Nombre01 018] used the services of Costa Rican private banking to make and receive transfers of money and securities from [Nombre02 091], the former through account executive [Nombre 232] of Banco Cuscatlán and the latter, through BAC San José and its branches, meaning that they are private banks and affiliates operating in Costa Rica and forming part of the National Banking System, according to Article 1 of the Organic Law of the National Banking System. Furthermore, that although the information requested from these banks requires a judicial order, in this particular case, a sui generis situation occurred, since apart from the fact that the acts were committed in Costa Rican territory, the Costa Rican Authorities did not order either the Cuscatlán Group or BAC, in Costa Rica, to send documents from Cuscatlán Internacional Bank & Trust Limited or from Bahamas Bank Limited in that country, but rather both Financial Groups voluntarily delivered the information generated by them, arising from the commercial relationship with [Nombre01 058] and co-defendant [Nombre02 018]. They argue that, unlike decision 2012-2550, the Trial Court, in condemning judgment 167-2011, did make a broad pronouncement on the matter, according to the section* ***“H. Protests by the technical defense of [Nombre01 018]*** *” (Cf. p. 867 of the first-instance judgment)* *“3. Opposition to the incorporation of Report No. 082-DEF because the documentation of the bank (sic) of the Bahamas, on which it is based, was obtained based on a letter rogatory that was not submitted in this process” (Cf. p.175097 of volume XLII of the case file). They reiterate that, based on the alleged lack of pronouncement, the appealed Court reached an underived conclusion, with which it maintained that the Authorities of the aforementioned Financial Groups required an order directed to the Authorities of the Bahamas so that both the Cuscatlán Group and BAC would remit to the Costa Rican Authorities the information that they themselves generated in Costa Rica, arising from the commercial relationship they had with both co-defendants. 4) Again, the complainants argue that judgment 2012-2550, omits ruling on the factual and legal aspects alleged by the Public Prosecutor's Office in the oral appeal hearing held, only now with reference to: a) That the international transfers made by co-defendants [Nombre01 028] and [Nombre01 018], through bank accounts in Costa Rica, were not deposited in accounts in the Bahamas, but generated and stored here in Costa Rica at their request. b) That both the bank information of the Cuscatlán Group and BAC form part of the bank secrecy that those entities were required to observe. However, once said secrecy was lifted, by means of a judicial order issued by a competent Judge, they were also obligated to deliver that information, as indeed occurred. c) The information obtained by order of a Costa Rican Judge was not in the possession of Banks in the Bahamas but rather of the Cuscatlán financial group (Banco Cuscatlán, SAFI, Cuscatlán Valores) and BAC, domiciled in Costa Rica, so the issuance of a bank secrecy lifting order to Cuscatlán International Bank & Trust Limited or BAC Bahamas Bank Limited was unnecessary. Coupled with the fact that, in the case of the certificates implicating the accused [Nombre01 018], these were physically located at BAC San José here in Costa Rica, because the transactions carried out were done from our country, under the concept of the correspondent contract with the Bank of the Bahamas (Cf. pp.175099-175100 of volume XLII of the case file). By virtue of the foregoing, despite this, they assert that: “…* ***the Court(sic) Appeal of Judgment(sic)*** *”* ***omitted ruling on these factual and legal aspects specifically alleged by the Prosecutor's Office and extensively developed by the trial court(sic)*** *,* ***and without it being known based on what reason, argument, or evidence, it started from the alternative factual hypothesis that the transfers made to the banks of the Bahamas from Costa Rica were documented in information that*** ***could only be under the exclusive custody of offshore banks*** ***, just as if the transfer operations had been carried out entirely outside the national territory and only in the offshore bank. With this, the Judgment Appeal Court managed to obtain an underived conclusion, which is that the authorities needed an order directed to the authorities of the Bahamas so that the Cuscatlán Group and the BAC Group would give the Costa Rican authorities information*** ***that they themselves had generated and that was in their own possession here in Costa Rica*** ***, and that had also been generated on the occasion of the commercial relationship of the Cuscatlán Group and the BAC Group with [Nombre01 058]*** ***and the accused [Nombre01 018] in accordance with national law and with the service contract that both parties signed in our country…”*** * (Cf. p.175101 of volume XLII of the case file, the highlighting belongs to the original). 5) According to the Public Prosecutor's Office, unlike judgment 167-2011, the appellate resolution does not substantiate why the correspondent relationship between BAC San José and Bahamas Bank Limited was not demonstrated, nor does it explain the reason why evidence item 413, referring to the official communication of January 31, 2006, signed by the Head of Operational Risk Management of BAC San José (Cf. p.6673 of volume XV of the case file), was not credible, in which the existence of a correspondent contract is revealed in which BAC San José operates as the agent bank of BAC Bahamas Limited. Nor does it explain why it was possible for co-defendants [Nombre01 028] and [Nombre01 018], to make transactions before the banks of the Bahamas without needing to travel to that Island, if that correspondent contract did not exist. Insisting, furthermore, that the Second Instance Judges even less express why the note on page 80 of volume I of the case file, dated September 27, 2004, was not credible, in which representatives of Banco Cuscatlán informed the Public Prosecutor's Office of the preparation of respective documents to send to them, including, point e),* ***“…*** ***operations under the direct correspondent contract that Cuscatlán Bank and Trust co Ltd in Nassau maintains with Banco Cuscatlán de Costa Rica*** ***…”*** *(Cf. p.175102 of volume XLII of the case file. The addition belongs to the original). 6) They underline that the appellate Court in no way substantiates how, in the case of co-defendants [Nombre01 028] and [Nombre01 018], the information from the Bahamas can be legally excluded from checking account services performed in Costa Rica, nor do they mention the specific legal rule by which the information that these Costa Rican banks handle about the movements of a particular account, generated by their account holder's activities in accounts of other countries as a product of money transfers that the client sent or received from abroad through that same checking account in Costa Rica, can be excluded. 7) They add that the Second Instance Court did not examine the implications of the hypothetical exclusion of evidence items 543, 544, and 545 in this particular case, nor the thesis of the majority vote of condemning judgment 167-2011, of the Criminal Court of Treasury and Public Function, insofar as there are other documentary elements provided by BAC San José, which make it possible to determine the criminal responsibility of [Nombre01 018], such as “the joint relationship of annex No. 19 of report 082 DEF, relating to the movements of the bank account of [Nombre01 058]., with the evidence expressly authorized by [Nombre01 028] AND [Nombre01 221] through the notes dated September 21 and 29, 2004, contained in turn in evidence item No. 110, and equally through pages 28 to 33 of evidence item No. 132, coming from Banco Cuscatlán…” (Cf. p.175103 of volume XLII of the case file, the uppercase belongs to the original). As a grievance, they outline that the lack of substantiation in the judgment regarding the allegations of that entity, in relation to evidence items 543, 544, and 545, caused harm to the defense of the social interests entrusted to that Body, as the legal reasons considered by the Ad quem for rejecting the arguments presented are unknown to date, for which reason they request, as a relief, that the challenged judgment be annulled, the case file be returned to the competent Court of Appeal, so that, with a new composition, it issues a new judgment analyzing the points questioned in this ground. In accordance with Article 468, subsection b) of the Criminal Procedure Code, at the same time,* ***the Public Prosecutor's Office, in the second ground of the third section*** *, claims erroneous application of substantive rules 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica and disregard of Article 615 of the Commercial Code, because the appealed judgment considered that the information provided by Banks BAC San José and Cuscatlán Group in Costa Rica, regarding transfers made to financial entities domiciled in the Bahamas, exceeded the bank secrecy lifting order issued. According to the petitioners, the conclusion reached by judgment 2012-2550, when it states that: “The bank domiciled in the Bahamas is not a simple extension of BAC San José, but a bank that has been founded according to the rules of another country, so the procedure to obtain bank information from that institution must* ***be done through official channels*** *and, of course, with a judicial order to lift bank secrecy…”(Cf. p.175105 of volume XLII of the case file, the highlighting is added), is incorrect, precisely because Articles 141, 145, and 147 mentioned above and cited literally in the Public Prosecutor's Appeal, regulate the situation that occurred in this case, i.e., “Offshore Banking”, insisting that it is not true that, to obtain bank information from Bahamas Bank Limited, it was essential to carry out the corresponding procedures through the General Chancellery of the Republic, since the request made to the National Financial Group was sufficient. Also, that Article 615 of the Commercial Code was violated, because documents that, due to business relations between the Bank and the client, were recorded in those checking accounts, were erroneously excluded from the lifting of bank secrecy ordered from National Banks. They affirm that the serious error of the appealed decision consisted of misinterpreting the meaning and scope of bank secrecy, Nombre02 as arbitrarily limiting the information covered by the lifting of bank secrecy imposed on related Financial Groups, establishing through the doctrine of author Nombre84, in the book “* ***Contratos Bancarios. Su significado en América Latina*** *”, Legis, 5th Edition, p.380, that bank secrecy comprises “…* ***all information that has been provided to it on the occasion of its relationship with the client*** *…” (Cf. p.172107 of volume XLII of the case file), specifically: “…* ***•The private information it has received from its clients about their activities, businesses, plans, etc./ •Results of operations between bank and client, such as amount, destination, credit modalities, etc./ •The papers of its client that, by reason of business relations, have come into the hands of the bank*** *, and that it could not show to third parties without the procedural formalities indicated by law…”(Cf. p.172107 of volume XLII of the case file). Likewise, they point out that at the moment of applying that doctrine to the specific case, it is clear that the bank information that a financial group has in Costa Rica is not limited solely to that generated by the client's activities in our country, but also to accounts in other countries, as a product of money transfers made from the same account abroad, to repeat that the international transfers referred to in the judgment were made through bank accounts located in Costa Rica, so the information of those transactions to banks in the Bahamas, being generated and stored in Costa Rica, at the request of the co-defendants themselves, formed part of the bank secrecy that the Cuscatlán and BAC San José Financial Groups were required to observe, but also comprised the information that, once the corresponding bank secrecy was lifted, had to be delivered to the Costa Rican Judicial Authorities, as it was bank information obtained in our country, by virtue of business relations between Bank and client, as indeed occurred. Based on the foregoing approach, they state that an order lifting bank secrecy from Cuscatlán International Bank & Trust Limited or from BAC Bahamas Bank Limited was unnecessary, and therefore, from that perspective, evidence items 543, 544, and 545 are valid. As a grievance, they explain that the non‑application of the aforementioned rules caused illegitimate harm to the punitive claims of the Public Prosecutor's Office, because it prevented them from developing a theory of the case linked to the remaining evidence, especially with the testimony of collaborating witness [Nombre01 064]. As a relief, they request that the ground be granted, the annulment of the judgment be ordered, and remittal for the issuance of a new resolution in accordance with the law. Finally, under the terms of paragraph 468, subsection b) of the Criminal Procedure Code,* ***in the third claim of the third section of the Public Prosecutor's Office's cassation appeal*** *, erroneous application of Article 24 of the Constitution is claimed, when invalidating evidence items 543, 544, and 545. For the Public Prosecutor's Office, the alleged defect claimed is verifiable when the appellate Court, based on an erroneous conception of said paragraph, equates the use of the same evidence in two different criminal cases to a “second lifting of bank secrecy,” without a judicial order (Cf. p.175119 of volume XLII of the case file). Precisely, the prosecuting entity, in its challenge, explains two alleged errors incurred by the Court of Appeal when resolving the issue of the previously cited evidence: 1.- The judgment presents confusion when interpreting Article 24 of the Constitution, when it refers to “Courts of Justice” (plural) for “the matters” (plural), as the norm does not specify that information, once obtained through letters rogatory or the lifting of bank secrecy, can only be used in the proceeding in which it was originally requested, but rather, on the contrary, establishes the Courts of Justice as the only ones competent to obtain that private information, when it presents the phrase “submitted to their knowledge,” which means that it is exclusive use for criminal cases, where the request to the judicial body is indispensable, as it excludes those powers or institutions other than the Courts of Justice from obtaining it (Cf. p.175120 of volume XLII of the case file). 2.-For the claimants, the Second Instance Court ignores the procedural principles of publicity and community that govern evidentiary matters: bank secrecy in relation to the revealed, compiled, systematized information made known to all parties can only be lifted once, precisely because it has lost its condition of secrecy (Cf. p.175121 of volume XLII of the case file). Furthermore, the petitioners mention that evidence items 543, 544, and 545 acquired that publicity when they were added, discussed, and incorporated into the debate in the CCSS-Fischel process, as part of the information remitted from BAC Bahamas, in which copies of investment certificates referred to by co-defendant [Nombre01 018] to BAC Bahamas were delivered, which were received by BAC San José, with the purpose of being transferred to BAC Bahamas, together with an amount in dollars debited from that account, according to the correspondent contract, in which BAC San José operated as Agent of BAC Bahamas Bank Limited (Cf. p.175122 of volume XLII of the case file).

On the same topic, the appellants transcribe verbatim folios 16016 and 16017 of the first-instance judgment 167-2011, to support the reasoning presented and affirm that the BAC Bahamas documentation provided by Ms. [Nombre01 233], as Head of Operational Risk Management of Bac San José, is lawful, given that it was generated and was physically located in Costa Rica. For the prosecuting entity, the lifting of bank secrecy (secreto bancario) of the BAC San José accounts, besides having been obtained in accordance with legal regulations, was public and common to all parties when it was incorporated into the CCSS-Fischel criminal proceeding, such that it is absurd to maintain that the bank secrecy had to be lifted in both proceedings, since it is a single secrecy and is lifted only once. Likewise, the petitioners assert that the judgment fails to indicate the constitutional and legal provisions (Ley 7425 or the Criminal Procedure Code) that expressly prevent the use of evidence legitimately obtained in one proceeding from being used in another, and thus for the prosecutorial representatives, that evidence must be examined under the doctrinal concept of “transferred evidence” (prueba trasladada) (Cf. f.175124-175125 of volume XLII), which is based on the unity of jurisdiction, not requiring identity of parties, but rather the prior existence of adversarial proceedings and cognition of the evidence in the other proceeding, where its full efficacy has been determined, according to the principle of freedom of evidence, reflected in articles 182 and 234 of the Criminal Procedure Code and in ruling (voto) 2001-764 of the Third Chamber, from which they cite an excerpt (Cf. f.175125-175126 of volume XLII of the case file). Thus, for the prosecutorial representatives, not only was there an evident connection between case Nombre82 and case Nombre64 091], but the information obtained from BAC Bahamas Bank Limited in the Bahamas, on the occasion of the connection with the BAC San José account in Costa Rica, in case CCSS-Nombre01, was made known to all co-defendants, including [Nombre01 018], who had the opportunity, together with his technical defense, to rebut it, its incorporation having been declared valid in that other proceeding. For the foregoing, they plead as a grievance an illegitimate harm to the punitive aims of the Public Prosecutor’s Office (Ministerio Público), an organ that failed to prove its theory of the case due to the exclusion of the aforementioned evidentiary elements, the prosecutorial appeal requesting both the annulment of the appealed decision regarding the declaration of unlawfulness of evidence items 543, 544, and 545, and the issuance of a new decision that resolves the issue raised. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">For reasons of procedural economy and because they refer to interrelated issues, the first, second, and third grounds of the Third Section of the prosecutorial appeal are resolved jointly and are granted: </span><span style=\"font-family:Arial; font-style:italic\">Given the nature of the claims, the following considerations must be made: i) Regarding evidence items 543, 544, and 545 in particular: As was previously done by the Criminal Court of the Public Treasury (Tribunal Penal de la Hacienda Pública), of the Second Judicial Circuit of San José, in judgment 167-2011, before deciding on the lawfulness or unlawfulness of the aforementioned evidence items 543, 544, and 545, it is necessary to assess what pertains to that material. According to the charging document, which appears at folios 8020 to 8364 of volume XIX of the case file, evidentiary elements 543, 544, and 545 were described by the Public Prosecutor’s Office in its request for “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">FORMAL ACCUSATION AND REQUEST FOR OPENING OF TRIAL</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">” (Cf. f.8020-8364 of volume XIX of the case file. The addition belongs to the original), within the section called “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Judicial Letters Rogatory</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">”, as: “…543) Certified Copy of the request to the Criminal Court by the prosecutorial body for the issuance of a Letter Rogatory (Carta Rogatoria) addressed to the Republic of the Bahamas, dated October 5, 2004 (...) 544) Certified copy of the Letter Rogatory (Exhorto) issued by the Criminal Court of Costa Rica to the authorities of the Bahamas (…) 545) Certified copy of the Response to the letter rogatory to the Bahamas by the Consul Nasaú(sic), Bahamas and copy of the translation into English of the Letter Rogatory issued by the Criminal Judge of Costa Rica to the authorities of the Bahamas…” (Cf. f.8324 of volume XIX of the case file), given that with evidence item 543, the prosecutorial body sought to prove the “…request of the Public Prosecutor’s Office to access bank information related to [Nombre01 018], [Nombre01 215] among others for the “off shore” [operations] of Banco de San José in the Bahamas(…)…”(Cf. f.8324 of volume XIX of the case file); with item 544, both the legalization process in obtaining that evidence and “…the bank records of the operations conducted by [Nombre01 018] in “….the deposit of money coming from [Nombre01 058] into the account of [Nombre01 215] and the translation into English of the request made…” (Cf. f.8324 of volume XIX of the case file). Hence, as an important fact, the unnumbered official communication of October 5, 2004, later designated as evidence item 544, refers to the letter rogatory (exhorto) sent by Licenciado Adrián Molina Elizondo, in his capacity as Criminal Judge of the Treasury and Public Function of the Second Circuit, through the Secretariat of the Supreme Court of Justice and the Ministry of Foreign Affairs to the Government of the Bahamas, which was made in connection with investigation 04-0005356-042-PE, pursued against [Nombre01 018]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, [Nombre01 158]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, [Nombre01 225], [Nombre 234], [Nombre02 235] and [Nombre02 236], for the crimes of aggravated corruption, illicit enrichment, and others, to the detriment of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social), in the case called Caja-Fischel, as is shown in folio 6629 et seq. of volume XV of the case file. That request also set forth the factual background that motivated the action, indicating that it was an investigation to prove facts related to the “Finlandia Project” (facts 1 and 57) and to the “Purchase of a House in [...]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">” (facts 58 to 59, given that the document provided by the prosecutorial body was determined to be incomplete) (Cf. f.00015313-00015314 of volume XXXI of the case file), and whereas, although other possible involved parties were mentioned in that petition, it was essentially aimed at verifying the actions of the accused [Nombre01 018], [Nombre01 158] and [Nombre01 225], since information was required from accounts [Valor 044]</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, [Valor 045] and [Valor 046] of Banco de San José in the Bahamas, specifically the names of the account holders mentioned, as well as the “…</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">delivery of ALL original documentation from the time it was opened</span><span style=\"font-family:Arial; font-style:italic\">…”(Cf. f.6550 of volume XV of the case file. The addition is ours),</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> which should include: “…for each account, but not limited to: • Signature cards/• Documents related to the opening of accounts/• General ledger cards/• Periodic account statements/ • Records of deposits and withdrawals/ • Instructions related to the receipt or transfer of any funds to or from the account whether by fax, email, or any other means of communication/ • Correspondence to, from, or for the benefit of the account holder(s)/• Memorandums related to the account/• Cashier’s checks and documentation for the purchase of cashier’s checks/• Balances/• Closing dates/• Inactivity/• Any other documentation of the account, transaction or financial activity…”(Cf. f.6550 of volume XV of the case file. The addition is ours), so that the content of evidence item 545 corresponds to the records and documents that the bank accounts produced. Once all those evidentiary elements were submitted by the prosecutorial body in its request for opening of trial, the technical defenses argued about their lawfulness, questioning the fragmentation, because the document incorporated as evidence 543 was incomplete, Nombre02 as well as the absence of the corresponding judicial order to access sensitive information such as that relating to bank accounts abroad (Cf. f.00015310 of volume XXXI of the case file). However, judgment 167-2011, issued at first instance, by majority vote, in response to the defensive claim of attorney Villalobos, established in section </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">“…1. </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">Bank evidence from Banco de San José in the Bahamas requested in the “Caja-Fischel” case and submitted as evidentiary material in this proceeding (evidence items No. 543, No. 544 and No. 545</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">)</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">” (Cf. f.15310 of volume XXXI of the case file. The addition belongs to the original), the legality both of those evidentiary sources and their subsequent incorporation into the present proceeding, when it determined that said material, despite coming from case file 04-5356-042-PE, against [Nombre01 238] and others,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> called “Caja-Fischel” and having been added to the present case file 04-6835-647-PE, could be transferred, there being no express legal prohibition in this regard and determining that: “…at the time the Prosecutor’s Office makes the referenced request to the criminal judge (sic) of the preparatory stage to request from the competent authorities (sic) of the Bahamas the evidence of its interest, it did not have the necessary clarity to discern that these facts were unconnected from those it was then investigating in the context of the ‘Caja-Fishel’ case” (Cf. f.00015312 of volume XXXI of the case file). Likewise, that although the copy of at least ten folios of the last part of the original document, submitted by the Costa Rican Prosecutor’s Office, had been omitted, the truth was that it was not possible to infer bad faith from those photocopies on the part of the prosecutorial representatives, given that the authorization of Judge Adrián Molina Elizondo to gather that evidence in the Bahamas was discernible from them without any problem (Cf. f.00015313 of volume XXXI of the case file). However, the Sentencing Appeals Court (Tribunal de Apelación de Sentencia), regarding the defensive challenges, determined that BAC San José in the Bahamas did not constitute an extension of its counterpart in Costa Rica, and thus any bank information coming from that entity should have been processed through the corresponding legal means, that is, through the issuance of the respective judicial order, absent in this proceeding. Furthermore, according to the Ad quem, its use was restricted to case 04-0005356-042-PE, so its transfer to this new proceeding was not proper, apart from the fact that a correspondent relationship between BAC San José and BAC Bahamas Limited had not been demonstrated (Cf. f.174525-174526 of volume XLI of the case file). For these latter reasons, the Public Prosecutor’s Office again disputes the lawfulness of these evidence items, only now under the guidelines and restrictions set forth in article 468, subsection b) of the Criminal Procedure Code. Now, from the foregoing account, it is necessary to make some reflections of interest, since from the reading of the section called: “…</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">B.</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Spurious Evidence. In the second ground of the appeal filed by [Nombre01 018], the erroneous application of the rules concerning the lifting of bank secrecy is raised, so the bank evidence used to demonstrate deposits in his favor is unlawful and unusable for a conviction…” </span><span style=\"font-family:Arial; font-style:italic\">(Cf. f.174525 of volume XLI of the case file) contained in the challenged decision 2550-2012, this Cassation Chamber (Cámara de Casación) notes the existence of errors of erroneous application of constitutional and legal provisions, infringement of the principle of derivation (principio de derivación), and absence of intellectual reasoning, with respect to evidence item 110, as alleged by the prosecutorial body, based on the following considerations: i) Erroneous application of articles 24 of the Political Constitution; 1, 28 and 29 of Ley 7425, of August 9, 1994, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones (Law on the Registration, Seizure and Examination of Private Documents and Interception of Communications) and 615 of the Commercial Code. According to the reasoning set out in the challenged decision, it is possible to ascertain that the Ad quem required, as a prerequisite for declaring evidence items 543, 544, and 545 lawful, a new judicial order in the present proceeding, arguing that the information coming from Bac Bahamas Bank Limited, aimed at lifting the bank secrecy of the accounts of the accused [Nombre01 018], should have been gathered by means of a judicial resolution that Nombre02 would permit it, the transfer of those evidentiary elements from one proceeding to another not being possible, when the truth is that the aforementioned articles do not contain an express prohibition against their use in subsequent cases. Certainly, before continuing with the study of the evidence mentioned above, it is necessary to reiterate that article 24 of our Political Constitution enshrines the fundamental right to privacy, freedom, and secrecy of communications, for which the article is transcribed again, in order to establish that said provision states: “The right to privacy, freedom, and secrecy of communications is guaranteed./</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\"> Private documents and written, oral, or any other type of communications of the inhabitants of the Republic shall be inviolable</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">. However, a law, the approval and reform of which shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall determine in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when absolutely indispensable to clarify matters submitted for 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 provision must be reasoned and may be executed immediately. Their application and control shall be the non-delegable responsibility of the judicial authority./ The law shall establish the cases in which competent officials of the Ministry of Finance and the Office of the Comptroller General of the Republic may review accounting books and their annexes for tax purposes and to supervise the correct use of public funds./ A special law, approved by two-thirds of the total number of Deputies, shall determine which other bodies of the Public Administration may review the documents indicated by that law in relation to the fulfillment of their regulatory and oversight powers to achieve public purposes. It shall also indicate in which cases such a review is appropriate. / Correspondence that has been stolen and information obtained as a result of the illegal interception of any communication shall have no legal effect. / (Thus amended by article 1 of law No. 7607 of May 29, 1996. The addition is ours). From the cited Constitutional provision, it follows that the fundamental right to privacy enshrined in that article is closely related to the sphere of protection of the private life of individuals within a Democratic State, since it comprises: “…</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">those phenomena, behaviors, data, and situations of a person that are normally withheld from the knowledge of strangers</span><span style=\"font-family:Arial; font-style:italic\">. Such sphere of privacy is justified because in a democratic system every person has the right to maintain confidentiality over certain activities, data, documents, or opinions of theirs, since it is impossible or very difficult to coexist and fully develop the goals a person sets for themselves without enjoying a framework of privacy, protected from interference by the State or other persons (see article 11.2.3 of the American Convention on Human Rights or Pact of San José)…” (</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Contentious-Administrative Tribunal, Section VI,</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">ruling (voto) 2010-02958, of eight o’clock, on August ten, two thousand ten. The highlighting is ours). However, as defined by ruling 2010-02958 of the Contentious-Administrative Tribunal, Section VI cited above, with emphasis on ruling 2005-02703, of ten hours and seventeen minutes, on March ten, two thousand five of the Constitutional Chamber (Sala Constitucional), within the right to privacy contemplated in article 24 of the Political Constitution, the inviolability of private data and documents must be considered a manifestation of that guarantee, insofar as it is understood as a safeguard so that private individuals cannot access them and, at the same time, as a prohibition so that public or private entities that manage that information cannot supply it to third parties, given that: “…Article 24 of the Political Constitution guarantees all persons a sphere of privacy that is intangible for the rest of the legal subjects, so that those intimate, sensitive, or nominative data that a public entity or body has collected, processed, and stored, as they appear in its files, records, and physical or automated dossiers, cannot be accessed by any person since that would entail an intrusion or unconstitutional external interference…” (</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Constitutional Chamber of the Supreme Court of Justice, </span><span style=\"font-family:Arial; font-style:italic\">ruling (voto) 2005-02703, of ten hours and seventeen minutes, on March ten, two thousand five. In a similar sense, ruling 2003-00136, of fifteen hours and twenty-two minutes, on January fifteen, two thousand three, cited in</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> Contentious-Administrative Tribunal, Section VI,</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">judgments 2010-02958, of eight o’clock, on August ten, two thousand ten and 838-2009, of eight hours and thirty minutes, on May six, two thousand nine). Despite the indicated restrictions, the inviolability of private data and documents is also not unrestricted, since the Political Constitution itself establishes limitations or exceptions, when it refers to the law, Ley 7425 having been enacted to establish specific regulations, in the case of interceptions of oral or written communications and the right to privacy in general, while specifically, for bank secrecy, it refers to article 615 of the Commercial Code. In this regard, on the notion of bank secrecy, as an essential topic for resolving the grounds raised by the prosecutorial body, it must be maintained that the Constitutional Chamber itself has understood it as “…a legal manifestation of the legal interest protected through the provisions of article 24 of the Political Constitution (fundamental right to privacy). In that sense, bank secrecy is ‘the duty imposed on all financial intermediary entities not to reveal the information and data they possess on their clients by virtue of any banking operation or banking contract entered into with them, especially concerning checking accounts, since article 615 of the Commercial Code expressly enshrines it for that scenario...’ (</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Constitutional Chamber of the Supreme Court of Justice</span><span style=\"font-family:Arial; font-style:italic\">, ruling (voto) 2005-02703, of ten hours and seventeen minutes, on March ten, two thousand five cited by </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Contentious-Administrative Tribunal, Section VI,</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">ruling (voto) 2010-02958, of eight o’clock, on August ten, two thousand ten. In the same sense, </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Constitutional Chamber of the Supreme Court of Justice, </span><span style=\"font-family:Arial; font-style:italic\">rulings (votos) 2014-005599, of fourteen hours and thirty minutes on April [omission in original] two thousand fourteen; 2004-14210, of fifteen hours and four minutes, on December fourteen, two thousand four and 2003-00136, of fifteen hours and twenty-two minutes, on January fifteen, two thousand three. In a similar position, Nombre85 (Mario), Secreto Bancario, in Nombre86 (Nombre87) et al., </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">Legitimación de Activos Ilícitos</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">, Buenos Aires, Ad-Hoc, 2010, p.525. A notion that, undoubtedly, is closely linked to Ley 7425, to which article 24 refers and especially to article one, which imposes as the exclusive competence of the Courts of Justice the power to “authorize the registration, seizure, or examination of any private document, when absolutely indispensable to clarify matters submitted for their cognizance”, and exclusively,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> article 615 of the Commercial Code contains what relates to the issue of bank secrecy in bank account contracts, stating that: “…</span><span style=\"font-family:Arial; font-weight:bold\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">Checking accounts are inviolable and banks may only provide information about them upon request or with the written authorization of the account holder, or by order of a competent judicial authority</span><span style=\"font-family:Arial; font-style:italic\">. The intervention carried out in the fulfillment of its duties as determined by law by the General Superintendency of Financial Entities, or the General Directorate of Taxation authorized for such purpose, is excepted.” (Thus amended by Ley 9068, Ley para el cumplimiento del estándar de Transparencia Fiscal, of September 10, 2012. The addition is ours). From the regulations present in both provisions, it is clear that in our legal system, bank secrecy constitutes a derivation of the fundamental right to privacy, which requires, as a fundamental prerequisite to be infringed, the issuance of a resolution issued by a competent jurisdictional entity. However, by its nature, it may also be waived through the free and voluntary authorization of the account holder. But, in either of the two options, its use is not restricted to the criminal case in which the lifting of the bank documents was performed. It must be recognized that the only restriction applies to written or telephone communications, which is expressly contained in article 28 of Ley 7425, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, which specifically prohibits the transfer of evidence related to the interception of written or telephone communications, when it states: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">“Article 28. Restricted use of information</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">. The results of the </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">interception of oral and written communications may not be used for any purpose other than that which motivated the measure</span><span style=\"font-family:Arial; font-style:italic\">” (The underlining is ours), since it should be recalled that in the case of interceptions of oral, written, telephone, or any other type of communications, article nine of the same Ley 7425, when dealing with the violation of a fundamental right, by the principle of proportionality, specifies in an exhaustive list the crimes for which that restriction is permitted. On the matter, note that both Constitutional jurisprudence and that of this Third Chamber have considered, as a practice violating the right to privacy, the use of results obtained through written or oral interceptions ordered in one criminal proceeding, which are used in another of the same matter, or, for example, within</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> sanctioning or disciplinary proceedings (See in the same sense, </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Constitutional Chamber of the Supreme Court of Justice, </span><span style=\"font-family:Arial; font-style:italic\">ruling (voto) 2014-004035, of eleven o’clock, on March twenty-one, two thousand fourteen,</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> which also refers to rulings 1571-96, of twelve hours and thirty-six minutes, on March twenty-nine, nineteen ninety-six; 06378-1995, of sixteen hours, on November twenty-two, nineteen ninety-five; and 2007-003890, of fifteen hours and fifty-one minutes, on March twenty, two thousand seven; 9421-02, of sixteen hours and eight minutes, on September twenty-six, two thousand two; 1991-678, of fourteen hours and sixteen minutes, on March twenty-seven, nineteen ninety-one; 1994-1026, of ten hours and fifty-four minutes, on February eighteen, nineteen ninety-four; 2268-03, of sixteen hours and forty-seven minutes, on March eighteen, two thousand three. In the same sense </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Third Chamber of the Supreme Court of Justice, </span><span style=\"font-family:Arial; font-style:italic\">ruling (voto) 2013-00073, of nine hours and seven minutes, on February twelve, two thousand thirteen). However, the restriction contained in article 28 of Ley 7425 could not be applied to private bank information derived from the lifting of bank secrecy, since this only refers to the interception of oral and written communications. In contrast, article 22 of the same Law contains a duty of confidentiality for those charged with intercepting those communications, be they police officers, assistants to the administration of justice</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> or judges, when it expressly states, within the title of “</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">RESPONSIBILITIES, PROHIBITIONS AND PENALTIES</span><span style=\"font-family:Arial; font-style:italic\">” that: “…Officials and employees participating in the interception of communications, the registration, seizure, or examination of documents or those who have the power to request these measures, are prohibited from: 1. Using the results of the interception for purposes other than those that motivated it…”.

The foregoing demonstrates that these are two dissimilar situations, as there is no provision within Ley 7425 that restricts the transfer of evidence derived from banking information obtained in another proceeding, which leads to the conclusion that, in the absence of an express prohibition, such evidence, provided it meets the requirements for transferred evidence as demanded by legal doctrine, may be used in subsequent proceedings, provided they are criminal in nature. On this subject, based on the principles of freedom and breadth of evidence, unity of jurisdiction, and procedural economy, the majority position in criminal procedural doctrine has admitted, with respect to evidentiary activity, the concept of "transferred evidence" ("prueba trasladada"), "borrowed evidence" ("prueba prestada"), or "transfer of evidence" ("traslación de la prueba") as that evidence which has been produced for a specific proceeding and is then used in another. Thus, for author Nombre88, transferred evidence is nothing other than that which "...is produced or admitted in another proceeding and is presented in certified copy or by the removal of the original, if the law allows it" (Nombre88 (Nombre89), <span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.367), while for Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) and others, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.367, it is "that which is produced in one proceeding to generate effects therein, later being transported documentarily to another, where it generates effects in a different proceeding." For both authors, as a general rule, for the transfer of evidence to apply, if there is no regulation to the contrary that prohibits it, any evidence may be useful in one or more proceedings. Hence, as essential requirements for the admissibility of such evidence, the same author Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) and others, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.371-377, has described at least five prerequisites for its validity: 1. Participation of the opposing party in the production of the evidence: that is, in the obtaining of the transferred evidence, the principles of</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> contradiction and defense must have been guaranteed (In the same sense, Nombre88 (Nombre89), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.367 and 373). 2. Identity of parties: for the majority doctrine, according to Nombre93, the borrowed evidence need not possess the characteristic of identity of parties in both proceedings, but rather the affected party must have had the opportunity for contradiction in the previous proceeding. 3. Collection of evidence in a jurisdictional proceeding: by the principle of jurisdictional unity, for the borrowed evidence to be valid, it is essential that its collection has occurred in the context of a jurisdictional proceeding (In the same sense, Nombre88 (Nombre89), </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Teoría General de la Prueba Judicial</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.373). 4. Identity of facts: by the principle of ne bis in idem, absolute identity of the facts of both proceedings is not necessary, but at least a simple relation. 5. Compliance with legal formalities: according to Nombre93, for the transfer of evidence to a second proceeding to be valid and effective, the regularity of the evidence obtained in the original proceeding is indispensable. Thus, regarding the last of the established requirements, it is clear that if the procedural regulation in the legal system restricts evidentiary activity solely to the specific case, the transfer of evidence from one case file to another would invalidate that evidence for the second proceeding, even if its origin in the first was valid. In this regard, in the present proceeding, the principles of contradiction and defense have been guaranteed, as the defendants and their defense counsel have been able to object to that evidence, to the point that the Court of Criminal Sentence Appeals (Tribunal de Apelación de Sentencia Penal) declared it unlawful. Likewise, pieces of evidence 543, 544, and 545 were collected within a jurisdictional proceeding, where there was a relationship between the facts of the first proceeding and those that the Public Prosecutor's Office (Ministerio Público) investigated in this other case, and finally, compliance with legal formalities was presented, as was the absence of a legal or supra-legal rule that prevented the transfer of the mentioned evidence. (On the requirements of transferred evidence, see Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, cited in Nombre93 (Nombre96), Prueba Trasladada (o producida en otro expediente judicial), in Nombre94 (Nombre95) and others, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Tratado de la Prueba</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Editorial Librería de la Paz, 2007, p.367, cited in subsection VI of this judgment). Precisely, note that the letter rogatory sent by Judge Molina Elizondo to the Government of the Bahamas was based on articles 62, 65, 154, 180, and 181 of the Code of Criminal Procedure (Código Procesal Penal), article 41 of the Costa Rican Political Constitution, and articles 5 and 6 of the Vienna Convention, such that the resolution fully complied with the requirements demanded by our legislation regarding the letter rogatory. The objections aimed at determining its illegality based on its transfer from case file 04-005356-042-PE or Caja-Fischel to the present case are not well-founded, since Ley 7425, as analyzed supra, does not contain restrictions for this type of information, because the only reference to the prohibition of transferring evidence is contained in article 28 of Ley 7425, but it refers to other scenarios, namely the interception of oral or written communications. Thus, this Chamber finding no defect under the indicated regulations that conflicts with the requirements of transferred evidence, in application of the principle of freedom of evidence contained in article 182 of the Code of Criminal Procedure, the lawfulness of that evidence must be declared. Furthermore, note that when the Court of Appeals resolved the defense objections, it also failed to determine the procedural importance of that body of evidence, by dispensing with an examination in constructing its reasoning of whether it was the product of an independent source or whether, on the contrary, it was evidence derived from another piece of evidence transcendental to the proceeding. In this sense, given that the Court of Appeals declared evidence null that was not so, due to the erroneous application of constitutional and legal rules, judgment 2550-2012 lacks sufficient reasoning and must be declared as such. Despite this, in strict adherence to the legal restrictions incorporated with the entry into force of Ley 8837 on the powers of this Third Chamber, regarding the assessment of evidence, it will be up to the Court of Criminal Sentence Appeals, with a new composition, to analyze, in accordance with the rules of sound criticism, pieces of evidence 543, 544, and 545, based on their comprehensive assessment in consonance with the evidentiary elements incorporated into the debate. ii) The second instance judgment presents an infringement of the principle of derivation, which prevents its effectiveness: According to the reasoning contained on folios 174525 to 174526 of volume XLI of the case file, it is clear that the Court of Appeals, in judgment 2012-2550, incurs an infringement of the rules of sound criticism, specifically the principle of derivation, when it categorically affirms that pieces of evidence 543, 544, and 545 are unlawful and unusable within this proceeding, because: “…</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">the supposed correspondent relationship or reciprocal representation contract between BAC San José and Bahamas Bank Limited is another important matter that has not been demonstrated in the case at hand</span><span style="font-family:Arial; font-style:italic"> and it is also not known whether the mentioned banks can exchange available information on their accounts by mere internal administrative request for the normal course of their financial activities (…) </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">Thus, 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</span><span style="font-family:Arial; font-style:italic">. The already considered effects of the appeal filed by the defendants [Nombre02 001], [Nombre01 028], [Nombre01 041] and [Nombre01 018] also apply…” (Cf.f.174526 of volume XLI of the case file. The emphasis is ours), while from piece of evidence 413, linked to the official communication of January thirty-first, two thousand six, signed by the Head of Operational Risk Management of BAC San José, [Nombre01 233]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic"> (Cf.f.6673 of volume XV of the case file), a different conclusion can be drawn, since the aforementioned document certifies that: “…</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">In accordance with our correspondent contract, in which BAC San José operates as the agent bank of BAC Bahamas Bank Limited and duly authorized by the legal advisory and the Administration of said institution, we proceed to provide the following clarifications</span><span style="font-family:Arial; font-style:italic"> related to the information delivered by BAC Bahamas to the Attorney General of the Bahamas on the past 9th of June, 2005, document with reference CLE-GEN-00293, thereby responding to your communication No.40-FADECT-06-MM of January 19, 2006./ As part of the information remitted by BAC Bahamas to the Attorney General of the Bahamas on the past 9th of June, 2005, photocopies of the following three investment certificates with their respective coupons were delivered (…) These certificates were received by BAC San José (sic) on January 15, 2002, to transfer to BAC Bahamas together with an amount of $8,165.23 debited from account No.[Valor 047] in the name of [Nombre01 018]. With this money plus the principal and interest of certificate 720016762 in the name of [Nombre01 018] totaling $161,725, BAC Bahamas constituted on January 15, 2002, certificate No.720096897 in the name of [Nombre01 018] for $200,000…” (Cf.f.6673 of volume XV of the case file). Thus, it is evident that from said piece of evidence it is possible to derive a commercial relationship between BAC San José and BAC Bahamas Bank Limited, which determines, undoubtedly, the existence of the mentioned correspondent relationship between the banking entities indicated above, and that the conclusion of the Court of Appeals did not integrally consider pieces of evidence of transcendental value such as the content of piece of evidence 413, making the aforementioned affirmation lightly. iii) Nor did the Ad quem assess piece of evidence 110, which has a special relationship with evidentiary material 543, 544, and 545. Within the concept of bank secrecy, sustained by doctrine, “…there are limits (…) of a merely private nature or subjective limits, such as the express consent of the client, interbank information, or the legitimate interest of the Bank in lifting bank secrecy, the latter normally referring to a conflict with the client…” (GUILLÉN FERRER), María José, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">El secreto bancario y sus límites legales (límites de derecho público</span><span style="font-family:Arial; font-style:italic">), Tirant lo Blanch, 1997, p.115. Regarding the express consent of the client, it has also been established that “…the basis of this limit finds its reason for being in the fact that (sic) the very holder of the secrecy, the principal interested party in (sic) maintaining the reserve, agrees to the revelation of the secrecy in itself, considered as the will to conceal. The express consent of the client to the lifting of bank secrecy constitutes a limit unanimously admitted by doctrine, which must be related to the renounceable nature of the right to privacy in general that every person, both physical and legal, has. Consent in these cases does not imply the absolute abdication of this right or an absolute and abstract renunciation thereof, but rather a partial and voluntary detachment from the faculties conferred by the right to privacy…” (GUILLÉN FERRER) María José, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">El secreto bancario y sus límites legales (límites de derecho público</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">), Tirant lo Blanch, 1997, p.115-116. This subjective limit of the right to bank secrecy, unlike in other legal systems, is legally recognized in our country in articles 615 of the Commercial Code (Código de Comercio) and 29 of Ley 7425, since the lifting of bank secrecy may derive either from an express judicial resolution or from the respective authorization of its holder. However, in the specific case, that evidence was never examined in relation to the authorizations issued by the defendant [Nombre01 028] and [Nombre01 221] who, freely and voluntarily, empowered the Grupo Financiero Cuscatlán to provide any information and documentation requested by the Judicial Authorities of Costa Rica concerning their bank accounts. Nor was it examined that those Banks, in light of articles 141, 145, and 147 of the Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica), present the particularity of forming a financial group based in Costa Rica, where the information of those accounts was stored in our country, which allowed establishing that all the movements in the accounts were carried out from Costa Rica. On this matter, it must be recognized that numeral 29 of Ley 7425 establishes that: “</span><span style="font-family:Arial; font-weight:bold; font-style:italic">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</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. </span><span style="font-family:Arial; font-weight:bold; font-style:italic">This consent shall be revocable at any time</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">” (Our emphasis), which implies that this right to privacy is disposable by the account holder, in such a way that the subject may waive it, as long as they do so freely and spontaneously, since bank secrecy, because it belongs to the physical person, is disposable individually or through a legal entity. (See in the same sense, Nombre85 (Mario), Secreto Bancario, in Nombre86 (Nombre87) and others, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Legitimación de Activos Ilícitos</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Buenos Aires, Ad-Hoc, 2010, p.525.), so that, if co-defendant [Nombre01 028] and his wife decided, through respective official communications, to reveal their accounts to third parties, given the criminal proceeding being pursued against them, this Chamber finds no illegality whatsoever; on the contrary, it is considered that said evidence should have been analyzed by the competent Court in light of pieces of evidence 543, 544, and 545, an analysis that is noted as absent in the case at hand. In sum, in accordance with articles 467, 468, 469, and 471 of the Code of Criminal Procedure, the first, second, and third grounds of the Third Section of the Public Prosecutor's Office's Cassation Appeal are declared with merit, and therefore for these reasons, the acquittal judgment decreed in favor of [Nombre01 001], [Nombre 028], [Nombre 041], [Nombre 018], [Nombre 022], [Nombre 033], and [Nombre02 006] is annulled…”. </span><span style="font-family:Arial">As can be extracted from the text transcribed above, the Third Chamber concluded that pieces of evidence numbers 543, 544, and 545 were lawful, just as the trial court had indicated. Specifically, the cassation body considered that since it was not proscribed by the legal system, there was no impediment to transferring the information related to BAC Bahamas Bank Limited, obtained in proceeding 04-005356-042-PE, known as Caja-Fischel, to the present case. Similarly, it concluded based on piece of evidence No. 413, that there was a correspondent relationship contract whereby BAC San José operated as the agent bank of the former. Thus, by upholding the claims made by the requesting body, the Chamber settled the objections raised by the defense counsel of [Nombre01 018] and by the defendant himself, since by reason of the first (the legitimacy of the evidence transfer carried out), it is ruled out that this information should weigh only in the case c.c. Caja-Fischel, or that it was necessary to comply in</span><span style="font-family:Arial; font-style:italic"> this matter</span><span style="font-family:Arial"> with the requirements that </span><span style="font-family:Arial; font-style:italic">had already been satisfied in the original proceeding</span><span style="font-family:Arial"> (e.g., the judicial resolution that authorized the lifting of bank secrecy). Also because of the foregoing, it loses interest that upon translating the letter rogatory from English into Spanish, a piece of data contained in the one sent to the Bahamas was omitted, namely, the indication that the evidence would be used exclusively to elucidate the facts investigated in the case c.c. Caja-Nombre01 (cf. folios 6,628 and 6,6524 of volume XV). This is to the extent that such affirmation, which in the letter rogatory is inserted in the section destined to explain the relevance of the requested evidence (f. 6,628 front, second paragraph), does not change the fact that within Ley No. 7425 there is no rule that prohibits transferring bank information obtained in one proceeding to another, the sole scenario in which, </span><span style="font-family:Arial; font-style:italic">according to the Third Chamber</span><span style="font-family:Arial">, the transferred evidence would be unlawful. Likewise, by reason of the second (the existence of the correspondent relationship contract between BAC San José and Bahamas Bank Limited, which the cassation body reasonably derives from the evidence, particularly from No. 413), the local bank had no impediment whatsoever to hand over the questioned information. Finally, the Third Chamber, in ordering the remand, directed this court to analyze pieces of evidence 543, 544, and 545, </span><span style="font-family:Arial; font-style:italic">“…based on their comprehensive assessment in consonance with the evidentiary elements incorporated into the debate”</span><span style="font-family:Arial">. Regarding this, two considerations must be made. The first is that the appellant is not questioning the examination that the trial court made of such evidence, or the conclusions derived from them, but rather their legitimacy, upon understanding that they were obtained and incorporated into the procedure irregularly, a point that, as already explained, was settled in cassation, concluding that the evidence is lawful. The second is that indeed, as the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial"> indicated on folio 15,323 front of volume XXXI and the Third Chamber suggests in its resolution, specifically on folios 176,472 front to 176,473 back, the cited evidence also lacks the essentiality that is claimed, since there are other pieces of evidence that allow establishing the transit of the funds, namely, the information gathered in relation to the transactions carried out by [Nombre01 058]. through the various entities that make up the Grupo Financiero Cuscatlán, of special importance, piece of evidence No. 132, folios 28 to 33, which this chamber has had in view and where appear </span><span style="font-family:Arial; text-decoration:underline">the three original investment certificates and their respective coupons, all with the received stamps of BAC San José and the endorsement of BSJ International Bank</span><span style="font-family:Arial">. Thus, the grounds must be rejected, not only because pieces of evidence numbers 543, 544, and 545 have been considered lawful by the Third Chamber which, in its core, confirmed what was stated by the trial court, but also because there are other pieces of evidence that likewise allow associating [Nombre01 018] with the admission of the certificates in question. For the foregoing reasons, the objection is declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXIX.-</span><span style="font-family:Arial"> Due to the existing relationship, grounds four through seven, eleven, and twelve of the appeals will be resolved jointly. </span><span style="font-family:Arial; font-weight:bold">Fourth ground. Absence of the detailed determination of the fact that the court deems proven, in violation of article 369 subsection b) of the CPP.</span><span style="font-family:Arial"> On this point, the claim is: </span><span style="font-family:Arial; font-style:italic">“…Considerando X of the judgment, which appears on Folio 1555 in fine and following, refers to the so-called Probative, Intellectual, and Legal Reasoning regarding the conduct of [Nombre01 018], culpability, and penalty to impose. It begins by describing, by way of a synopsis, a criminal act that derives, according to the majority Judges, from the offer and subsequent payment of a gift (dádiva) to the defendant [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, culminating in a conviction for the crime of illicit enrichment. One must ask then: if the conviction of [Nombre01 018] is for the crime of illicit enrichment, which requires only the admission of gifts, what importance does the topic of an offer have for the purposes of the criminality of the conduct? The Judges refer on Folio 1561 that the money received by [Nombre01 018] was in the character of a gift, which reinforces that the basis for the conviction is solely that presumed receipt and not for acceptance of any promise, much less for carrying out actions of any kind as a counterpart for the gift he received, according to the majority vote. But on Folio 1567, the Judges again refer to the topic of a promise, when they indicate that a REMUNERATIVE PROMISE was made to [Nombre01 018] similar to the one made to [Nombre01 064] and that this panorama, the Judges indicate, IS DETERMINING FOR THE RESPONSIBILITY OF [Nombre01 018]. So, Honorable Magistrates, what is it that the Majority Judges consider proven: the remunerative promise or the receipt of the money, or both? If in point C) beginning on Folio 1567 it is determined that a meeting was held between [Nombre01 018], [Nombre01 063], and [Nombre01 041] and its only proof is an invoice showing the payment of a bill at the café [...] indicating on its back that it is for a breakfast at 8:21 a.m. on August 17, 2000, as indicated by piece of evidence 81, it is evident that for the Judges it is fundamental to prove that the meeting was held and that [Nombre01 274] made a remunerative promise to [Nombre01 018], since otherwise said meeting would have no importance whatsoever and they would only use their time to prove the presumed receipt of the gifts and not their offering…” </span><span style="font-family:Arial">(F. Telf01 and Telf02 front). The appeal states that to overstate the actions of [Nombre01 018], </span><span style="font-family:Arial; font-style:italic">“they have him accept a remunerative promise derived from a meeting with [Nombre 041]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, which is proven with only a voucher for a card payment...”</span><span style="font-family:Arial"> (Telf04 front). The judges recognize that there is no direct evidence regarding “</span><span style="font-family:Arial; font-style:italic">the offer of a remunerative promise from [Nombre01 041] to [Nombre01 018]</span><span style="font-family:Arial">”, but they conclude that this is extracted from the direct evidence available on the preceding and subsequent facts. This, says the appellant, is incredible. There is no proof in this regard; no one stated what was said in that meeting, hence it could have been about any other topic. No one saw them in that place; no one testified about the occurrence of the meeting, but the mere existence of the voucher, for the majority vote, is proof of the meeting. With that same thesis, the defense counsel ironically remarks, [Nombre01 041] could have stated in the expense justification that he lunched with [...] Nombre25 and that would be sufficient proof of it. He adds that this leaves a doubt as to which fact is considered proven, specifically, whether the existence of the remunerative promise from [Nombre01 041] to [Nombre01 018], the receipt of the gifts, or both. There is a difference between seeking to consider the remunerative promise as proven, or merely the receipt of the gift. </span><span style="font-family:Arial; font-weight:bold">Fifth ground. Insufficient reasoning of the judgment and failure to observe the rules of sound criticism, with violation of articles 142, 184, and 369 subsection d) of the CPP. </span><span style="font-family:Arial">It again questions considering an offer of a gift as proven without proof thereof, using only the expense justification for [Nombre01 041]'s card, which speaks of a breakfast with [Nombre01 018] and [Nombre01 063]. This proves that [Nombre01 041] justified the expense, but does not prove that the meeting actually took place. Even less can the content of the meeting and its consequences be derived from that evidence: </span><span style="font-family:Arial; font-style:italic">“It is not possible for the receipt of the gifts to presume their offering, as this would erase the difference between the acceptance of gifts for an act performed and bribery or aggravated corruption. Not just because the gift is received does it mean it was previously offered...”</span><span style="font-family:Arial"> (F. 172,755 front). </span><span style="font-family:Arial; font-weight:bold">Sixth ground. Insufficient reasoning of the judgment and failure to observe the rules of sound criticism, with violation of articles 142, 184, and 369 subsection d) of the CPP.</span><span style="font-family:Arial"> In this ground, it is stated: </span><span style="font-family:Arial; font-style:italic">“…Considerando X-D of the judgment running from Folios 1572 to 1579 attempts to demonstrate that [Nombre01 018] received a fractional payment of the offered gift on a specific date. It has already been indicated that the majority Judges erroneously consider that in a meeting held on August 17, 2000, at 8:21 a.m., [Nombre01 018] was offered payment of 0.5 percent of the contract obtained..., just so, with such precision and detail (See folio 1570).</span> For the Judges, that precise but false determination was important, with the aim of pinning on [Nombre01 018] a fractionated receipt of a gift previously accepted and offered. Let us see. The criminal offense in Article 346 subsection c) for which the Judges sanction [Nombre01 018] establishes that the crime is committed when gifts are admitted... WHILE REMAINING IN THE EXERCISE OF OFFICE. [Nombre01 018] ceased to be a Deputy in the Legislative Assembly on April 30, 2002, so any receipt of monies by [Nombre01 091] after that date would fall outside the criminal classification. The so-called first investment certificates are indicated to have been deposited in [Nombre01 018]'s accounts in the month of January 2002, when he was a Deputy in the Legislative Assembly, which generates other problems of classification and proof that will be discussed later. But for now we will limit ourselves to the transfers and alleged gifts sent after April 30, 2002, that is, delivered to [Nombre01 018] when he was no longer remaining in the exercise of office and therefore without meeting the characteristics of criminality, under the terms of the criminal offense described. But fully straining the evidence, the majority Judges state that the payments after April 30 were offered and accepted by [Nombre01 018] since that August 17, 2000. As we already demonstrated, it is impossible to derive from the evidence that such a meeting was held and, should its existence be accepted, it is materially impossible to know what was discussed in it, and even less to specify its content in detail with the exactness that the Judges derive…" (F. 172.756 recto). As the appellant explains, since it is not possible to establish that [Nombre01 041] offered fractionated payments to [Nombre01 018], any receipt of money made after May 1, 2002, would not be criminal, as [Nombre01 018] no longer held the office for which the gifts were allegedly offered to him. He reiterates that the judgment violated the rules of sound criticism by concluding that a promise of fractionated payment existed from [Nombre01 041] to [Nombre01 018] and that this promise can only be proven through an "imaginative and creationist" act by the judges. The section ends by pointing out that the existence of a fractionated payment promise cannot be demonstrated and that therefore, given that for payments after April 30, 2002, [Nombre01 018] was not exercising public office, his conduct would be unpunishable. Seventh ground. Non-observance and erroneous application of substantive law, with infringement of article 369 subsection j). According to the court, a fractionated remunerative promise in gifts existed from [Nombre01 041] to [Nombre 018], which is not real. [Nombre01 018]'s legislative term extended from May 1, 1998, to April 30, 2002 (folio 1557 of the judgment) and therefore, the gifts he supposedly received after that latter date would be unpunishable. On the other hand, the judgment attempts to prove that [Nombre01 091], through [Nombre02 058], paid gifts to [Nombre01 018]. On the issue, it is stated: "… Let us observe in detail each one of those so-called deliveries, given that the first two were made, according to the Judges, between January and February 2002, that is, when [Nombre01 018] was still a Deputy, which we will address in another section. We will now analyze the deliveries from the third to the seventh. Third delivery: detailed at folios 1584 to 1587. According to the Judges, the funds leave [Nombre01 058]'s account and arrive via [Nombre01 063] into the possession of [Nombre02 018] in January and October 2003 for a total amount of 55,000 dollars. On those dates, [Nombre01 018] no longer occupied the position of Deputy, since from May 8, 2002, he was the Executive President of the CCSS, a position absolutely different from that of Deputy, with no relationship to it and even less so to the activities of [Nombre01 091]. Therefore, it is clear that, if such transfers and deliveries of money existed, which is not the case, as will be analyzed later, they would be atypical, because they were received when he no longer remained in the exercise of office, which is an element of the criminal offense of illicit enrichment. Fourth delivery: detailed at folios 1587 to 1598. According to the Judges, 19 investment certificates delivered by [Nombre01 018] to [Nombre01 158] exist that are not included in the accusation, so they cannot serve as a basis for conviction, but in any case all of them are issued after May 1, 2002, as recorded at Folio 1594, since the first one is from July 2 of that year, more than two months after [Nombre01 018] left the office of Deputy. But in any case, the receipt of such investment certificates is not an act charged. The only one reported is number [Valor 041] for 50,000 dollars described at folio 1596 and, according to the Judges, it is delivered to [Nombre01 018] on May 5, 2003, more than a year after having left the office of Deputy, so its alleged receipt would become atypical. Fifth delivery: detailed at folios 1598 to 1607. According to the Judges, through the company [Nombre 215], [Nombre 018] receives three transfers for 55,000 dollars on July 17, 2003, 275,000 dollars on October 27, 2003, and 100,000 dollars on January 7, 2004, as they indicate at folio 1598 in fine. All of them are evidently after May 1, 2002, and would have been transferred, if it were true that they were directed to [Nombre01 018], 14 months, 17 months, and 20 months later, respectively, after having left the office of Deputy, so their eventual receipt would become atypical. Sixth delivery: detailed at folios 1607 to 1608. In a completely malicious manner, the transfer of October 27, 2003, pointed out in the previous point is repeated, with the spurious aim of inflating and super-dimensioning [Nombre01 018]'s conduct. Seventh delivery: detailed at folios 1608 to 1613. Again, maliciously, the transfer of January 7, 2004, is repeated. These are not seven deliveries but five that the Judges analyze; the other two are repeated with malicious intentions. But what is worse is what they indicate at Folio 1610, when they state that all those sums they attribute to [Nombre01 018] as having received come from a single act of illicit enrichment and that he receives them at the end of 2001 and beginning of 2002. UNBELIEVABLE. It is evidenced that the sixth and seventh deliveries did not exist, as they are nothing more than repetitions of the previous ones. It is demonstrated that it is impossible to prove that a remunerative promise existed in August 2000 for the total of the gifts and that it was therefore a matter of fractionated payments of a total gift already admitted since the year 2000, as the Judges maliciously indicate…" (F. 172.757 and 172.758 recto). Any payment, gift, or transfer of money that [Nombre01 018] allegedly received after May 1, 2002, is an atypical act, because he no longer occupied the office of deputy, a position in which, according to what is stated in the ruling, he received those sums of money. Eleventh ground. The judgment is insufficient in the reasoning for the determination of the quantum of the penalty imposed on [Nombre01 018] and in the denial to grant the conditional execution of sentence, with violation of articles 59, 60, and 71 of the Penal Code and 367 and 369 subsections d) and i) of the C.P.P. The court imposed on [Nombre01 018] the penalty of two years of imprisonment (understood as the maximum penalty) for a crime of illicit enrichment and denied him the benefit of conditional execution of sentence. The reasoning for both decisions is insufficient. Regarding the first, the defendant's comprehension of his acts, his intelligence, his condition as a deputy, and his capacity to conceal his illicit enrichment were considered. Now, the appellant claims that "if he comprehended and acted accordingly" is a condition that must be taken into account to pronounce guilt and not to impose the penalty. Furthermore, his condition as a deputy is not a circumstance that justifies aggravating the sanction, since this would lead to the maximum penalty having to be imposed every time a deputy is found guilty. See also that [Nombre01 018] did not carry out any activity as a deputy in the exercise of his functions, so the public function was not endangered, nor the assets of the public treasury. Regarding the amount of the gift, which the judges estimate at more than 500 thousand dollars, he questions that the sums they presume he received after he ceased to be a deputy are considered, in clear infringement of article 346 of the Penal Code: "Thus, if that sum were excluded, the 30,000 dollars estimated to have been received in the Bahamas account, whose legality is questioned, and the 40,000 that are constituted by the certificates whose delivery is debated in this appeal would remain, but even accepting as a hypothesis the receipt of the gift while he remained in the office of Deputy, the amount of it would be 15 percent of what the judges calculate, so the penalty would never be the maximum established..." (F. 172.763 recto). Regarding what occurred when he was no longer a deputy, not being punishable, it could also not be considered to increase the penalty. He adds that what is related to his daughter's vehicle and the alleged use of the accounts of [Nombre01 063] and [Nombre01 158] refer to amounts supposedly received when the defendant did not occupy the office of deputy. Likewise, he deems that the rejection of the benefit of conditional execution of sentence regulated by articles 59 and following of the Penal Code is not reasoned. Even though it is a benefit and not a right for the accused, the court should have reasoned the denial, as the Constitutional Chamber has stated in ruling No. 3624-96. See that the judges, to justify the denial, only mention the criminal participation from the Legislative Assembly, the so-called social damage caused, and the amount of the gift allegedly received. The appellant points out: "… Let us proceed to analyze that reasoning: with that thesis, Deputies who are convicted cannot receive the benefit, which improperly applies a criminal law of the author and not of the act. It is enough to be a Deputy to deny the benefit. It refers to social damage caused, when in the same judgment a pronouncement about the compensatory civil action Nombre03 that claims that alleged damage is omitted, so it is contradictory that the alleged existence of the damage is used and it is not resolved upon. Regarding the amount of the gift, that has no relation to the requirements for the benefit to proceed, which are incorporated in Article 60 of the Penal Code, to which the Court did not refer at any time, it completely ignored it, as if it did not exist, and denied the benefit praetorianly without any legal support…" (F. Telf03 and Telf05 recto). For the foregoing, he requests that the penalty imposed be annulled, or at least the rejection of the benefit of conditional execution of the sentence. Twelfth ground. The judgment does not apply the rules of sound criticism nor does it reason at all and departs from the provisions regulating the penalty of disqualification, when it sanctions [Nombre01 018] with twelve years of disqualification from obtaining and exercising public employments, positions, or commissions, with infringement of articles 142, 184, and 369 subsections d) and i) of the C.P.P. and 50, 57, 58, and 358 of the Penal Code. Even though it is the judges' power to sanction with disqualification, its application, Nombre02 like its duration, must be reasoned, which does not happen in this case. The issue was justified in two lines, at folio 1,625 in fine. A disqualification of twelve years was imposed and the reasons why this penalty is deemed appropriate are not explained, nor is the choice of that quantum. It is not explained why it covers all "public employment" and not only those for popular election, which was the one [Nombre01 018] occupied when committing the crime. The appellant considers that the ruling is null on this point, due to a total lack of reasoning.

XXX.- The criticisms must be partially upheld, in the terms and with the consequences that will be stated. For the purpose of achieving greater expository clarity, it is necessary to reproduce some of the facts charged by the requesting body and those that the court considered proven in relation to [Nombre01 018]: "…220) It was Nombre02 that between the months of July and August 2000, the accused [Nombre01 018] and [Nombre01 063] held meetings with the indicted [Nombre02 041] and the indictee [Nombre01 078], in which the topic of the lack of opening by I.Nombre72 to public tenders in the area of cellular telephony continued to be discussed. In one of these encounters, the accused [Nombre01 041] and the indictee [Nombre01 078] offered the accused [Nombre01 018], in consideration of his office, the delivery of a gift consisting of money if the opening to public tenders at the I.C.E was achieved, equivalent to 0.5% of the contract obtained. 221) By virtue of the foregoing, the accused [Nombre01 018] shows his acquiescence to the offering of the gift and decided to share it with [Nombre01 063], for having achieved the contact with the corruptors. 222) As had been agreed, once the award of the abbreviated public tender was achieved in favor of [Nombre01 060], the accused [Nombre01 041], by common agreement with the indictee [Nombre01 078], began the fractionated delivery of the gift that had been promised to the co-defendant [Nombre01 018] in consideration of his office. 223) To this end, they used the payment modality employed with other of the accused I.C.E officials, channeling the funds through the accused [Nombre01 028] and his company [Nombre01 058]. 224) Thus, on December 10, 2001, the accused [Nombre01 028], according to the plan previously drawn up with the indictee [Nombre01 078] and the accused [Nombre01 041], from the money previously transferred by the company [Nombre01 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058] in the Cuscatlán International Bank and on December 10, 2001, acquired with that sum a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18 Identificacion19 and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial entity to deposit the securities in account No. [Valor 060] in the Nombre01 of BSJ International Bank with Banco San José. 225) On January 15, 2002, the accused [Nombre01 018], while he remained in the exercise of the office of deputy, admitted the gift that was presented to him in consideration of his office upon receiving at BAC San José the three previous certificates, which totaled thirty thousand dollars ($30,000). On that same date, he began the enjoyment of the illicit money received; to this end, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] with BAC San José and $161,725 corresponding to the principal and coupon of investment certificate No. 720016762, in order to reach the total of two hundred thousand dollars ($200,000) at BAC International Bank, an amount with which he acquired in his name, certificate No. 720096897 from the same banking entity in the Bahamas. 226) Likewise, with the funds indicated in the fact preceding the anterior, the indicted [Nombre01 028] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he caused to reach [Nombre01 063]. Once in his possession, [Nombre01 063] endorsed the certificates with the respective interest coupons and deposited them in account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of participations in Sama Fondo de Ingreso Mensual Dólares. 227) On January 10, 2002, the accused [Nombre01 041] continued with the delivery of the illicit gift to the benefit of the accused [Nombre01 018], following what was agreed upon about the distribution of the funds with the indicted [Nombre02 028]. In this way, he applied a debit to the account of [Nombre 058] No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them numbers 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These securities were delivered by [Nombre01 028] to [Nombre02 018], who admitted them on February 11 of that same year, the date of their maturity, immediately endorsed them and deposited them in his account No. [Valor 047] with BAC San José, together with the four interest coupons for a total of $129.16. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002, and issued to bearer, between the days January 9 and February 11, 2002, were delivered to [Nombre01 063], who upon their maturity between the 11th and 13th of February 2002 endorsed them and deposited them in his account at Scotiabank, S.A. No. [Valor 061], with their respective interest coupons that amounted to $64.58. 228) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002, and issued to bearer, between the days January 9 and February 11, 2002, were delivered to [Nombre01 063], who upon their maturity between the 11th and 13th of February 2002 endorsed them and deposited them in his account at Scotiabank, S.A. No. [Valor 061], with their respective interest coupons that amounted to $64.58. 229) Without specifying a date but at the end of the year 2002, after the accused [Nombre01 018] admitted the gift that was delivered to him in consideration of his office as deputy, without the total delivery thereof having been made and without there being a prior collaboration agreement, he devises a procedure to avoid being directly linked to the crime and to bypass the controls of the national banking system. To do this, he requested from the accused [Nombre01 063] an account number to receive the gift partially; knowing the illicit origin of the money, [Nombre01 063] provided him with bank account number No. [Valor 059] with Banco Internacional de Costa Rica (BICSA) at the Agency in Miami, data that [Nombre01 018] transmitted to [Nombre02 041], who in turn referred it to the accused [Nombre02 028]. 230) In such a manner, on January 16, 2003, the accused [Nombre01 028], through his company [Nombre02 058], ordered Cuscatlán International Bank & Trust, Co. Ltd., to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059] of the indicted [Nombre01 063], but destined for [Nombre01 018], by means of applying a decrement to the demand investment No. Identificacion21 for the cited sum. 231) With the accreditation of the fifty-five thousand dollars ($55,000) in his favor, on January 30, 2003, the accused [Nombre01 063] acquired at BICSA the bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus the interest coupons for $74.44 for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and with a maturity date of February 28, 2003.

Subsequently, the defendant [Nombre01 063] delivered them, after endorsement, to the defendant [Nombre01 018]. 232) Once this part of the gift was accepted through the intermediation of [Nombre01 063], the co-defendant [Nombre01 018], on March 3, 2003, redeemed the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) into his account No. [Valor 047] with BAC San José; he paid eight thousand dollars ($8,000) toward his BAC San José credit card [Valor 050] and retained in cash the sum of nine thousand nine hundred dollars ($9,900). 233) To complete the delivery to the defendant [Nombre02 018] of the fifty-five thousand dollars ($55,000) received into his account, the defendant [Nombre01 063], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited into the account of [Nombre02 018] No. [Valor 047] with BAC San José on October 28 of that same year. 234) In this manner, the defendant [Nombre01 063] helped ensure that the accused [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment obtained for having accepted the gift delivered by the employees of [Nombre01 091].

235) On an unspecified date but approximately at the beginning of 2003, the defendant [Nombre01 028] continued with the delivery of the remainder of the gift originating from [Nombre01 060] via [Nombre 058]., in favor of the accused [Nombre02 018]. The latter, with the aim of evading banking controls and concealing the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; thus, [Nombre01 018], concealing the illicit origin of the funds and the reason for their receipt, asked [Nombre01 158], a trusted friend, to lend him a bank account outside of Costa Rica, claiming he needed it because money from the sale of a property would be deposited and he wished to keep it in an account outside the country. Thus, [Nombre01 158] provided him with the bank account registered in the name of his company [Nombre 215], No. [Valor 041] with BAC Panamá. 236) On April 2, 2003, the accused [Nombre02 028], by means of a note, requested a debit be applied to account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was No. Identificacion22 for fifty thousand dollars ($50,000) with a 33-day term. This certificate was delivered to [Nombre01 018], who, with the aim of evading being discovered in his criminal activity, gave it to [Nombre01 158] on May 5, 2003, so that he could deposit it into the account of [Nombre02 215]. In turn, [Nombre01 158] entrusted [Nombre01 225], a trusted employee, with carrying out the corresponding transaction; thus, [Nombre01 225] redeemed that certificate together with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution he obtained cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian company [Nombre01 215]., which was deposited into account No. [Valor 041] with BAC International Bank Panamá on May 6; in that way, [Nombre01 018] succeeded in illicitly increasing his assets with the money originating from [Nombre01 091], via [Nombre 058].

237) The accused [Nombre01 018] informed the co-defendant [Nombre01 028] of the account number in the name of [Nombre01 215] to which subsequent deliveries should be sent. Thus, on July 17, 2003, the defendant [Nombre01 028], as legal representative of [Nombre01 058]., continued with the delivery of the illicit gift in favor of [Nombre01 018]; to that end, he again instructed the banking institution to apply a debit to his company's account and to transfer, to the order of [Nombre02 215]. into account No. [Valor 041] with BAC Panamá, the sum of fifty-five thousand dollars ($55,000). 238) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Nombre02 215]., on an unspecified date, but shortly before August 11, 2003, the defendant [Nombre01 018] asked [Nombre01 158] for help in purchasing a vehicle for his daughter [Nombre01 243]. [Nombre01 158] contacted the sales manager at Purdy Motor Agency, with whom he coordinated the purchase of a Toyota RAV 4 model vehicle and gave her the telephone number of the defendant [Nombre01 018] so they could arrange the purchase.

239) In order to pay for the vehicle, the defendant [Nombre01 018] asked [Nombre01 158] for a check for its value. Thus, [Nombre01 158] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from checking account No. [Valor 041] of his represented company [Nombre 215] with BAC International Bank Panamá, payable to Banco San José, and he entrusted [Nombre01 225] with using it to obtain a cashier's check in the name of Purdy Motor for the stated sum. On August 11, 2003, [Nombre01 018] formalized the transfer of the RAV 4 vehicle, Toyota, red, four-door, license plate [Valor 052], into the name of [Nombre01 243], to whom he gave it as a gift. 240) Continuing with the disposition of the money originating from [Nombre01 060], the defendant [Nombre 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre01 215] to combine it with money from another source and acquire a home in the [...].

241) On October 27, 2003, the defendant [Nombre01 028] ordered that a debit for one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) be applied to the account of [Nombre 058]. with Banco Cuscatlán, and that a transfer be made to account No. [Valor 041] of [Nombre 215]., with BAC International Bank Panamá, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the defendant [Nombre01 018], a deposit that was made effective on October 29, 2003. 242) Finally, on January 7, 2004, the accused [Nombre01 028], as legal representative of [Nombre 058]., instructed the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum to send a transfer of one hundred thousand dollars ($100,000) to the account of [Nombre 215]., No. [Valor 041] with BAC International Bank Panamá.

243) Based on the foregoing, the accused [Nombre01 028], through his company [Nombre 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] with Cuscatlán International Bank in favor of [Nombre02 215]., to account No. [Valor 041] with BAC International Bank in Panama, to be delivered to the defendant [Nombre 018], effective income that was reduced by $21.00 due to the application of bank fees, meaning four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, through this channel [Nombre02 018] accepted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). Furthermore, through [Nombre01 063] he also accepted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift on account of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 244) On the other hand, for having achieved the initial contact between him and the employees of the company [Nombre01 091], the defendant [Nombre01 018] voluntarily decided to give money to [Nombre01 063], as explained below. 245) On November 11, 2003, [Nombre02 018] asked [Nombre01 158] to use the money deposited by the company [Nombre 058]. into the account of his represented company [Nombre 215]. to obtain a cashier's check in favor of [Nombre02 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre01 158] issued check No. 008 for that sum and entrusted the transaction to [Nombre02 225], who purchased cashier's check No. 75741-8 from BAC San José in favor of [Nombre 063], for fifty-six thousand seven hundred forty-six dollars ($56,746).

246) After receiving the negotiable instrument from [Nombre01 158], [Nombre 018] delivered it to [Nombre 063], who on November 19, 2003, deposited it into account No. [Valor 051] with Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares. 247) On February 4, 2004, the defendant [Nombre01 018] again asked [Nombre01 158] to use the funds originating from the company [Nombre01 058]., deposited in the account of [Nombre 215]. at BAC International Bank of Panama, to obtain a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre02 063]; therefore, [Nombre01 158] issued check No. 010, with which [Nombre01 225], to whom the transaction was delegated, purchased cashier's check No. 75992-0 from BAC San José for the stated sum. After receiving it from [Nombre02 158], [Nombre02 018] delivered said check to [Nombre01 063], who cashed it on February 10, 2004.

248) Finally, [Nombre01 018] asked [Nombre01 028] to transfer, from the money originating from [Nombre01 091], the sum of fifty thousand dollars to [Nombre02 063]. Thus, on April 2, 2003, [Nombre01 028] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre01 028] delivered it to [Nombre 063], who redeemed it together with the accumulated interest of $121.45 and deposited the entire sum of money into account No. [Valor 048] with Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] with that institution. [Nombre01 063] added other money of unknown origin and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 249) Via [Nombre 215], [Nombre01 063] received, from the money accepted by [Nombre 018], the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21).” (F. 14,494 and 14,500 front, volume XXX, emphasis not in original). Regarding the proven facts, it is established that: “201) The defendant [Nombre01 018] held the status of public official as a result of popular election in which he was designated as a Deputy of the Legislative Assembly for the Partido Unidad Social Cristiana, for the constitutional terms from May 1, 1990, to April 30, 1994, and from May 1, 1998, to April 30, 2002. 202) In the exercise of his deputy status, the defendant [Nombre01 018] formed part of the joint legislative commission that was constituted following the social movement that arose against the legislative projects known as the “combo del I.C.E” and on April 4, 2000, he was appointed president of the Comisión Mixta Legislativa, taking a direct leading role in the political activity related to the telecommunications matter. 203) [Nombre01 063] also served as a public official from August 1, 1974, to September 27, 2004, holding a permanent position at the I.C.E., an institution where he worked in various positions, the last of which was as Deputy Head of Management in different units from December 1, 1996, to September 27, 2004, among them the ICETEL sub-management attached to the UEN de Servicios Internacionales and the UEN de Desarrollo Ejecución de Proyectos. During that period, Mr. [Nombre01 063] was a coworker of Mr. [Nombre01 128], who later stopped working at the I.C.E. and began working at the company [Nombre 091] Costa Rica, the local subsidiary of the corporation [Nombre01 091]. 204) Having previously learned that [Nombre01 063] knew the Jefe de Fracción of the PUSC, the defendant [Nombre01 018], Mr. [Nombre02 128] (at that time Director Comercial de cuentas de clientes at [Nombre01 091]) during the year 1999 made a telephone call to [Nombre01 063] to ask him to arrange a meeting between them. At that time, [Nombre01 091] sought to establish communication with important actors in the national political arena, among them deputies who were party faction leaders in the Legislative Assembly, in order to present [Nombre01 091]'s complaint against the direct purchase contract “ICE- ERICSSON\" for the acquisition of 83,000 cellular lines, considering that the I.C.E. was avoiding competitiveness among suppliers and technological improvements in mobile telephony. 205) As a result of [Nombre01 063]'s intervention, a first meeting took place between the defendant [Nombre01 018] and [Nombre01 128] at the end of 1999, in which the latter presented the public complaint against the aforementioned project. 206) Subsequently, in the year 2000, [Nombre01 091] continued with another public campaign of complaint against the I.C.E.'s reluctance to allow the development of cellular telephony through GSM technology and with the purpose of enabling that company to enter that field through public bidding. Therefore, following the same previous dynamic, starting in the months of March and April of that year, [Nombre01 128] arranged, through [Nombre01 063], new communication with the defendant [Nombre01 018], considering his status as deputy and party faction leader of the PUSC, which was the majority caucus during that legislative term, and his leading role in the area of discussion on the telecommunications issue. 207) On an undetermined date, but approximately during the first months of the year 2000, at the initiative of representatives of the company [Nombre01 091], the defendant [Nombre01 018], on account of his office, met with [Nombre01 128] on various occasions with [Nombre02 063] occasionally participating, in which the [Nombre01 091] employee raised the convenience of the opening by the Nombre04.Nombre72 to open bidding regarding the acquisition of cellular telephony and the benefits of GSM technology. He commented on the complaint filed by [Nombre01 091] before the Contraloría General de la República, as well as the need for it to receive real attention; a presentation made with the aim of seeking mechanisms to make its success feasible in the different political and administrative forums where the issue was discussed. Those meetings took place, for example, in the Legislative Assembly, in nearby cafes, or at the Hotel San José Palacio. 208) Without being able to establish the exact date, but between February and July of the year 2000, the accused [Nombre01 018], after several meetings with [Nombre01 128], requested that a meeting be held with his superiors, the defendant [Nombre01 041] and the convicted individual [Nombre01 078]. 209) It was thus that on August 17, 2000, the accused [Nombre01 018] and [Nombre02 063] held a meeting with the defendant [Nombre01 041] at Café [...], in which they continued discussing the issue of the lack of opening by the Nombre04.Nombre72 to public bidding in the area of cellular telephony. At one of these encounters, the defendant [Nombre01 041] and the convicted individual [Nombre01 078] offered the accused [Nombre01 018], in consideration of his office, the delivery of a gift consisting of money if the opening to public bidding at the I.C.E was achieved, equivalent to 0.5% of the contract obtained. 210) By virtue of the foregoing, the defendant [Nombre01 018] indicated his consent to the gift offering and decided to share it with [Nombre01 063], for having achieved the contact with the corruptors. 211) As had been agreed, once the award of the abbreviated public tender was achieved in favor of [Nombre01 060], the defendant [Nombre01 041], in common agreement with the convicted individual [Nombre01 078], began the fractional delivery of the gift that had been promised to the co-accused [Nombre01 018] in consideration of his office. 212) To that end, they used the method of payment employed with other accused officials of the I.C.E., channeling the funds through the defendant [Nombre01 028] and his company [Nombre 058]. 213) Thus, on December 10, 2001, the defendant [Nombre02 028], in accordance with the plan he had previously devised with the convicted individual [Nombre01 078] and the defendant [Nombre01 041], from the money previously transferred by the company [Nombre 060], issued check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Nombre 058]. at Cuscatlán International Bank and, on December 10, 2001, acquired with that sum a series of bearer investment certificates from Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial institution to deposit the instruments into account No. [Valor 060] in the name of BSJ International Bank with Banco San José. 214) On January 15, 2002, the defendant [Nombre01 018], while remaining in the exercise of the office of deputy, accepted the gift that was presented to him in consideration of his office by receiving at BAC San José the three previous certificates, which totaled thirty thousand dollars ($30,000).

On that same date, he began to enjoy the illicit money received; to that end, he instructed the banking entity to add to these funds eight thousand one hundred sixty-five dollars and twenty-three cents ($8,165.23) from his account No. [Valor 047] with BAC San José and $161,725 corresponding to the principal and coupon of investment certificate No. 720016762, in order to reach a total of two hundred thousand dollars ($200,000) in BAC International Bank, an amount with which he acquired in his name certificate No. 720096897 from the same banking entity in the Bahamas. 215) Likewise, with the funds indicated in the preceding fact, the defendant [Nombre01 028] acquired investment certificates No. 224-002-0037278 and No. 224-002-0037286 from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars ($10,000.00) each, issued to bearer and maturing on January 11, 2002, which he had delivered to [Nombre02 063]. Once in his possession, [Nombre01 063] endorsed the certificates with the respective interest coupons and deposited them in account No. [Valor 048] of Inversiones Sama S.A., with Banco Nacional, for a total of twenty thousand seventy-three dollars and eighteen cents ($20,073.18); he then requested a check for three thousand dollars ($3,000) and invested the remaining seventeen thousand seventy-three dollars and eighteen cents ($17,073.18) in the purchase of shares in Sama Fondo de Ingreso Mensual Dólares. 216) On January 10, 2002, the accused [Nombre01 041] continued with the delivery of the illicit gift in favor of the accused [Nombre01 018], following the agreement on the distribution of funds with the defendant [Nombre02 028]. In this way, he applied a debit to the account of [Nombre 058]. No. [Valor 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These instruments were delivered by [Nombre01 028] to [Nombre 018], who accepted them on February 11 of that same year, their maturity date, immediately endorsed them and deposited them in his account No. [Valor 047] with BAC San José, together with the four interest coupons for a total of $129.16. 217) Likewise, the other two certificates No. 224-002-0038517, 224-002-0038568, maturing on February 11, 2002 and issued to bearer, between January 9 and February 11, 2002, were delivered to [Nombre02 063], who upon their maturity between February 11 and 13, 2002, endorsed them and deposited them in his Scotiabank, S.A. account No. [Valor 061], with their respective interest coupons amounting to $64.58. 218) On an unspecified date but toward the end of 2002, after the accused [Nombre01 018] accepted the gift that was delivered to him in consideration of his office as deputy, without the full delivery having been made and without there being a prior collaboration agreement, he devised a procedure to avoid being directly implicated in the crime and to bypass the controls of the national banking system. To that end, he asked the accused [Nombre01 063] for an account number to partially receive the gift, and [Nombre01 063] provided him with bank account number No. [Valor 059] with Banco Internacional de Costa Rica (BICSA) at the Miami Agency, information that [Nombre01 018] transmitted to [Nombre 041], who in turn referred it to the accused [Nombre 028]. 219) Thus, on January 16, 2003, the accused [Nombre02 028], through his company [Nombre 058]., ordered Cuscatlán International Bank & Trust, Co. Ltd. to transfer fifty-five thousand dollars ($55,000) to account No. [Valor 059] of [Nombre 063], but intended for [Nombre01 018], by applying a decrease to the demand investment No. Identificacion21 for the cited sum. 220) With the fifty-five thousand dollars ($55,000) credited to his benefit, on January 30, 2003, [Nombre02 063] acquired at BICSA bearer certificates Nos. 21792, 21793, 21794, 21795, all for an amount of eight thousand nine hundred twenty-eight dollars and seventy-five cents ($8,928.75), plus interest coupons for $74.44 for a total of thirty-five thousand seven hundred eighty-nine dollars and forty-four cents ($35,789.44) and maturing on February 28, 2003. Subsequently, [Nombre01 063] delivered them, after endorsement, to the accused [Nombre01 018]. 221) Once this part of the gift was accepted with the intermediation of [Nombre01 063], the co-defendant [Nombre02 018], on March 3, 2003, liquidated the aforementioned certificates and deposited the sum of seventeen thousand eight hundred eighty-nine dollars and forty-four cents ($17,889.44) in his account No. [Valor 047] with BAC San José; he paid eight thousand dollars ($8,000) toward his BAC San José credit card [Valor 050] and kept the sum of nine thousand nine hundred dollars ($9,900) in cash. 222) To complete the delivery to the defendant [Nombre02 018] of the fifty-five thousand dollars ($55,000) received in his account, [Nombre02 063], on October 20, 2003, purchased cashier's check No. 160258 issued in his name by BICSA for the sum of nineteen thousand seven hundred ninety-five dollars ($19,795), which he endorsed and deposited in the account of [Nombre01 018] No. [Valor 047] with BAC San José, on October 28 of that same year. 223) In this way, with the intervention of [Nombre01 063], the accused [Nombre02 018] obtained the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), as part of the illicit enrichment for having accepted the gift delivered by the employees of [Nombre01 091]. 224) On an unspecified date but approximately at the beginning of 2003, the defendant [Nombre01 028] continued with the delivery of the rest of the gift originating from [Nombre01 060] via [Nombre 058]., in favor of the accused [Nombre02 018]. The latter, with the aim of evading banking controls and concealing the income that increased his assets without valid justification, sought a bank account abroad to receive the sums; thus, [Nombre01 018], concealing the illicit origin of the funds and the reason for their receipt, asked [Nombre01 158], a trusted friend, to lend him a bank account outside of Costa Rica, claiming he needed it because he was going to receive money from the sale of a property and wished to keep it in an account outside the country. Thus, [Nombre01 158] provided him with the bank account registered in the name of his company [Nombre 215]. No. [Valor 041] with BAC Panamá. 225) On April 2, 2003, the accused [Nombre02 028], by means of a note, requested the application of a debit to account No. [Valor 012] of [Nombre 058]. at Banco Cuscatlán, for the sum of two million four hundred fifty thousand dollars ($2,450,000) and the issuance of 18 investment certificates, among which was contemplated No. Identificacion22 for fifty thousand dollars ($50,000) with a term of 33 days. This instrument was delivered to [Nombre01 018], who, with the aim of evading detection in his criminal activity, on May 5, 2003, gave it to [Nombre01 158] to deposit it in the account of [Nombre02 215]. In turn, [Nombre01 158] entrusted [Nombre01 225], a trusted employee, to carry out the corresponding procedure; thus, [Nombre01 225] liquidated that certificate together with the interest coupons for $116.45 at Banco Cuscatlán, and at the same banking institution acquired cashier's check No. 16987-7 for fifty thousand one hundred sixteen dollars and forty-five cents ($50,116.45) in favor of the Panamanian-origin company [Nombre01 215]., which was deposited in account No. [Valor 041] with BAC International Bank Panamá on May 6; in this way, [Nombre01 018] succeeded in illicitly increasing his assets with the money coming from [Nombre01 091], via [Nombre 058]. 226) The accused [Nombre01 018] informed the co-defendant [Nombre02 028] of the account number in the name of [Nombre01 215] where subsequent deliveries should be sent. Thus, on July 17, 2003, the accused [Nombre01 028], as attorney-in-fact of [Nombre01 058]., continued with the delivery of the illicit gift in favor of [Nombre01 018]; to this end, he again instructed the banking entity to apply a debit to his company's account and transfer to the order of [Nombre01 215]. to account No. [Valor 041] at BAC Panamá, the sum of fifty-five thousand dollars ($55,000). 227) With one hundred five thousand one hundred sixteen dollars and forty-five cents ($105,116.45) at his disposal in the account of [Nombre01 215]., on an unspecified date, but shortly before August 11, 2003, the accused [Nombre01 018] asked [Nombre01 158] for help in purchasing a vehicle for his daughter [Nombre02 243]. [Nombre02 158] contacted the sales manager of the Purdy Motor Agency, with whom he coordinated the purchase of a Toyota RAV 4 model vehicle and gave her the telephone number of the accused [Nombre01 018] so they could arrange the purchase. 228) In order to pay for the vehicle, the accused [Nombre01 018] asked [Nombre01 158] for a check for its value. Thus, [Nombre01 158] issued check No. 003 for the sum of twenty-three thousand seven hundred dollars ($23,700) from the checking account No. [Valor 041] of his represented company [Nombre 215] with BAC International Bank Panamá in favor of Banco San José, and entrusted [Nombre01 225] to use it to acquire a cashier's check in the name of Purdy Motor for the indicated sum. On August 11, 2003, [Nombre01 018] formalized the transfer of the RAV 4 vehicle, Toyota, red, four doors, license plate [Valor 052], in the name of [Nombre01 243] to whom he gave it as a gift. 229) Continuing with the disposition of the money coming from [Nombre01 060], the defendant [Nombre 018] used the remaining eighty-one thousand four hundred eleven dollars and forty-three cents ($81,411.43) available in the account of [Nombre01 215] to combine it with money from another source and acquire a dwelling in the [...]. 230) On October 27, 2003, the accused [Nombre01 028] ordered that from the account of [Nombre 058], with Banco Cuscatlán, a debit be applied for one million seven hundred fifty-eight thousand eight hundred seventy dollars ($1,758,870) and that a transfer be made to account No. [Valor 041] of [Nombre 215]., with BAC International Bank Panamá, for the sum of two hundred seventy-five thousand dollars ($275,000), so that this money would be received by the defendant [Nombre02 018], a deposit that was made effective on October 29, 2003. 240) Finally, on January 7, 2004, the accused [Nombre 028], as attorney-in-fact of [Nombre 058]., instructed the Private Banking Department of Banco Cuscatlán to apply a debit for two hundred thousand dollars ($200,000), and from that sum to send a transfer for one hundred thousand dollars ($100,000) to the account of [Nombre 215]., No. [Valor 041] with BAC International Bank Panamá. 241) According to the foregoing, the accused [Nombre01 028], through his company [Nombre 058]., transferred a total of four hundred eighty thousand one hundred sixteen dollars and forty-five cents ($480,116.45) from his account No. [Valor 012] with Cuscatlán International Bank in favor of [Nombre02 215]., to account No. [Valor 041] with BAC International Bank in Panama, to be delivered to the accused [Nombre 018], an effective receipt that was reduced by $21.00 for the application of bank commissions, that is, four hundred eighty thousand ninety-five dollars and forty-five cents ($480,095.45) were credited; and in investment certificates from Banco Cuscatlán he received seventy thousand two hundred thirty-eight dollars and ninety-three cents ($70,238.93); that is, through this channel [Nombre02 018] accepted five hundred fifty thousand three hundred sixty dollars and thirty-eight cents ($550,360.38). On the other hand, through [Nombre01 063] he also accepted the sum of fifty-five thousand five hundred eighty-four dollars and forty-four cents ($55,584.44), completing the receipt of the gift by reason of his office for the total amount of six hundred five thousand nine hundred forty-four dollars and eighty-two cents ($605,944.82). 242) On the other hand, for having made the initial contact between him and the employees of the company [Nombre01 091], the defendant [Nombre01 018] voluntarily decided to deliver money to [Nombre01 063], as explained below. 243) On November 11, 2003, [Nombre02 018] asked [Nombre01 158] to use the money deposited by the company [Nombre 058]. into the account of his represented company [Nombre 215]., to acquire a cashier's check in favor of [Nombre02 063] for the sum of fifty-six thousand seven hundred forty-six dollars ($56,746). [Nombre01 158] issued check No. 008 for that sum and entrusted the procedure to [Nombre02 225], who purchased at BAC San José bank cashier's check No. 75741-8 in favor of [Nombre 063], for fifty-six thousand seven hundred forty-six dollars ($56,746). 244) After receiving the negotiable instrument from [Nombre01 158], [Nombre 018] delivered it to [Nombre 063], who on November 19, 2003, deposited it in account No. [Valor 051] of Puesto de Bolsa de Inversiones Sama, to invest it in the public growth fund in dollars with the acquisition of 52,700.21 shares. 245) On February 4, 2004, the defendant [Nombre01 018] again asked [Nombre01 158] to use the funds originating from the company [Nombre01 058]., deposited in the account of [Nombre 215]. at BAC International Bank of Panama, to acquire a cashier's check for twenty-one thousand dollars ($21,000) in favor of [Nombre02 063]; therefore, [Nombre01 158] issued check No. 010 with which [Nombre01 225], who was delegated the procedure, purchased cashier's check No. 75992-0 from BAC San José for the indicated sum. After receiving it from [Nombre02 158], [Nombre02 018] delivered said check to [Nombre01 063], who cashed it on February 10, 2004. 246) Finally, [Nombre01 018] asked [Nombre01 028] to transfer, from the money originating from [Nombre01 091], the sum of fifty thousand dollars to [Nombre02 063]. Thus, on April 2, 2003, [Nombre01 028] applied a debit from account No. [Valor 012] and acquired certificate No. 224-002-006218-3 from Banco Cuscatlán de Costa Rica for the sum of fifty thousand dollars ($50,000). On May 5, 2003, the maturity date of the instrument, [Nombre01 028] delivered it to [Nombre 063], who liquidated it together with the accumulated interest of $121.45 and deposited the entirety of the money in account No. [Valor 048] of Sama Fondos de Inversión S.A. to be credited to his account No. [Valor 051] with that institution. [Nombre01 063] added other money of unknown origin and acquired shares in the public growth fund in dollars for the sum of seventy thousand one hundred thirty-four dollars and sixty cents ($70,134.60) on May 7, 2003. 247) Via [Nombre 215], [Nombre 063] received from the money accepted by [Nombre 018] the sum of seventy-seven thousand seven hundred forty-six dollars ($77,746), and through [Nombre 058]., one hundred forty-five thousand two hundred fifty-nine dollars and twenty-one cents ($145,259.21), for a total of two hundred twenty-three thousand five dollars and twenty-one cents ($223,005.21).” (F. 15,477 to f. 15,487 front, emphasis not in original). The trial court, when analyzing the accusation, stated that it did not describe an improper bribery (cohecho impropio), since although reference was made to the offer of a gift and the acceptance of said offer by [Nombre 018], it did not mention another of the components of that criminal type, namely, the act proper to his functions that was expected of [Nombre 018]. The lower court (a quo) indicated: “Therefore, this court considers that regardless of whether the conduct described by the Prosecutor's Office in conclusions was proven or not (remuneratory promise for attending to the public), the truth is that the accusation does not contain such a description and, in application of the principle of correlation between accusation and sentence, that possibility could not even be evaluated. The Public Prosecutor's Office states that [Nombre01 018] had the duty to receive the public without charging them because political control corresponds to the Legislative Assembly; however, this is not an evidentiary matter, but rather one pertaining to the protection of the right of defense because no circumstance is indicated in the accusation, nor is it mentioned that there was a promise or that the gift was delivered to him for performing an act such as the one described (which was within his functions). And although logically if the basic criminal type does not apply, neither does the aggravating circumstance, in any case the contracting of the 400,000 cellular lines does not concern the administration where [Nombre01 018] served (that is, the Legislative Assembly). For this reason, rather, it is considered that the accusatory description corresponds to that of the crime of Illicit Enrichment (Enriquecimiento ilícito), but before evaluating the reasons for determining that typological adjustment, the issue of the alleged tacit repeal of the criminal type is addressed ...” (F. 16,055 and 16,056 front). Such a conclusion, which was not the subject of challenge by the Public Prosecutor's Office, is correct, since indeed, the accusation did not contemplate what the act proper to his functions was that the corruptors expected from [Nombre01 018], a typological element that is of extreme importance, as it allows differentiating improper bribery from other figures, for example, from proper bribery (cohecho propio), or from some even more complex ones that can become its complement, since additional purposes are sought (as occurs, for example, with the crime of aggravated corruption by bribery, whether proper or improper). Therefore, although certainly, in the accusation it was stated that [Nombre01 018] accepted the promise of remuneration, and even though the court deemed its content proven, the truth is that this question is irrelevant, since as is well recognized in the appealed judgment, it is impossible, or at least it is without violating the principle of correlation between accusation and sentence, to take as proven that [Nombre01 018] accepted that promise of remuneration in exchange for “receiving the public,” as the Public Prosecutor's Office indicated, to remedy the error contained in its accusation. Having clarified this, it should be recalled that the criminal type of illicit enrichment applicable in this case contemplated the acceptance of gifts that were presented or offered to the public official in consideration of his office, while he remains in the exercise of his post.

As explained in the sixth whereas clause, to which the appellant must refer, it is a criminal offense that provides for two distinct scenarios, namely, i) the acceptance of gifts (dádivas) presented and ii) the acceptance of gifts (dádivas) offered. In the first hypothesis, the presentation and receipt of the advantage and in the second, the offer and acceptance of it, must take place while the public official remains in the position in consideration of which the remuneration is presented or offered. This is a difference that, in matters such as the present one, is not trivial, since in the second scenario the crime is configured regardless of whether the active subject receives the economic remuneration, whereby this receipt constitutes a subsequent unpunishable act, which may take place after the public official has ceased to perform in the position. That said, it is important to emphasize that the trial court had it as proven that [Name01 018] was *offered* a gift (dádiva) and that he accepted it (f. 16,064 front, last paragraph, volume XXXIII). That is, at least in principle, the second scenario of those previously set forth would be configured. <span style="text-decoration:underline">In response to this, Mr. Villalobos Umaña claims that the aforementioned offer cannot be taken as proven. For this Chamber, he is correct</span>. Let us see. To determine the liability of [Name01 018] regarding illicit enrichment, the trial court weighed a series of circumstances described from folio 15,997 front to 16,054 front of volume XXXIII and which can be schematized as follows: **i)** [Name01 018] was a deputy of the Legislative Assembly from May 1, 1998, to April 30, 2002, and then, from May 8, 2002, to April 21, 2004, he was the executive president of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social); **ii)** as a deputy, he was part of the special joint commission that was formed after the protests over the so-called "ICE combo." The aim was for the aforementioned commission to issue a report and, as long as it did not, no legislative bill related to ICE would be processed. This is of interest, the trial court states, because in the management of [Name01 091], a document was seized called "New Telecommunications Law (ICE Combo), impact on [Name01 091] and actions to follow," which reveals the importance for the company of any action that could modify or affect the commercial expectations or contracts with the referred institution (f. 15,999 front); **iii)** [Name01 063] worked at ICE from August 1, 1974, to September 27, 2004, and was the liaison between [Name01 091] and [Name01 018]. The representatives of [Name01 091] approached the latter, thanks to the mediation of [Name01 063], to explain their concerns about the direct contracting carried out by ICE, which, according to them, excluded them from the market. The evidence accounts for this (expert report No. 428-DEF-443-05/05, evidence No. 630, PC06, file "White Book" and the statement of [Name01 128]); **iv)** it was ruled out, based on the testimonial evidence presented, that [Name01 018] had been a consultant for the company [Name 091], nor that he had had any commercial or labor relationship with [Name01 058] that would justify the receipt of the monies given to him. Moreover, [Name01 158] declared that this defendant told her he had earned some money with [Name01 091] in an easy way, since he had done nothing, and, according to the witness [Name01 116], [Name 041] spontaneously told him that he had paid bribes to public officials, among them [Name01 018]. Something similar occurs with [Name01 142], who pointed out that [Name01 041] acknowledged having paid gifts (dádivas) to public officials in the media. Finally, the company [Name 091] had within its hiring policies a prohibition against contracting public officials as advisors. **v)** Based on the statement of [Name 128], it was established that [Name 018] was informed about the issue of mobile telephony and of [Name01 091]'s interest in eliminating direct contracting without bidding. [Name01 091] had conducted two public and denunciation campaigns, one to oppose the contracting of lines to Ericsson in 1999 and another in 2000 regarding GSM technology, with contact having existed with [Name01 018] since 1999. There were several meetings with the then-deputy, and on one occasion, [Name01 018] asked [Name01 128] to speak with his superiors, a meeting that, according to the witness, did take place. **vi)** The trial court considered that from what was said by [Name01 128], it can be inferred that [Name01 018] was contacted to discuss the elimination of the contracting and the opening of the bidding process, which leads to the topic of the 400,000 cellular lines. This confirms the version of [Name02 064], in the sense that the offer of the gift (dádiva) had to do with the issue of mobile switching centers and GSM technology, and in that regard, there are indications that allow one to glimpse that a remunerative promise was also made to [Name01 018] under modal and temporal circumstances similar to that made to [Name01 064], except that while the latter was called by [Name01 078], it was [Name02 018] who asked to speak with the superiors of [Name01 128]. Furthermore, the payments were also made to him through the same channels as to other defendants. **vii)** There is documentation that accounts for the fact that on August 17, 2000, at the café [...], [Name01 041] met with [Name 018] and [Name 063]; **viii)** [Name01 144], a messenger for the company [Name01 091], said he had taken envelopes sent by [Name01 041] to the accused [Name01 022], [Name 001], [Name 018], and [Name01 028], to their homes and offices. The secretary of [Name01 041] said that envelopes were sent to ICE and to the defendants and that she knew their content, however, *"...this does not exclude that [Name01 144] took envelopes that were not those she knew of; envelopes that also had characteristics different from those described as known to her person."* (F. 16,011 front). **ix)** As in the year 2000 the public campaign of [Name 091] in favor of public bidding and the migration to GSM technology began, also between July 2000 and December of that year, representatives of [Name01 091] met with deputies and other figures from the political sphere. It is then that the encounters with [Name01 018], [Name01 001], and [Name01 064] occurred, all of whom ultimately received monies originating from [Name01 060]. **x)** Finally, the *a quo* evaluated abundant documentary evidence, described from folio 16,014 front to 16,054 front, to demonstrate that the funds received by [Name01 018] came from [Name01 060]. <span style="text-decoration:underline">Having analyzed these indications and considering, of course, the hypothetical suppression of the testimony of [Name01 064] that must be performed, the undersigned conclude that it is not possible to take it as proven that on August 17, 2000, at the Café [...], [Name 041] extended a promise or offer of economic remuneration to [Name01 018]</span>. This Chamber has no doubt that the aforementioned meeting took place; however, this is not enough to prove the offer, especially considering that meetings were not unusual and that [Name01 128] himself acknowledged that part of [Name01 091]'s strategy was to meet with people from different sectors, including deputies. Likewise, the fact that [Name01 018] asked [Name01 128] to speak with his superior ([Name01 041]) is an amphibological indication, which even allows us to think of other hypotheses, for example, that it was this public official who, abusing his status as a deputy, forced or induced another to give or promise the patrimonial benefit he later received. Regarding the envelopes mentioned by the *a quo*, the same reflection made in previous whereas clauses must be applied. Their content is an unknown, and in that respect, it is speculation by the trial court to maintain that they contained documentation related to the crime. Along these lines, no one doubts that [Name01 018] received money from [Name01 060] in the same way as other defendants in this case did; however, *it is impossible to extract from this with a degree of certainty, and not probability, that a promise or offer of economic remuneration was conceived on the aforementioned 17th*, especially considering that the core evidence to prove the cited promise and its scope was the statement of the cooperating defendant [Name01 064], and this was considered illegal evidence. Without this account, as happens with the other defendants, other possibilities cannot be ruled out, as already indicated: that the monies were requested by the same public officials among whom is [Name02 018]; that it involved economic remunerations received without a prior promise, for an act performed or omitted in the capacity as a public official; or also, that the promise had a content different from that contemplated in the accusation. The range of possibilities, as can be seen, is extensive. The issue here is not the receipt of funds of irregular origin, a fact that was amply demonstrated, but rather establishing that before that receipt, specifically, on August 17, 2000, a promise or offer of economic remuneration was extended and that [Name01 018] accepted it. Not only is it impossible to take it as proven that on the cited date a gift (dádiva) was promised to [Name01 018], even less so that it was in exchange for "serving the public" (an act proper to his functions which, according to the Public Prosecutor's Office in its conclusions, [Name01 041] expected from [Name 018], f. 16,055 front). Now, notwithstanding the error in the evaluation of the evidence, it is unnecessary to annul the ruling and order a new trial, since, as explained when examining the situation of other defendants, there is no prospect that additional elements of proof beyond those already existing can be incorporated, and in that regard, there is also no impediment to proceeding at this procedural stage to directly resolve what is appropriate, considering both the factual framework of the accusation and the facts that have been taken as proven and that remain unaffected after excluding the offer of a gift (dádiva). For, once the promise or offer is suppressed, what is necessary to have the crime of illicit enrichment as configured subsists, and therefore, to confirm the first-instance judgment insofar as it so declared. The criminal offense of enrichment has two modalities, as already stated, the *acceptance* of a gift (dádiva) *presented* and the *acceptance* of a gift (dádiva) *offered*. While it cannot be affirmed that [Name01 018] accepted a gift (dádiva) that *was offered to him*, it can be affirmed—as it was contemplated both in the accusation and in the statement of proven facts—that *this defendant accepted several economic remunerations that were presented to him in consideration of his office and while he held the position of deputy*. It is now appropriate to examine each of these remunerations. <span style="font-style:italic; text-decoration:underline">First delivery</span>: In proven facts No. 213 and 214, it is affirmed that on December 10, 2001, the accused [Name01 028], from the money previously transferred by the company [Name 060], drew check No. 301 for seven hundred fifty-five thousand one hundred twenty-three dollars ($755,123) against the account of [Name 058] at Cuscatlán International Bank and on December 10, 2001, acquired with that sum a series of bearer investment certificates with Banco Cuscatlán de Costa Rica, among which were Nos. Identificacion18, Identificacion19, and Identificacion20, each for the sum of ten thousand dollars ($10,000), and instructed the financial entity for the certificates to be deposited into account No. [Value 060] in the name of BSJ International Bank with Banco San José. Likewise, that on January 15, 2002, the accused [Name02 018], while remaining in the exercise of his position as deputy, accepted that gift (dádiva) that was presented to him in consideration of his office, by receiving at BAC San José the three previous certificates, which totaled thirty thousand dollars ($30,000). For the undersigned, these facts clearly constitute the crime of illicit enrichment, since the presentation of the gift (dádiva) occurred on the occasion of the position [Name 018] held in the Legislative Assembly, it also being the case that this presentation, like the acceptance of the economic advantage, occurred while he was serving as a deputy. <span style="font-style:italic; text-decoration:underline">Second delivery:</span> [Name01 018] was a deputy until April 30, 2002 (f. 15,998 front). In proven fact number 216, it is indicated that on January 10, 2002, [Name02 028] applied a debit to the account of [Name 058] No. [Value 012] with Cuscatlán International Bank for sixty thousand dollars ($60,000) and acquired six certificates, among them No. 224-002-003852-2, No. 224-002-003853-3, No. 224-002-003854-1, No. 224-002-003855-0 from Banco Cuscatlán de Costa Rica for ten thousand dollars ($10,000) each, issued to bearer. These certificates were delivered by [Name01 028] to [Name 018], who accepted them on February 11 of that same year—their maturity date—and immediately endorsed them and deposited them into his account No. [Value 047] with BAC San José, along with the four interest coupons totaling $129.16. This also constitutes a crime of illicit enrichment, as a gift (dádiva) was accepted on the occasion of the position, during the exercise thereof. <span style="font-style:italic; text-decoration:underline">Third and successive deliveries</span>: According to what is extracted from the proven facts, the third through seventh delivery of gifts (dádivas) to [Name01 018] occurred after he had left the position of deputy, whereby his actions (consisting of accepting those economic remunerations) are atypical. It is important to indicate that from the criminal offense under discussion, and in particular, from the scenario whereby a gift (dádiva) is *accepted* when *presented*, it is inferred that the acceptance must take place while the public official *exercises the position in consideration of which the economic remuneration is presented to him*, in this particular case, the position of deputy, it not being sufficient merely that he holds the status of public official. For this reason, it is irrelevant that from May 8, 2002, to April 21, 2004, [Name 018] was the executive president of the Costa Rican Social Security Fund (C.Nombre82). <span style="font-style:italic; text-decoration:underline">Consequences of the foregoing</span>. For this Chamber, the aforementioned decision <span style="text-decoration:underline">has no impact on the legal classification attributed to the facts that have been taken as proven</span>, since once the reference to the *promise or offer of a gift (dádiva)* is hypothetically suppressed, and, consequently, to the existence of a single economic remuneration that *was offered and paid in installments*, the necessary elements remain unaffected to take as proven at least the crime of illicit enrichment for which the trial court convicted [Name01 018], namely, that this defendant accepted the gifts (dádivas) that were presented to him due to his status as a deputy and, in particular, as president of the legislative commission that would address the topic of telecommunications, all of which occurred while he held the referred position. As we have seen, it was taken as proven that on January 15 and February 11, 2002, he accepted several bearer investment certificates. Specifically, on January 15, 2002, three certificates for ten thousand dollars each (proven fact No. 214) and on February 11, 2002, four certificates, also for an amount of $10,000 each (proven fact No. 216). <span style="text-decoration:underline">It is important to note that although for this court, not one, but two illicit enrichments in material concurrence are configured, the</span> <span style="font-style:italic; text-decoration:underline">a quo</span> <span style="text-decoration:underline">considered that a single crime was configured, a decision that was not challenged by the requesting body, and therefore, it cannot be modified to the defendant's detriment</span>. <span style="text-decoration:underline">Regarding the remaining gifts (dádivas) transferred to [Name01 018], the situation is different</span>. As we have already explained, because they were presented during the year 2003 and early 2004, that is, some time after [Name01 018] left the position of deputy, *their receipt is atypical*. We refer to the economic remunerations described in proven facts numbers 219) to 241), and which, in a few lines, are related to what was received by [Name01 018] through the account of [Name01 063] at Banco Internacional de Costa Rica in Miami ($55,584.44, cf. proven facts No. 219 to No. 223); an investment certificate for $50,000 that was delivered to [Name01 018] by [Name01 028] and which, according to the proven facts, he asked [Name01 158] to deposit into the account of [Name01 215] (fact No. 225), and finally, the monies that entered to him through the bank account of the aforementioned company—[Name 215]—in Panama (proven facts No. 224 to 241). This situation, which has no bearing on the legal classification, since as indicated *supra*, the trial court convicted for a single crime of illicit enrichment that was configured from the moment [Name01 018] accepted the gifts (dádivas) that were presented to him when he was still a deputy, does have an impact on the imposed penalty, since the judgment applied the maximum extreme provided for in the criminal offense (two years of imprisonment), after considering, among other aspects, *the total amount received by [Name01 018]* and not just what was accepted while he held the post of deputy (f. 16,066 front, volume XXXIII). In addition to this, as the appellant denounces in the twelfth ground, the *a quo* also imposed the penalty of disqualification without explaining the reasons for that decision (which is confirmed by a simple reading of the abovementioned folio). In summary, and for the foregoing, the lower court's judgment remains unaffected insofar as it declared [Name01 018] the responsible perpetrator of a single crime of illicit enrichment, <span style="text-decoration:underline">clarifying however</span> that this conviction only has to do with the economic remunerations accepted by this defendant on January 15 and February 11, both in 2002 (proven facts No. 214 and 216). The judgment is annulled insofar as it imposed on [Name01 018] a penalty of two years of imprisonment and disqualification for 12 years from obtaining and holding public jobs, positions, or commissions. The case is remanded to the trial court so that, with a new panel and due reasoning, it proceeds to determine the *quantum* of the corresponding sanction.

**XXXI.- Eighth ground. Erroneous evaluation of the evidence in violation of the rules of sound criticism, infringing articles 142, 184 and 369 subsection d) of the Criminal Procedure Code (CPP)**. In this section, the appellant points out: *"... Considering Clause X-D refers to what it calls the second delivery of the gift (dádiva) to [Name01 018]. The majority opinion incorporates into its reasoning the thesis that [Name01 018] received six investment certificates from [Name01 091] through a delivery made by the company [Name 058]. First, attention must be drawn to the error the Judges incur by indicating that it involves six certificates, as they refer to Folio 1579, when in reality they are 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 [Name 058] from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. In Folio 1580, the Judges state that those certificates were delivered by the accused [Name01 028] to the defendant [Name01 018] and that the latter accepted them from the former on February 11, their maturity date, and immediately endorsed them and deposited them into his account at BAC San José. The Judges refer to evidence 417, which only demonstrates that [Name01 018] endorsed the certificates and deposited them into his account, but in no way proves that [Name01 028] delivered them to him or the date on which such an event occurred, and this makes the reasoning null as irrational and contrary to the rules of sound criticism. These are bearer instruments, which circulate by mere delivery and whose transfer occurs without the need for an endorsement on the back of the document, pursuant to Article 712 of the Commercial Code. This is what is called simple tradition, and therefore it cannot be recorded who delivered the certificate to its possessor, and that is the meaning of its designation as BEARER. Even for this reason, the certificate is not replaceable in case of loss, as ruled by numeral 719 of the same Code, since the legitimate possessor is not recorded. If [Name01 028] acquired the certificates issued on January 10, 2002, and endorsements on the back of the documents are not recorded, as they cannot be, and these appear deposited in the account of [Name02 018], the only thing demonstrated by this is that the certificates were delivered by someone through simple tradition to [Name01 018], but in no way that this person was [Name 028], as the Judges adventurously state..."* (F. 172,758 to 172,759 front). In this ground of the appeal, it is affirmed that a month elapsed between the moment [Name01 028] withdrew the certificates and the moment they were deposited into the account of [Name01 018], making it possible that the former delivered them to any other person, who in turn to another, and so on, step by step, until reaching [Name01 018], without it being possible to presume thereby that [Name01 028] gave them to [Name01 018]. The judges, in support of their position, cite article 717 of the Commercial Code, which was repealed in 1990 by law No. 7201. In any case, this norm stated that the certificate belongs to whoever has it in their possession, which no one has questioned. Likewise, that good faith and just title are presumed, as is appropriate in application of the principle governing movable property. But it cannot be derived from this norm that the initial acquirer must be deemed to be the one who delivered the certificate to the depositor. He adds that the judges disregard the basic norms of commercial law when they affirm that *"... the absence of a chain of transferors determines that the certificate was transferred from the one who originated it to the one who 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 [Name01 028] to [Name01 018]"*. According to the judges, 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. The foregoing is only so in nominative instruments, which are transferred by endorsement, and not in bearer instruments, such as those being examined in this case. He adds that with bearer instruments, what is proper is for the chain of transferors to be absent, hence what the court finds lacking is precisely what occurs in this matter, that is, there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced that [Name01 028] was the one who delivered the documents to [Name 018]. He adds that another error of the court is pointing out that because the certificates have a legend on the back stating that they can only be deposited into the account of [Name01 018], this shows that [Name01 028] delivered them to him. For the appellant, one thing has nothing to do with the other.

[Nombre01 018] received the certificates from an undetermined person and endorsed the documents with that legend to deposit them in his account, without this being able to be related to [Nombre01 028]. According to the majority vote, since they were deposited in the same account as other transfers, this suggests that [Nombre01 028] gave them to him. However, this is nonsense, which would lead to the assertion that every sum that arrived in that account originates from [Nombre01 028]. In summary, the conclusion that it was [Nombre01 028] who delivered the certificates to [Nombre01 018] is a self-serving speculation that disregards the rules of commercial law and correct human understanding. Since such a situation cannot be proven, the acquisition of the certificates must be considered legitimate and legally correct and, consequently, the conduct of [Nombre01 018] would be unpunishable. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">XXXII.- The ground cannot succeed</span><span style=\"font-family:Arial\">: In the first place, it is important to note that the crime is considered established from the moment the accused accepted the first three certificates (Nº Identificacion18 Identificacion19 and Identificacion20), so the appellant's arguments </span><span style=\"font-family:Arial; text-decoration:underline\">that refer to the second receipt of certificates</span><span style=\"font-family:Arial\"> in no way modify what has been decided in the judgment. In the second place, although folio 16,020 front refers to 6 certificates, it is explained with absolute clarity that four of them are those related to [Nombre01 018] (f. 16,021 front), meaning the error alleged in the appeal does not exist. Finally, to disprove the court's conclusion that these four certificates were handed over by [Nombre01 028] to [Nombre01 018], the appellant sets aside a series of elements that are analyzed throughout the resolution in an integral and harmonious manner and that allow the cited circumstance to be reasonably demonstrated, namely: </span><span style=\"font-family:Arial; font-style:italic\">i)</span><span style=\"font-family:Arial\"> the four certificates were endorsed by [Nombre01 018], making it undeniable that he was their recipient; </span><span style=\"font-family:Arial; font-style:italic\">ii)</span><span style=\"font-family:Arial\"> [Nombre01 018] disposed of the funds by depositing them into his account and then merging them with the first three certificates he received from [Nombre01 058]; </span><span style=\"font-family:Arial; font-style:italic\">iii)</span><span style=\"font-family:Arial\"> these four certificates have the same characteristics as the three previously received, namely, they originate from Banco Cuscatlán, are bearer instruments, have a maturity of one month and one day, and [Nombre01 018], in a similar manner, exchanged them and deposited them into his account at Banco San José on February 11, 2002; </span><span style=\"font-family:Arial; font-style:italic\">iv)</span><span style=\"font-family:Arial\"> these certificates arise from a captación investment for $60,000.00 ordered by [Nombre 028] and which gave rise to a group of 6 certificates, 4 delivered to [Nombre02 018] and 2 to [Nombre 063] (in fact, the two exchanged by [Nombre01 063] are the one that precedes and the one that closes the numerical series, namely, Nos. 3851 and 3856), which is not a product of chance (f. 16,021 to 16,024 front). For this Chamber, from the foregoing circumstantial evidence (considered integrally) it follows that the certificates were also a gift (dádiva) given to [Nombre01 018] and accepted by him while he held the position of deputy. The defense elaborates an entire explanation to try to break the link connecting the certificates to [Nombre01 018], asserting that because they are bearer instruments, it is impossible to determine that it was [Nombre01 028] and not a third party who delivered them to the accused. However, this is an elaborate explanation that stems from a fragmented and biased analysis of the evidence, which in no way conforms to the most elementary rules of common experience. Again, these are not certificates whose funds have an unknown origin. On the contrary, they are certificates funded by [Nombre02 060], which were processed by [Nombre 058], under the same conditions as other gifts delivered in this matter, and even under the same conditions as those certificates previously received by [Nombre 018]; certificates that are endorsed and disposed of by him, deposited into his account and then combined with the funds he had previously received, also from [Nombre01 060], via [Nombre 058]. So much is Nombre02 that the defense itself admits this point when attempting to justify the receipt of the funds with a supposed consulting arrangement, the existence of which was soundly dismissed. Added to this, it is no coincidence that the payments were made in this way, since undoubtedly the defendants, including [Nombre01 018], are the main parties interested in trying to distance themselves from the illicit gains. Finally, for the purpose of establishing that those certificates were delivered to [Nombre01 018] on the occasion of his position, it is not an insignificant piece of evidence to consider that the other two certificates —from a series of six— were exchanged by [Nombre02 063], a person whose connection to [Nombre01 018] is more than demonstrated in the judgment and who was attributed with contacting him with the leaders of [Nombre01 091]. In short, only through a biased and fragmentary examination of the evidence, removed from the most elementary rules of common experience, could the defense's thesis be endorsed, to the effect that since the certificates are bearer instruments, it is impossible to establish a link between [Nombre01 058] and [Nombre01 018]. It is important to reiterate that although this defendant, after serving as a deputy during the period from May 1, 1998, to April 30, 2002, held the executive presidency of the Costa Rican Social Security Fund (specifically, from May 8, 2002, to April 21, 2004), the acceptance of sums proceeding from [Nombre01 060] while he was in this latter position cannot be considered constitutive of the crime of illicit enrichment (enriquecimiento ilícito) investigated and judged here, since what the criminal statute requires is that the gift </span><span style=\"font-family:Arial; font-style:italic\">be received while occupying the position that motivated its presentation </span><span style=\"font-family:Arial\">—in this case, that of deputy— </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\">and not any other. Furthermore, it should be noted that the accusation establishes a direct relationship between the gift and [Nombre01 018]'s status as a deputy, not Nombre02 with his status as executive president of the aforementioned autonomous institution, which would also allow discarding any possibility of including within the crime of illicit enrichment judged here, the gifts he accepted when he held that latter position. For all the reasons stated, the objection is rejected.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">XXXIII.- Ninth ground. A repealed criminal statute was applied, in disrespect of article 369, subsection i) of the CPP</span><span style=\"font-family:Arial\">. The appellant asserts: </span><span style=\"font-family:Arial; font-style:italic\">“… This representation maintains that Article 346, subsection 3) of the Penal Code was tacitly repealed by Article 32 of Ley 6872 of June 17, 1983, called the Law on Illicit Enrichment of Public Servants. Let us recall that the Penal Code came into force in 1971, in accordance with its Article 406, so by virtue of the principles of legal hermeneutics, when dealing with the same conduct, the subsequent law repeals the earlier one. Section 346, which is applied in this case, punishes those who accept gifts in consideration of their office with a prison sentence of six months to two years. Article 26 of Ley 6872 established the crime of illicit enrichment with a penalty of six months to six years. In principle, it is absurd for two criminal categories with the same denomination of criminality to exist in two different legal bodies, which reflects that the tacit legislative will was to render the categories of 346 of the Penal Code under the title of illicit enrichment without effect and replace them with those of Article 26 of that law with the same denomination. But if it is interpreted that criminal statutes with the same Nombre01 can exist in two different laws, it is clear that the legislator had two things in mind: to aggravate the penalty, increasing the maximum from two to six years, and creating the figure of punishment when the actions are carried out within the year following the cessation of office, which was not regulated in Article 346. That in principle justifies the change in regulation, but there is even more. Subsections a) and c) of Article 26 regulate conducts such as the acquisition of assets of any kind or nature, within which is evidently the bearer negotiable instrument or cash money, or enrichment per se, beyond their ordinary remuneration, which is a kind of catch-all or sponge concept that absorbs any receipt of moneys or assets not derived from their employment relationship with the State. The receipt of gifts is a form of enrichment or acquisition of assets, now with a higher maximum penalty and with the incorporation of the punitive rule for the year after the cessation of the service relationship. Therefore, the assertion of the Trial Court to the effect that these conducts of section 26 are totally different from those of Article 346, as it erroneously indicates on folio 1617, is not true. In support of our thesis, we must indicate that the Trial Court at no time makes a detailed analysis of the criminalized conducts to reach its conclusion, beyond listing them and copying them in a nice table, without any explanation, which it transcribes on folios 1619 to 1622. It does not elaborate on the reasons why it considers that they are different conducts, … Its error is such that it attributes the approval of subsections a) and c) of Article 26 to the Inter-American Convention against Corruption of the year 1996, when those texts were approved in 1983, THIRTEEN YEARS EARLIER. Once again, carelessness and lack of legal knowledge, which are repeated in the majority judgment. The other argument to uphold the validity of subsection 3) of Article 346 of the Penal Code is that, according to them, its numbering was modified by Article 185, subsection a) of Ley 7732 of December 17, 1997, which transferred it from 344 to 346. That assertion is ABSOLUTELY FALSE and again reflects the negligence and carelessness of the Judges. What section 185 of Ley 7732 does is create two new criminal statutes, under the category of Securities Crimes, without making any reference to section 346 nor expressly moving its numbering, so no one presumed its validity in said Ley 7732. It also maintains that Article 69 of Ley 8422 of October 6, 2004, recognizes the validity of Article 346 by repealing one of its subsections. What the Judges do not say, because it does not suit them, is that the Constitutional Chamber, in its Voto 11584-2001 of November 9, 2001, established that some of the subsections of 346 had been repealed since Ley 6872 of 1983, as has been stated, but that its express verification is the competence of other courts, understood to be criminal courts. But the Judges disrespect the Chamber's decision, as on many other occasions, and ignore it entirely; for them, all of section 346 is in force and they do not even take care to completely omit the constitutional criterion. Even the opinion of this defense regarding the existence of this vote is cited, but this does not merit the slightest comment from the Judges, possibly because it did not suit their purposes. The important thing about this 1983 repeal is that the alleged conduct of [Nombre01 018], which according to the judgment occurred between January 2002 and January 2004, would therefore be regulated no longer by 346 of the Penal Code, but by Article 26 of Ley 6872. However, since subsections a) and c) of that norm were declared unconstitutional by the Constitutional Chamber through resolution 1707-95 of 3:39 p.m. on March 28, 1995, they would not be applicable to the case, and the actions of [Nombre01 018] would become atypical. It is not until the entry into force of Article 45 of Ley 8422 of October 6, 2004, effective as of the 29th of that month, that the increase of patrimony in the exercise of office is criminalized again, which is not applicable to the acts charged because it is a substantive norm in force after those events, pursuant to Article 11 of the Penal Code…” </span><span style=\"font-family:Arial\">(F. 172,760 and 172,761 front). Finally, the appeal adds that the trial court criticized the defense for not citing decision Nº 205-1995 of the Third Chamber, Nombre02 suggesting that what was said in relation to it was a fabrication, when the truth is that the </span><span style=\"font-family:Arial; font-style:italic\">a quo</span><span style=\"font-family:Arial\"> mentioned it when explaining that there are subsections of article 346 of the Penal Code that were repealed, among them subsection 3), a repeal that occurred due to Ley Nº 6872, and Nombre02 requests that this be declared by this chamber. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">XXXIV.- The ground is not upheld</span><span style=\"font-family:Arial\">: The matter in question was also resolved by the Third Chamber, which, in relevant part, indicated: </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">“The ground is upheld.</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> The former article 346 of the 1970 Penal Code (current article 353 of the Penal Code), conceived the criminal type of Illicit Enrichment as residual, insofar as it could be applied only in the legal impossibility of proving other more serious categories against public officials, as deduced from the letter of the norm, which in the relevant part stated: “A public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years: 1) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">Accepts a gift</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">of any kind or the </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">promise of a gift</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">to assert the influence derived from his position before another official, so that the latter does or refrains from doing something related to his duties;/2) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">Uses for profit for himself or for a third party reserved information or data</span><span style=\"font-family:Arial; font-style:italic\"> of which he has become aware by reason of his position;/3) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">Accepts gifts</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">that are </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">presented</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">or </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">offered</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> </span><span style=\"font-family:Arial; font-style:italic\">to him in consideration of his office, while he remains in the exercise of the position; and /4) (REPEALED by article 69 of Ley N° 8422 Law against Corruption and Illicit Enrichment in the Public Function of October 6, 2004). The numbering of this article was Nombre02 modified by section 185, subsection a), of Law No. 7732 of December 17, 1997, which transferred it from 344 to 346)” (The supplied text does not belong to the original). However, with the entry into force of Ley Nº 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, the dilemma arose as to whether, with the entry into force of article 26 of the latter regulatory body, the aforementioned section 346 had been eliminated, since regarding its validity Ley 6872 was silent, or if, on the contrary, they are two norms that complement each other, given that ordinal 32 established, as part of the provisions for</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> the entry into force of the cited Law, the condition that stated: “…It shall be effective as of its publication and repeals and modifies the legal provisions</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline\">that oppose it</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">”</span><span style=\"font-family:Arial; font-style:italic\"> (The supplied text does not belong to the original), the full validity of article 346 must be understood from</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> an absence of tacit repeal, which emerges from the comparison of the criminal actions described in that criminal type with those regulated in norm 26 of Ley 6872, to determine their non-regulatory opposition and therefore their parallel subsistence in the Costa Rican legal system. Indeed, for the purposes of a better understanding, from the following comparative study it is possible to verify the variety of illicit conducts that both criminal types describe, without it being possible to infer any opposition between them as the only scenario in which the tacit repeal contained in section 32 of Ley 6872 can be applied: </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span>&#xa0;</span><span>&#xa0;</span></p><div style=\"text-align:center\"><table cellspacing=\"0\" cellpadding=\"0\" style=\"width:498.75pt; margin-right:auto; margin-left:auto; border:1pt solid #010101; border-collapse:collapse\"><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Typical Actions of the crime of Illicit Enrichment contemplated in article 346 of the Penal Code of 1970</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Typical Actions of the crime of Illicit Enrichment contemplated in article 26 of Ley 6872, Law on Illicit Enrichment of Public Servants of June 17, 1983, in force until Ley 8422</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Shall be punished with imprisonment from </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">six months to two years, a public official who, without incurring a more severely punished crime</span><span style=\"font-family:Arial; font-style:italic\">:</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">Shall incur the crime of illicit enrichment and be punished with imprisonment from </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">six months to six years</span><span style=\"font-family:Arial; font-style:italic\">, public servants who, in the exercise of a public office, or within one year following the cessation of their service relationship:</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">1) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Accepts a gift</span><span style=\"font-family:Arial; font-style:italic\"> of any kind or the </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">promise of a gift</span><span style=\"font-family:Arial; font-style:italic\"> to assert the influence derived from his position before another official, so that the latter does or refrains from doing something related to his duties;</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">2) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Uses for profit for himself or for a third party reserved information</span><span style=\"font-family:Arial; font-style:italic\"> or data of which he has become aware by reason of his position;</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">3) </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">Accepts gifts</span><span style=\"font-family:Arial; font-style:italic\"> that are </span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">presented or offered to him in consideration of his office</span><span style=\"font-family:Arial; font-style:italic\">, while he remains in the exercise of the position;</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">4) (REPEALED by article 69 of Ley 8422, Law against Corruption and Illicit Enrichment in the Public Function of October 6, 2004).</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:12pt\"><span>&#xa0;</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:12pt\"><span>&#xa0;</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">a) Acquire assets of any kind or nature, without being able to prove the lawful origin of the resources they have used for that purpose, except for their salary or sums they may legally earn,</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\"> (ANNULLED by resolution 1707-95 of fifteen hours thirty-nine minutes, on the twenty-eighth of March of nineteen ninety-five, of the Constitutional Chamber)</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:12pt\"><span>&#xa0;</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">b) Improve their economic situation under the circumstances described, having cancelled debts or extinguished obligations that affected their patrimony.</span></p></td></tr><tr><td style=\"width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">No similar description is set forth in this criminal type.</span></p></td><td style=\"width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top\"><p style=\"margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt\"><span style=\"font-family:Arial; font-style:italic\">c) Enrich themselves in any way exclusively as a consequence of the position, without accrediting the lawfulness of their increase in fortune and the verisimilitude of the sources of resources invoked.

(ANNULLED by Resolution of the Constitutional Chamber No. 1707-95 of 3:39 p.m. on March 28, 1995).</span></p></td></tr><tr><td style="width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">No similar description is set forth in this criminal offense.</span></p></td><td style="width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">ch) Those who consent to, facilitate, or intervene in any way, through their influence, knowledge, or function, in the enrichment of a third party, whether a public official or not.</span></p></td></tr><tr><td style="width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">No similar description is set forth in this criminal offense.</span></p></td><td style="width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">d) The same crime shall be committed and the same penalty shall be imposed upon the Nombre10 Nombre11 who enact or promulgate laws, decrees, agreements, or resolutions granting benefits for their exclusive advantage, or for their relatives up to the second degree of consanguinity or affinity.</span></p></td></tr><tr><td style="width:120pt; border-right:1pt solid #010101; border-bottom:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">No similar description is set forth in this criminal offense.</span></p></td><td style="width:358.5pt; border-bottom:1pt solid #010101; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">e) Also incurring in the crime defined in this article are public servants whose spouses, ascendants, or descendants by consanguinity or affinity up to the second degree enrich themselves without being able to provide reliable proof of the legality of the increase in their assets or fortune. For such purposes, the relative shall be considered a co-perpetrator or accomplice, in accordance with the rules established in the Penal Code </span><span style="font-family:Arial; font-weight:bold; font-style:italic">(ANNULLED by Resolution of the Constitutional Chamber No. 1707-95 of 3:39 p.m. on March 28, 1995).</span></p></td></tr><tr><td style="width:120pt; border-right:1pt solid #010101; padding:4.5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">No similar description is set forth in this criminal offense.</span></p></td><td style="width:358.5pt; padding:4.5pt 4.5pt 4.5pt 5pt; vertical-align:top"><p style="margin-top:0pt; margin-bottom:0pt; text-align:center; line-height:150%; font-size:10pt"><span style="font-family:Arial; font-style:italic">f) Likewise, any individual or legal entity that lends itself so that, through its means, the crime is carried out shall suffer the applicable penalties./When the crimes referred to in this law are carried out through a legal entity, or with its participation, liability shall be attributed to its legal representatives, managers, administrators, or directors who have participated in or consented to the action, without prejudice to the civil consequences of the crime also falling upon the company or corporation.</span></p></td></tr></table></div><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; font-style:italic">In accordance with the preceding table, it is possible to deduce that with Law 6872, Law on Illicit Enrichment of Public Servants, of June 17, 1983, in force until the enactment of Law 8422, of October 29, two thousand four, the crime of Illicit Enrichment (Enriquecimiento Ilícito) contemplated in former numeral 346 of the Penal Code, far from being tacitly repealed, remained in force, as the crime of Illicit Enrichment retained the description of criminal conducts that were not included in Article 26 of Law 6872. Note, verbi gratia, that the typical actions contemplated in cited numeral 346 included the acceptance of gifts (dádivas) presented or offered to the public official by reason of his office (Article 346, subsection 3)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> of the Penal Code); the acceptance and promise of a gift to exercise influence derived from the official's position (Article 346, subsection 1)</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> of the Penal Code); and the use for profit, for oneself or for a third party, of reserved information or data obtained by reason of the performance of public functions (Article 346, subsection 3) of the Penal Code),</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> while the actions contemplated in numeral 26 of Law 6872, Law on Illicit Enrichment of Public Servants of June 17, 1983, apart from increasing the penalty at its maximum limit and presenting the novelty of being applicable to subjects over whom the service relationship had already ceased within the previous year, presented the description of conducts diverse from those contained in Article 346 of the Penal Code, in which the terms: promises or presentation of gifts were not used, but rather it dealt with the judicialization of acts in which public officials had inexplicably improved their economic situation (Article 26 subsection b) of Law 6872); consented to, facilitated, or intervened in any way in the enrichment of a third party, whether a public official or not (Article 26 subsection ch) of Law 6872); in which the Nombre10 Nombre11 granted benefits for their exclusive advantage, or for their relatives up to the second degree of consanguinity or affinity, by enacting laws, decrees, agreements, or resolutions (Article 26 subsection d) of Law 6872); among others. In this manner, as both norms did not contradict each other, their described criminal actions remained in force, in accordance with the letter of numerals 32 of that same Law 6872 and the subsequent validity of Articles 69 and 70 of Law 8422, Law against Corruption and Illicit Enrichment in the Public Function, of October 29, 2004, which upon their entry into force expressly repealed only subsection 4 of the aforementioned Article 346 (Article 69 of Law 8422) and the Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983 (Article 70 of Law 8422), it being understood that said repeal must have been understood to include Article 26 of Law 6872, which proves that the legislator also recognized its simultaneous validity in our legal system and, therefore, had to decree the repeal of subsection four of the former Article 346 and of 26 of Law 6872 in its entirety. On this last topic, it must be recognized,-</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> just as the majority opinion of judgment 167-2011 did at the time-, that this Third Chamber, in ruling 205-F-1995, at nine o'clock, on April seventh, nineteen ninety-five, implicitly recognized the validity of subsection 2) of the former Article 346 of the Penal Code, when it reclassified the proven facts in a case brought to its knowledge from concusión to the crime of Illicit Enrichment, despite the fact that Law 6872 had already entered into force at that time. Likewise, that with the reform to the former Article 346 of the Penal Code, introduced in 2004 by Law 8422, subsections 1), 2), and 3) of said norm were not tacitly or expressly repealed, since ordinals 69 and 70 of the aforementioned law only expressly repealed the fourth subsection of that numeral and Law 6872 in its entirety, it being necessary to understand from the literal wording of both norms that the cited subsections 1), 2), and 3) are in force: "Article 69.-</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Repeal of subsection 4) of Article 346 of the Penal Code</span><span style="font-family:Arial; font-style:italic">. Subsection 4) of Article 346 of the Penal Code is hereby repealed. Article 70.-</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Repeal of Law No. 6872</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. The Law on Illicit Enrichment of Public Servants, No. 6872, of June 17, 1983, is hereby repealed" (The emphasis belongs to the original). See in the same sense, Legal Opinion 018-J-2000, of February seventeenth, two thousand, of the Procuraduría General de la República, in which regarding the draft Law against Corruption and Illicit Enrichment, which was being considered in the Permanent Commission of Government and Administration, it was also established: "…</span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">16.- Of the crimes</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">: </span><span style="font-family:Arial; font-style:italic">Through Chapter V of the Draft called 'Of the crimes', a series of criminal offenses are created whose common denominator is the fight against corruption, recreating a wide range of circumstances to which the official or public servant is commonly subjected./ It also provides for the total repeal of the Law on Illicit Enrichment of Public Servants (No. 6872), </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">which contains a series of criminal offenses similar to those proposed in the draft; but it must be noted that some illicit acts that are similar to those intended to be incorporated remain in force within the Penal Code</span><span style="font-family:Arial; font-style:italic">…" (The emphasis is ours)". On the other hand, it should be noted that the scope that the Court of Appeal grants to ruling 2001-11584, of eight hours fifty-three minutes, of November ninth, two thousand one, of the Constitutional Chamber, to disapply the former norm 346 of the Penal Code, does not derive from the text of the alluded judgment, since in it, regarding the argument of tacit repeal of the cited Article 346, used by the consulting legislators, it was established: "</span><span style="font-family:Arial; font-weight:bold; font-style:italic">Tacit repeal of Article 346 of the Penal Code. </span><span style="font-family:Arial; font-style:italic">Finally, Article 68 of the draft law is consulted, because said numeral introduces confusion related to the principle of legal certainty. The norm assumes the validity of the subsections it does not repeal, despite the fact that with the enactment of Law No. 6872 of June 17, 1983 'Law on Illicit Enrichment of Public Servants', the legislator had already provided for repeal in Article 32 of that law. </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">For the consultants, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are violated. Certainly, the provisions that conflict with Law number 6872 of June 17, 1983 were repealed in accordance with the provisions of its Article 32, but the determination of which provisions it affected and whether these included subsection 4) of Article 346, now repealed by Article 68 of the consulted draft, is not a question of constitutionality on which this court must render its opinion</span><span style="font-family:Arial; font-style:italic">…", that is, that jurisdictional body recognized the power of interpretation regarding the validity of such subsections as a discretionary faculty of the Judges, who, through the study of both normative bodies, could determine if they conflicted with each other, given that if those supposed contradictions were not verified, the norm of the former 346, with the exception of the fourth subsection, remained in force, denoting in the reasoning of the second instance that the Judges determined the non-validity of the norm based on supposed incompatibilities between both articles, although without specifically determining which were the contradictions or contrasting both norms in their study, as the Trial Court did at the time in the sub júdice case,</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> from folios 000016061 to 00016063 of volume XXXII of the judicial record. In sum, upon verifying in this case the defect of erroneous application of the former Article 346 of the Penal Code, it is appropriate to annul the judgment with respect to the defendant [Nombre01 018] and remand the present case to the Sentence Appeals Court, so that with a new panel, it may proceed according to law.". </span><span style="font-family:Arial">As can be observed, the validity of Article 346 subsection 3) of the Penal Code is an issue that was expressly decided by the Third Chamber, concluding that the trial court did not commit an error in concluding that this norm was applicable to the case under examination. It is a position that the undersigned must abide by when resolving the remand, but which in any case they also share, since the scope of application of Article 346 subsection 3) of the Penal Code and of the referenced numeral 26 do not coincide in their content. While the former contemplates the acceptance of the gift presented or offered in consideration of the public official's office during the exercise of the position, Article 26 mentioned defined something different, namely, a patrimonial increase whose lawful origin the public official could not prove. Thus, subsection a) of numeral 26 contemplated the acquisition of assets of any kind or nature without being able to prove their lawful origin, and subsection c), enrichment in any way, as an exclusive consequence of the office, without proving the legality of the increase in fortune and the plausibility of the sources of resources invoked. Whereas in Art. 346 subsection 3) of the Penal Code, the action is limited to the acceptance of the compensation or the promise thereof under certain circumstances (in consideration of the office and during the performance thereof), it even being plausible that the material receipt of the gift constitutes a subsequent unpunishable act (this is the case of the acceptance of the offered gift), in Art. 26 what is defined is the enrichment that actually took place, </span><span style="font-family:Arial; text-decoration:underline">where the determining factor is the impossibility of the public official to demonstrate the legitimate origin of the patrimonial increase experienced</span><span style="font-family:Arial">. Even though subsection c) speaks of enrichment as an </span><span style="font-family:Arial; font-style:italic">"exclusive consequence of the office"</span><span style="font-family:Arial">, it suffices to read the complete subsection to conclude that it contains a legal presumption, according to which all of the public official's assets that the latter cannot justify shall be considered obtained on the occasion of the office held. In other words, in this case the typical action is not to use the office to enrich oneself, but to increase one's assets without any justification, a hypothesis that, besides being clearly unconstitutional, is mutually exclusive with that provided in numeral 346 subsection 3) of the Penal Code. Therefore, the ground is declared without merit.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXV.- Tenth ground. Numeral 346 subsection 3) of the Penal Code was applied in violation of the binding interpretation of the Constitutional Chamber, in breach of Article 13 of the Constitutional Jurisdiction Law and subsections i) and j) of Article 369 of the C.P.P</span><span style="font-family:Arial">. In this section, the appellant states: " </span><span style="font-family:Arial; font-style:italic">The majority Judges considered that [Nombre01 018] received a gift by virtue of his office and that this is punishable based on Article 346 subsection 3) of the Penal Code regardless of whether or not he performed any action for the benefit of his alleged payer. If Article 346 subsection 3) of the Penal Code is considered to be in force at the date of the facts, the norm must be interpreted in accordance with what the Constitutional Chamber has ordered, in full respect of the binding nature of precedents indicated by Article 13 of the Constitutional Jurisdiction Law. The way in which that subsection 3) is drafted reflects that 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 or contrary to his functions. The mere receipt of the gift is already criminal. The Constitutional Chamber, since ruling 1707-95 cited, in its Considerando III, indicated that the prosecuting body must prove 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 defendant to prove its legality. For this, the Chamber relied on what was explained in Ruling 5171-93 and maintained it without any doubt, therefore declaring unconstitutional the norms of Law 6872 that had replaced the crime of illicit enrichment. But even clearer was the Constitutional Chamber in its Ruling 11584-01 of 8:53 a.m. on November 9, 2001, when it reviewed, through a facultative legislative consultation, the draft Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber expresses, in the drafting of Judge Nombre33, 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. This is important, since in the words of the Chamber, it is not enough that the official receives assets that increase his wealth, nor that this is proven; it is necessary that this increase comes from an illicit activity that cannot be the mere receipt but something more, since otherwise, the defendant would have to prove the origin of his increase, infringing the prohibition on the reversal of the burden of proof. This doctrine is fully applicable to the case file, since in this case the criminal offense of Article 346 subsection 3) penalizes the mere receipt of gifts without the prosecution needing to prove the illicit activity that motivates that receipt, with which the defendant, in his defense, must prove the origin of those funds, in violation of the exposed constitutional principles</span><span style="font-family:Arial">…". (F. 172,761 and 172,762 front). He reproaches the court for not applying </span><span style="font-family:Arial; font-style:italic">"the doctrine"</span><span style="font-family:Arial"> previously referenced, despite having been so requested. The interpretation made of the aforementioned Article 346, on the contrary, opposes the Political Constitution and is null for contravening Article 13 of the Constitutional Jurisdiction Law.</span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXVI.- The claim is not admissible: </span><span style="font-family:Arial">Contrary to what the appellant affirms, in the proceeding examined here, the burden of proof has not been reversed. Note that the prosecuting body, with abundant evidentiary elements, was able to prove that the gift that the defendant [Nombre01 018] received during the months of January and February 2002 was presented to him because of his status as a deputy and member of the commission in charge of telecommunications matters; that it came from the company [Nombre 091] (a supplier in that field) and, above all, that this economic compensation was accepted by [Nombre01 018] during the performance of that public office. Likewise, the trial court ruled out, in accordance with the rules of sound criticism, the defense's theory for the defendant, namely that the money was obtained for having provided advice to [Nombre01 091]: </span><span style="font-family:Arial; font-style:italic">"Up to this point, it is appreciated then that the defendant [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">was serving as a deputy of the Legislative Assembly and it is by virtue of that condition that the first approach by representatives of [Nombre01 091] occurs, with the purpose of forming his opinion on the topic of direct contracting at the ICE since the company [Nombre 091] considered that it caused their exclusion from the market. It is worth noting, immediately, that the defendant's legal representative (who did not testify, as is his right), has maintained that [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">provided advisory services</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-weight:bold; font-style:italic">to the company [Nombre01 091] without his condition as a deputy recognizing any prohibition against providing such professional service</span><span style="font-family:Arial; font-style:italic">. From such argumentation, it is important to firstly note how –implicitly– the defense of [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">acknowledges as true the accusation regarding the receipt of money coming from [Nombre01 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">via [Nombre01 058], and that the only thing it rejects is that it was in the nature of a gift, as it maintains that what was received was compensation for the provision of such services. Among the participants in the debate with similar experience in the Legislative Assembly, Messrs. [Nombre01 249], [Nombre01 250], and [Nombre01 251]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, among others, all agreed in more or less similar terms that deputies are not recognized a prohibition and that, in fact, some simultaneously exercise liberal professions. Nevertheless, as will be analyzed throughout this Considerando, the evidence taken determines completely the opposite, that is, that the money received was not for professional advice or anything resembling it, but simply and plainly was in the nature of a gift, moreover received and benefited from by [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">. Therefore, even if the accused [Nombre01 018] had denied it –which, as stated, he implicitly does not do, because by stating it was for a different cause, he admits the receipt of the money– with the body of evidence, it is confirmed that [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">received the cited money coming from [Nombre01 060] as a result of a gift and not for the payment of lawful compensation. Hence, it is irrelevant whether some of the witnesses expressed the legal possibility for the deputy to exercise a liberal profession or, alternatively, to engage in activities other than the deputy's function simultaneously. The foregoing because this is a statement by the declarants on a theoretical level, but they do not account for what occurred in the concrete reality of [Nombre01 018], which reflects something different from the theory. The expert Nombre97 stated that from the analysis of the banking documentation, it does not emerge that on the date of these facts [Nombre01 063] was a legislative advisor, nor was it established that [Nombre01 018] was an advisor to [Nombre01 091], or had any commercial or employment relationship with [Nombre 058]. Note that furthermore [Nombre02 091] already had a political strategist and, according to the evaluations and recommendations that [Nombre01 124]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">had made, it was decided to approach key actors in certain sectors, which, in practice, initially legal, ultimately resulted in the payment of such officials, among them [Nombre01 063]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">and [Nombre01 018]. There is also no reference to the existence of the alleged consultancy, but evidence to the contrary. Apart from what has been said, note that in the company [Nombre 091 252]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">expressed that all consultancies were done in writing and were recorded in the company, and therefore a verbal contract was not applicable when more than $700 thousand are paid; that he never sees a consultancy contract nor approves the delivery of this money. He indicated that all consultancy contracts over $10 thousand passed through his hands and this did not happen. [Nombre01 128], [Nombre01 132], and [Nombre01 111] also stated that the only advisor or political strategist was [Nombre01 124]. The witness [Nombre01 111] added that she was present throughout the entire process of contracting the 400,000 cellular lines and never saw [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, nor heard of an advisor with that name, nor that he had worked for the company [Nombre01 091]. On the other hand, [Nombre01 158], his friend for many years, neither saw him nor heard about such advisory service, but rather only sees him attending to his clientele in his private office. On the contrary, the version that [Nombre01 018]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">gives to [Nombre01 158] is that he earned some money with [Nombre01 091] in an easy way because he did nothing. With the cited body of evidence, while it is possible to affirm that the provision of professional services or distinct paid work is not incompatible with the office of deputy, since for the performance thereof no payment of a prohibition is recognized, the truth is that it is clear to the court that [Nombre01 018] did not act, under any circumstance, as an advisor to [Nombre01 091] and that the money received from said company was for the concept of a gift on the occasion of his condition as a deputy, which are two different things. Other reasons support the foregoing consideration: [Nombre01 142] says that [Nombre01 041] stated to the media that he gave gifts to public officials; [Nombre01 116]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">also indicates that spontaneously [Nombre01 041] stated that he paid bribes to public officials and among them mentions [Nombre01 018] and adds a fundamental aspect in the sense that [Nombre01 041] made such a revelation even before that information was revealed in the national press… Likewise, in the contracting rules of [Nombre01 091]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">there exists a prohibition for those who serve as advisors to be public officials; it is expressly indicated that public officials cannot be consulting agents.</span></p> Finally, when the scandal [Nombre01 158] comes to light, he relates that he speaks with [Nombre01 018], who had previously told him that the money came from the sale of a property in Jacob (sic), but who at that moment confesses that the money does not come from the sale of said property, but rather from the offer by [Nombre01 041] for a consultancy that he had carried out with [Nombre01 091] so that the latter would win the cellular phone bidding process, that [Nombre02 063] is an ICE engineer who had helped him with that, and that SNQC was the channel used for the delivery of the money. It is observed that in [Nombre01 018]'s narrative, although he maintains that the money's cause is the performance of a consultancy, he equally partially acknowledges that the receipt of money is related to his intervention in a cellular phone bidding process, the latter circumstance—as stated—which can be clearly inferred from the evidence; however, regarding the provision of the consultancy, it has already been extensively explained why this version is dismissed by this jurisdictional body." (Cfr. f. 16,001 to 16,004 front). Faced with this panorama, it is completely unfounded to argue that the trial court reversed the burden of proof, demanding that [Nombre01 018] demonstrate the lawful nature of the funds. Quite the contrary, their irregular origin was duly accredited through abundant circumstantial evidence described in the preceding considerandos (to which the appellant must adhere), circumstantial evidence that simultaneously allowed the a quo to also dismiss the thesis that the income was payment for a consultancy. Lastly, it is important to emphasize that [Nombre01 018] was not reproached for increasing his assets in an unjustified or suspicious manner (which would clearly be unconstitutional for placing the public servant in the situation of having to prove the lawful origin of his property). In reality, he was sanctioned for admitting or accepting gifts that were presented to him by the hierarchs of [Nombre01 091] by virtue of his condition as a deputy and, more specifically, for his role in the commission related to telecommunications matters, all of which occurred while he held that position. This also allows for a substantial difference to be drawn from the scenario analyzed by the Constitutional Chamber in resolution No. 2001-11584 cited by the appellant, since in that case, what was being weighed was the constitutionality of a bill where, indeed, the possession by a public official of unjustified assets—that is, without explaining their origin—was criminalized. On that occasion, the Constitutional Chamber stated:

"I.- In accordance with the provisions of Article 96, subsection b) of the Law of Constitutional Jurisdiction, this concerns a facultative consultation filed by ten Deputies; therefore, this Chamber will review only the specific points challenged by the consultants and not general aspects of the constitutionality of the Law containing the contested norm, as provided in Article 99 of the law governing this jurisdiction. In this sense, subsection c) of Article 45 of the consulted bill is excluded from this tribunal's analysis, since the consultants did not clearly indicate the reasons for which there are doubts or objections about its constitutionality.

II.- Regarding the content of the contested norms. The consulted norms are the following:

"Article 45.- Illicit enrichment.

Shall incur the crime of illicit enrichment and shall be punished with imprisonment of one to eight years, the person who, after assuming a public office, or that person who, with authority over the use, custody, administration, or exploitation of public funds, services, or goods, under any title or management modality, is proven to:

a. Be in possession of goods or in the enjoyment of rights, personally or through an intermediary individual or legal entity, whose value exceeds their legitimate and normal economic possibilities, or those of their spouse, partner, siblings, and other relatives up to the third degree of consanguinity or affinity.

b. Have paid debts or extinguished obligations that affected their assets, or those of their spouse, partner, siblings, and other relatives up to the third degree of consanguinity or affinity, under terms and conditions that exceed their legitimate and normal economic possibilities and those of the indicated relatives.

c. Have consented to, facilitated, or concealed as an intermediary person, the illicit enrichment of another, under the terms and scope of the previous subsections." "Article 46.- Illicit enrichment of relatives Shall be punished with imprisonment of one to eight years, the person who, being a spouse, partner, or relative up to the second degree of consanguinity of a public official, is proven to have increased their assets, under the terms indicated in the previous article." "Article 68.- Repeal of subsection 4) of Article 346 of the Penal Code Repeal subsection 4) of Article 346 of the Penal Code." III.- Regarding the principle of specificity of criminal norms. It is indicated in the consultation, and this tribunal renders its opinion on these norms, that Articles 45, subsections a) and b), and 46 of the bill do not correctly define the conduct intended to be repressed as a crime. For the consultants, the phrase in subsection a) of Article 45 "Be in possession of goods or in the enjoyment of rights" refers not to an action but to a state. Likewise, the phrases "whose value exceeds their legitimate and normal possibilities" and "under terms and conditions that exceed their legitimate and normal economic possibilities" provided in both subsections contain indeterminate economic concepts that prevent the judge from relying on objective criteria and hinder the understanding of the norm. These defects are also present in Article 46, by punishing the spouse, partner, or relative up to the second degree of consanguinity of a public official who has been proven to have increased their assets through the application, by the judge, of indeterminate economic concepts. The Chamber has referred to the principle of specificity in criminal matters on various occasions. In the ruling of sixteen hours twenty minutes of January fifteenth, nineteen ninety-one, it stated:

"Criminal types must be structured basically as a conditional proposition, consisting of a presupposition (description of the conduct) and a penalty consequence; the former must necessarily indicate, at least, who the active subject is, since in specific crimes they meet certain conditions (nationality, public employee status, etc.), and what the action constituting the infraction is (active verb). Without these two basic elements (there are other accessory elements that may or may not be present in the typical description of the act), it can be assured that no criminal type exists. From all the above, one can conclude the existence of a legislative obligation, for specificity to become a true citizen guarantee, proper to a democratic state of law, to use legislative techniques that correctly define the conducts intended to be repressed as a crime, since the absolute efficacy of the principle of reservation, which as indicated is established in Article 39 of the Constitution, is only achieved in cases where the judge's activity can be linked to the law, and it is clear that this, in turn, is entirely related to the greater or lesser degree of concreteness and clarity achieved by the legislator. The necessary use of language and its restrictions means that in some cases the same level of precision cannot be achieved; not for this reason can it be considered that the description presents constitutional problems in relation to specificity. Establishing the limit of generalization or concreteness demanded by the principle of legality must be done in each particular case." Also in ruling number 3625-93 of fifteen hours twenty-one minutes of July twenty-eighth, nineteen ninety-three, regarding specificity, the Chamber expressed:

"The consultation under study involves, as fundamental themes, the principle of specificity and that of prejudiciality in criminal matters. Regarding the first, it is important to previously analyze the principle of legality in the criminal sphere. The principle of legality in general is what defines the investiture, competence, and attributions of public authorities and circumscribes them to a framework of constitutionality and legality, outside of which they would become illegitimate and arbitrary. This principle, together with the general right to justice, constitutes essential presuppositions of due process, whose absence or violation entails constitutional transgressions. Among its most important corollaries is the principle of reservation of law, which in criminal matters acquires specific characteristics due to the necessary prior and clear definition of the actions that constitute a crime, with the purpose of safeguarding the legal certainty of citizens. Article 39 of the Political Constitution enshrines, among others, this principle, which in criminal matters means that the law is the sole creating source of crimes and penalties. This guarantee is directly related to specificity, which is an essential presupposition for considering the repressive activity of the State as legitimate and, in turn, determines that criminally relevant conducts are individualized as prohibited by a norm or criminal type. Specificity guarantees that no human action can constitute a crime unless defined as such by a prior law issued by the competent body." In the case of Article 45, subsections a), regarding specificity, the criminal type is defective, as the legislator failed to endow it with the necessary concreteness and clarity, according to the transcribed jurisprudential guidelines. The action constituting the infraction is not described, i.e., the verb is not recorded. Criminal types are those norms that are directed at a specific person and that correspondingly formulate the conduct that must be avoided. Through them, legally relevant interests for society are protected, and at the same time they limit the fundamental rights of the active subject, in most cases personal freedom, so they must be constructed with great rigidity. The phrase "is in possession of goods" does not describe the action of the subject for whom the repressed conduct is intended, which defers or transfers to the judge the task of configuring which actions are punishable, a task that actually corresponds to the legislator. Now, both in subsection a) and in b) of the cited article, it is said that they contain indeterminate concepts and consequently produce an injury to the guarantee of specificity. The phrase "under terms and conditions that exceed their legitimate and normal economic possibilities," due to its lack of definition and technical imprecision, leaves open the possibility that these "terms and conditions" are supplemented by the judge, as are the words "legitimate and normal economic possibilities," because it is not sufficient to reproach the active subject for the increase in assets without it bearing a relationship with the public official's activities. Also, in the case of Article 46, an infraction of the principle of specificity occurs, as it is intended to penalize the public official's relative for the mere fact of increasing their assets without describing any action to achieve that result and with the same degree of imprecision as subsections a) and b) of Article 45 because it refers to them. The defects noted in the drafting of the consulted articles affect the guarantee implied by the constitutional principle of specificity in criminal matters.

IV.- Regarding the principle of innocence. The consultants also consider that there is a violation of the principle of innocence, in its modality of the burden of proof, according to which it corresponds to the Public Ministry to demonstrate the facts attributed to the accused. The deputies making the consultation base the judgment of unconstitutionality on the fact that Articles 45 and 46 of the bill oblige the accused to have to demonstrate ex officio the source of their wealth to prove their innocence. On this topic, the Chamber has already indicated on various occasions:

"E) THE PRINCIPLE OF INNOCENCE: Like the previous ones, it derives from Article 39 of the Constitution, insofar as it requires the necessary demonstration of guilt. No person can be considered or treated as guilty while there is no firm conclusive judgment against them, issued in a regular and legal process that declares them as such after having destroyed or overcome that presumption. Furthermore, by virtue of the accused's state of innocence, it is not they who must prove their lack of guilt, but rather the prosecuting bodies..." (Ruling number 1739-92 of 11:45 hours of July 1st, 1992) In another resolution, it established:

"The Chamber considers that the principle of innocence protected by Article 39 of the Constitution demands the full demonstration of the accused's guilt, beyond all reasonable doubt. Consequently, if a judgment has been issued against the appellant without having reached this state of conviction, the judgment would have violated their right to due process in its substantial element..." (Ruling number 4700-93 of 15:51 hours of September 28th, 1993. In the same sense, ruling number 4784-93 of 8:36 hours of September 30th, 1993).

In equal terms, ruling number 6660-93 of 9:33 hours of December 17th, 1993, states:

"Taking into account, moreover, the principle of innocence (no person can be considered or treated as guilty while there is no firm conclusive judgment against them, issued in a regular and legal process that declares them as such), from which we can extract the principle of the burden of proof that governs our criminal matter, according to which, it corresponds to the Public Ministry (as the body that holds the monopoly of criminal action) to reliably demonstrate in the process the facts attributed to the accused, thereby excluding, by virtue of the accused's state of innocence, the accused's duty to prove their lack of guilt. It can be affirmed that if it is verified that any of these aspects has been ignored by the corresponding jurisdictional body, there could then exist a violation of the principle of due process and the right of defense." From the above, it can be concluded that the demonstration of guilt, through the burden of proof, is the exclusive task of the Public Ministry and, therefore, it is the obligation of the legislator to use techniques that allow the prosecuting body to fulfill this constitutional guarantee. In the bill under consultation, although the legislator inserted phrases such as "is proven to," the lack of a correct definition of the crime intended to be repressed causes the presumption of innocence to be reversed, and for the mere fact that the active subject remains in possession of goods or increases their assets, they will be punished, without demonstrating that this increase in their assets has a nexus with the illicit activity of the public official, which consequently obliges the accused to demonstrate the origin of their goods, thereby flagrantly violating the principle of innocence.

V.- Tacit repeal of Article 346 of the Penal Code. Finally, Article 68 of the bill is consulted, on the grounds that said numeral introduces confusion related to the principle of legal certainty. The norm assumes the validity of the subsections it does not repeal, despite the fact that with the enactment of Law No. 6872 of June 17, 1983, "Law on Illicit Enrichment of Public Servants," the legislator had already provided for the repeal in Article 32 of that law. For the consultants, the principles governing the validity and repeal of laws enshrined in numeral 129 of the Political Constitution are violated. Certainly, the provisions that opposed Law No. 6872 of June 17, 1983, were repealed as provided in its Article 32, but the verification of which provisions it affected and whether they included subsection 4) of Article 346, now repealed by Article 68 of the consulted bill, is not a question of constitutionality on which this tribunal must render its opinion.

Por tanto:

The facultative legislative consultation on the bill for the "Law against Corruption and Illicit Enrichment in the Public Function," legislative file number 13,715, is answered in the sense that Articles 45 subsections a) and b) and 46 are unconstitutional. The consultation is inadmissible regarding subsection c) of Article 45 and regarding the effects or possible interpretations of the repeal of subsection 4) of Article 346 of the Penal Code, contained in Article 68 of the bill." (Constitutional Chamber, resolution No. 2001-11584 of 8:53 hours of November 9, 2001). As observed, while in the bill examined by the Constitutional Chamber, what was intended to be criminalized was the increase in assets without cause, thereby obliging the public official to demonstrate the lawful origin of their goods, otherwise they would lose their assets, in Article 346, subsection 3) of the applied Penal Code, a more concrete conduct is foreseen, namely, admitting a gift that was not presented to them by chance or casually, but was given to them on the occasion of the position they hold and during the exercise thereof. This is a conduct that certainly violates the protected legal interest, as the public official, who should act apart from any economic interest, or at most, apart from any interest other than those of the very institution in which they serve and for which they must watch, within the provisions of the legislation, uses their position to obtain personal profit. For all the foregoing, the ground for appeal is rejected.

XXXVII.- Thirteenth ground for appeal. The norms related to confiscation under Article 110 of the Penal Code are improperly applied by ordering that certificate number 62445223, renewed as 62736757, pass to the State, without any basis or reasoning, thereby also infringing Articles 142, 184, and 369, subsection e) of the C.P.P. When ordering the confiscation, point 9 includes a term deposit certificate with number 62736757, which is neither described nor its nature and reason indicated. The tribunal indicates that the effects of the crime, the means or instruments used in its preparation and execution, and the gains derived from its commission pass to confiscation, which is nothing more than the reiteration of what is indicated by Article 110 of the Penal Code. Then, it orders this, without substantiating whether each of the goods "... are means or instruments with which the crime was committed, effects thereof, or gains derived from its commission, nor why this is so..." (F. 172,765 front). Regarding the confiscation of the certificate, the reasons for this decision are not indicated, which makes the ruling null, as it is unfounded. It is not explained whether it is an instrument of the crime, an effect, or a gain derived from it, making it impossible to know the motivations of the tribunal. Given this panorama, the proper course is to annul the decision of the majority judges and resolve that this confiscation is improper, ordering the return of the corresponding sum to its legitimate owner.

XXXVIII.- Although for different reasons, the claim is granted: Before examining the specific case, it is important to make some general considerations regarding Article 110 of the Penal Code. According to this norm, confiscation produces the loss in favor of the State of the instruments with which the crime was committed, of the things or values coming from its perpetration, or that constitute for the agent a benefit derived from the same crime. We speak of a confiscation that, as occurs in other legal systems such as the German or Spanish, extends over three categories of goods, namely, the instruments, the effects, and the gains of the crime. Instruments are, in short, "... the tools or means used for the execution of the criminal act" (Nombre98, Josep Miquel; Nombre99. "Título VI. De las consecuencias accesorias." In: Nombre100 (Dir.); Nombre12 (Coord.). Comentarios al Nuevo Código Penal. Navarra, Editorial ARANZADI, S.A., 3rd edition, 2004, p. 649). We speak, for example, of "... the tools for committing robbery or forgery, the weapons used in a holdup, the capital with which the drug trafficking business is set up, the motor vehicle used for contraband or to transport the victim who will later be raped..." (Nombre101. "Notas sobre el comiso y la propiedad de terceros." In: Actualidad Penal. Revista semanal técnico-jurídica de Derecho penal. Madrid, La Ley-Actualidad S.Nombre13., No. 24, week of June 9 to 15, 1997, p. 523).

With respect to the terms <span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">things or values (cosas o valores)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, further clarifications are necessary. The </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">thing (cosa)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, which comes from the Latin </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">causa</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, according to the Dictionary of the Spanish Language is </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">everything that has entity, whether corporeal or spiritual, natural or artificial, real or abstract</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Although it is also defined as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a material object as opposed to the rights created over it and to personal services,</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> it is no less true that it is considered a synonym for the term </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">good (bien)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, and this is understood as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">material or immaterial things as objects of law.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> In other words, with the term </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">things (cosas)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> the Costa Rican legislator refers not only to corporeal things, but also to immaterial ones. The term </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">value (valor)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, for its part, refers to the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">quality of things, by virtue of which a certain sum of money or equivalent is given for possessing them</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, or to the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">quality possessed by some realities, considered goods (bienes), for which they are estimable.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Therefore, we understand </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">value (valor)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> as any economically estimable good (bien). Article 110 of the Criminal Code provides for the confiscation (comiso) of the things or values (cosas o valores) </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">deriving from the commission of the crime</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. This expression refers to what in doctrine is known as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">producta sceleris</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> in the strict sense, that is, the goods (bienes) </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">produced, transformed, or manipulated</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> from the very conduct constituting the offense, e.g., the falsified document or money, or the drug when it results from the mechanics of the commission itself (thus, Nombre101, “Notas sobre el comiso y la propiedad de terceros.”, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">op. cit., </span><span style="line-height:150%; font-family:Arial; font-size:12pt">p. 524; Nombre101. \"Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.\" In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Documentación Jurídica. Monográfico dedicado a la propuesta de anteproyecto del Nuevo Código Penal</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Madrid, Gabinete de Documentación y Publicaciones, Secretaría General Técnica, Ministerio de Justicia, Volumen 1, Enero/Diciembre, 37/40, 1983, p. 246 and Nombre102 (Coord.); Nombre14, Nombre103; Nombre15, Nombre16. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Las consecuencias jurídicas del delito en el nuevo Código Penal español. El sistema de penas, medidas de seguridad, consecuencias accesorias y responsabilidad civil derivada del delito.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Valencia, Tirant lo Blanch, 1996, pp. 450-451). Finally, the Costa Rican legislator also contemplated the confiscation (comiso) of the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">proceeds of the crime (provecho del delito)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. This term, derived from the Latin </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">profectus</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, is defined by the Royal Spanish Academy as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">benefit or utility that is obtained or originated from something or by some means</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. The benefit, of which it is a synonym, is defined in turn as the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">economic gain obtained from a business, investment, or other commercial activity.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Likewise, utility is the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">profit, convenience, interest, or fruit derived from something.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> In summary, when referring to proceeds (provecho), it concerns the profits (ganancias) derived from the crime. Another point to consider is </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">the prerequisite for confiscation (comiso)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. According to the general rule provided in Article 110, confiscation (comiso) is linked </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">to the crime (delito)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Confiscation (comiso) is a consequence of this and not, for example, of the commission of an act that, although typical, does not meet other requirements, such as unlawfulness or culpability. The crime (delito), from a technical dimension, must be understood as the conduct that is typical, unlawful, and culpable, and not as a simple legislative provision independent of a declaration of responsibility in a specific case, since it is inferred from Art. 103 of the Criminal Code that, for these purposes, indicates that confiscation (comiso) has as its prerequisite </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">a punishable act (hecho punible)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> and that it shall be imposed in the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">conviction (sentencia condenatoria)</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. This Chamber is not unaware that some courts have applied this legal institution in other circumstances, for example, when despite ordering a definitive dismissal (sobreseimiento definitivo) due to the extinction of the criminal action after payment of the fine, the goods are intrinsically dangerous. In that sense, Judgment No. 629-2000 is expressed, issued by the Criminal Appeals Tribunal of San José, at 12:00 noon on August 14. This judgment also indicated that confiscation (comiso) may proceed after the issuance of an acquittal (sentencia absolutoria): </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“It is logical to understand this, since confiscation (comiso) is decreed as a result of a judgment, be it a conviction or an acquittal, and, among the latter, by analogy, the dismissal (sobreseimiento), which in substance fulfills the same procedural effects. In the same sense, Article 465 CPP determines that “when the judgment orders the confiscation (comiso) of some object, the court shall give it the destination that corresponds according to its nature, in accordance with the rules governing the matter”. There will be very relevant cases in which, despite the exculpation of the accused, it is necessary to decree the confiscation (comiso). For example, the destruction of drugs, explosive material, or poisonous substances. In these cases, the safeguarding of public interests of transcendence (public health or common security) is at stake. It is obvious to understand that these are measures to be imposed with caution and prudence, lest the interests of the accused be unnecessarily harmed, despite their acquittal. From this perspective, the situation in each specific case must be noted, and if, in accordance with the provisions of the law, it is appropriate to decree the confiscation (comiso) of goods (bienes).”. </span><span style="line-height:150%; font-family:Arial; font-size:12pt">The foregoing argument, besides not corresponding to what is set forth in Art. 110 of the Criminal Code (since it refers to the “crime (delito)” as the prerequisite for the seizure), can only be invoked for the confiscation (comiso) of effects and instruments, not for the confiscation (comiso) of the profits (ganancias), since while the basis of the former is the danger associated with the good (bien) and what is sought with the legal institution is to protect the community against that danger [thus Nombre101, \"Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.\", </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">op. cit.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> , p. 246 and Nombre104. “El comiso en materia de tráfico de drogas: visión comparada de las regulaciones española y chilena”. In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Anuario da Facultade de Dereito da Universidade da Coruña (Revista jurídica interdisciplinar internacional).</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> Universidade da Coruña, Servicio de Publicacións, N° 10, 2006, p. 853], the situation is different regarding profits (ganancias). The confiscation (comiso) of these is explained solely by the need to eliminate a patrimonial enrichment that has been obtained irregularly (Nombre105. “El comiso de las ganancias provenientes del delito y el de otros bienes equivalentes a éstas.” In: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Revista Penal</span><span style="line-height:150%; font-family:Arial; font-size:12pt">, N° 19, 2007, p. 166. Article available online: http://www.uhu.es/revistapenal/index.php/penal/article/view/312/303). The seizure of profits (ganancias) cannot be justified by the argument of their dangerousness, since unlike what happens with other goods (bienes) (e.g., certain firearms or explosives), money is not an intrinsically dangerous good (bien). Similarly, its confiscation (comiso) cannot be based on the probability that these profits (ganancias) will be used in the commission of new offenses, because this would lead us to deny the application of the institution when that risk does not exist, allowing the perpetrator of the act, or their associates, to enjoy the benefits obtained irregularly. The confiscation (comiso) of profits (ganancias), therefore, is based on the necessity of eliminating an enrichment that has its origin in an act that, at least in principle, is of interest to the criminal legal system and whose characteristics are defined by the legislator in each country. For example, in Germany, the confiscation (comiso) of the benefits requires the unlawful commission of the typified act, but not its culpable realization (Nombre02, Nombre106, Nombre17; WEIGEND, Thomas. </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">Tratado de Derecho Penal. Parte General</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Translation by OLMEDO CARDENETE, Miguel. Granada, Editorial Comares, S.L., 5th revised and expanded edition, 2002, p. 851). In the Spanish case, in addition to a confiscation (comiso) of the profits (ganancias) </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">of a mandatory nature</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> and whose prerequisite is the </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">penalty imposed for a crime (delito)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> (Art. 127 of the Spanish Criminal Code), recently - in July 2015 - a provision was included (Art. 127 ter) that provides for an optional confiscation (comiso) in cases where there is no conviction and the illicit patrimonial situation is demonstrated through an adversarial proceeding. This is a possibility that can only be considered in the following cases: </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">a)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">That the subject has died or suffers from a chronic illness that prevents their prosecution and there is a risk that the acts may prescribe,</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">b)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">they are in default (rebeldía) and this prevents the acts from being tried within a reasonable time, or</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">c)</span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-weight:bold; color:#222222">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; color:#222222">no penalty is imposed on them because they are exempt from criminal responsibility or because this has been extinguished.</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> The comparison of our regulation on confiscation (comiso) with that of other countries allows us to conclude, without any doubt whatsoever, that contemplating </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">the crime (delito)</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> as the sole prerequisite for the application of this legal institution is insufficient. If it concerns effects and instruments, their confiscation (comiso) must be conditioned on the intrinsic dangerousness of the good (bien) and the need to protect the community against its eventual use. In the case of profits (ganancias), the prerequisite for confiscation (comiso) must be the demonstration of conduct that is at least typical and unlawful and from which irregular enrichment has been obtained. What is not possible, in the opinion of this Chamber, is for the legal operator, faced with a clear rule, to resort to an extensive interpretation to provide said Article 110 with a content it does not have, with a view to ordering a confiscation (comiso) that is not appropriate. Having said this, we find that in the particular case, at folio 16,339 front of volume XXXIV, the trial court ordered the confiscation (comiso) of the investment certificate No. 62445223 which was renewed into certificate No. 62736757</span><span style="line-height:150%; font-family:Arial; font-size:12pt">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> for the amount of ₡5,463,555.65 (five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five céntimos), without providing any reason why it should proceed in this manner, that is, without explaining, whether in this section or in any other part of the judgment, what relationship said certificate has with the crime (delito), specifically, whether it is an instrument, an effect, or a profit (ganancia) derived from it. This is a transcendental error if two issues are considered. The first is that the conduct of [Nombre02 018], in accepting economic retributions from [Nombre01 060] after leaving the position of deputy, is atypical. Those pecuniary advantages cannot be considered profits (ganancias) deriving from the crime (delito) and therefore, they are not subject to confiscation (comiso). The second point to consider is that, although the trial court, in the section designated to examine the situation of [Nombre01 018], stated that certificate No. 62736757 is related to the RAV 4 vehicle License Plate [Valor 052] that this defendant bought, </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">from the evidence it cites to support the foregoing, this conclusion cannot be drawn</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Let us see. According to the statement of charged and proven facts, the RAV 4 vehicle License Plate [] was acquired by [Nombre01 018] for his daughter, [Nombre01 243], with funds originating from [Nombre01 060] that were transferred to him in 2003 and that were in the bank account of [Nombre02 215], located in Panama (thus, cf. order to open trial (auto de apertura a juicio), charged facts numbers 237 to 239, f. 10,484 to 10,485 front, volume XXIII and proven facts numbers 224 to 228, transcribed above). Based on the evidence identified with numbers 418 to 422, the trial court indicated that in April 2004, [Nombre01 243] sold the mentioned vehicle to Mr. [Nombre01 254] and that on April 30, 2004, she acquired the Peugeot Berlina-style vehicle License Plate [Valor 053] (f. 16,040 to 16,044, volume XXXIII), the latter being </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“…delivered to the Procuraduría General de la República </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">as confirmed in evidence No. 764</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic; text-decoration:underline">”</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> (F. 16,044 front). Now, having reviewed the latter by this Tribunal de Apelación de Sentencia Penal, evidence that is described in the first-instance judgment as </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">“Official Letter AEP-386-2010 of August 18, 2010, signed by Miguel Cortés Chaves of the Procuraduría de La Ética y La Función Pública requesting the liquidation of the time deposit certificate No. 62445223 and interest coupon 62445223-1, product of the sale of the vehicle delivered by [Nombre01 018]</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; font-style:italic">to the Procuraduría General de la República”,</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> we find that it </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">only refers to the time deposit certificate No. 62445223 and interest coupon 62445223-1, renewed into certificate No. 62736757</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline"> for the amount of ₡5,463,555.65, in the name of the Procuraduría General de la República. Therefore, contrary to what the trial court (a quo) states without foundation, at least from evidence No. 764, the relationship of the certificate with the funds obtained after the sale of the Peugeot vehicle License Plate [] cannot be extracted. Now, notwithstanding the foregoing, ordering a retrial to discuss the point again is unnecessary, since if what the appealed judgment states regarding the origin of the funds supporting certificate No. 62736757 (and which is a renewal of No. 62445223) is admitted, an aspect that was also not subject to any challenge, the only conclusion that can be reached is that this good (bien) does not have a criminal origin, since in 2003 [Nombre01 018]</span><span style="line-height:150%; font-family:Arial; font-size:12pt"> </span><span style="line-height:150%; font-family:Arial; font-size:12pt; text-decoration:underline">did not hold the status of deputy and for that reason, the acceptance of the economic retribution used to buy the RAV 4 vehicle is conduct that, although censurable in ethical terms, is not typical</span><span style="line-height:150%; font-family:Arial; font-size:12pt">. Even less then could one speak of a criminal wrong and even less of the commission of a crime (delito) as the source of the resources whose confiscation (comiso) is sought. Finally and more abundantly, it is important to point out that the accusation formulated by the requesting body is absolutely silent as to the link between certificate No. 62736757 and the profits (ganancias) originating from [Nombre01 060], or at least with the vehicle that, according to the trial court (a quo), was acquired using those profits (ganancias), an issue that was essential to guarantee the discussion on the factual prerequisites that authorize the imposition of confiscation (comiso). The issue is so clear that it was the trial court itself which, breaching the principle of correlation between accusation and judgment (sentencia) and without proper substantiation - as already indicated -, proceeded to incorporate into the judgment (sentencia) the missing information, with the purpose of explaining how part of the profit (ganancia) obtained by [Nombre01 018] underwent multiple transformations until becoming the investment certificate No. 62736757, whose confiscation (comiso) it ordered. In summary, we understand that in the particular case, the confiscation (comiso) of the certificate is not appropriate, not only because the decision was adopted without adequate substantiation, but because in any case, based on the facts proven by the trial court (a quo) and which were not subject to appeal - some moreover, not described in the accusation, thereby breaching the principle of correlation between accusation and judgment (sentencia) -, the funds supporting the certificate did not originate from a crime (delito), but from an atypical act. Therefore, the claim is upheld. The judgment (sentencia) is annulled solely insofar as it ordered the confiscation (comiso) of investment certificate No. 62445223 which was renewed into certificate No. 62736757, ordering its return to whoever proves to be its legitimate owner. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXIX.- Appeal for cassation (Recurso de casación) filed by attorney Mario Navarro Arias, private defender of [Nombre01 028]. </span><span style="font-family:Arial">As explained in previous recitals (considerandos), after upholding some grounds of the appeals filed by attorneys Federico Morales Herrera and Erick Ramos Fallas, private defenders of [Nombre01 041], and by the defendant [Nombre01 033] personally, the prosecutorial discretion (criterio de oportunidad) granted to [Nombre01 064] and, consequently, the statement he made at trial, were declared unlawful. By reason of the provisions of Article 443 of the Code of Criminal Procedure regarding the extensive effects of the appeal, we proceeded to examine the consequences of that decision for all defendants, and in the case of [Nombre01 028], it was decided to annul the judgment (sentencia) insofar as it declared him the responsible perpetrator of three crimes of corruption penalty in the modality of aggravated bribery in the form of improper passive bribery, in material joinder (concurso material), in relation to [Nombre01 022], [Nombre01 001] and [Nombre01 064], and in its place, he was acquitted of all penalty and responsibility for the referred crimes. Likewise, due to the foregoing decision, it was considered unnecessary to resolve the claims raised by his defender, attorney Mario Navarro Arias, with the exception of what the appellant termed the third ground of form and which will be addressed below. </span><span style="font-family:Arial; font-weight:bold">Third ground of form. Erroneous and inadequate substantiation. Violation of due process and the right of defense due to erroneous application of Article 110 of the Criminal Code</span><span style="font-family:Arial">. The legal basis for this ground is found in Articles 39 of the Political Constitution, 110 of the Criminal Code, 1, 2, 12, 142, 178, 363 subsection b), 369 subsections d) and j), 458, 459 and 460 of the Code of Criminal Procedure. The appellant points out that the court, in section XVII of the judgment (sentencia), ordered the confiscation (comiso), among others, of the following goods (bienes): 1) Partido de Heredia registered under the folio real system, registration number [Valor 006], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in the name of the company [Nombre 053]. A company belonging to the defendant [Nombre02 028]</span><span style="font-family:Arial; font-style:italic"> “…who proceeded to nurture it with illicit funds deriving from [Nombre01 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, and with those funds he carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.”. </span><span style="font-family:Arial">2) Shares of [Nombre01 028] in the company [Nombre 057]. owner, among others, of the properties registered in the Public Registry under the Folio Real system Registration No. [Valor 007], Sub-registration 000 and Registration No. [Valor 009], Sub-registration 000, real estate properties</span><span style="font-family:Arial; font-style:italic"> “… which were acquired with illicit funds that came from [Nombre01 060].”. </span><span style="font-family:Arial">For the private defender, the trial court (a quo) violated what is stated in Article 110 of the Criminal Code, by failing to substantiate the decision to confiscate (comisar) the aforementioned goods (bienes): “</span><span style="font-family:Arial; font-style:italic">It is not enough to order \“the forfeiture in favor of the State of…\”, but the causal nexus existing between the commission of the illicit act and the goods (bienes) upon which the confiscation (comiso) falls must not only be demonstrated at trial, and that these constitute proceeds (provecho) derived from the same crime (delito); but the Court must also demonstrate that neither the defendant nor a third party has rights over those goods (bienes)...”</span><span style="font-family:Arial"> (F. 17,174 front). Furthermore, expert report No. 202-DEF-445-05/06 (Evidence No. 619), in point 4.4, indicates that the company [Nombre 053] was incorporated on April 8, 2002, by the defendant [Nombre01 028] and [Nombre01 257], before Notary Public Oki Emilio Rojas Chacón. The share capital was formed by the sum of one million colones, represented by one hundred common, nominative shares of ten thousand colones each, of which [Nombre01 028] subscribed 99 shares and the partner [Nombre01 257] one share. According to a notarial certification from 2:00 p.m. on January 27, 2003, [Nombre01 028] occupies the position of president with the judicial and extrajudicial representation of the company [Nombre 053]., a company that is registered in the Commercial Section of the Public Registry, at folio 196 of volume 1497, entry 98 (thus, Annex 13 of Report 202, folio 170). In point 4.3.1 of the same report, it is indicated that the Company [Nombre 057], legal ID number [Valor CED08], was incorporated on May 5, 2003, by [Nombre 264] and [Nombre02 266], before the notarial office of Oki Emilio Rojas Chacón.

The social capital was established in the sum of ¢50,000,000.00 (fifty million colones), represented by 50,000 shares of one thousand colones each, of which Mr. [Name01 264] subscribed to 49,999 shares of one thousand colones each, and [Name01 266] subscribed to one share of one thousand colones. Therefore, from the same evidence it is clear that the seized assets are duly registered in the name of corporations in which, apart from [Name01 028], there are other partners. Jurisprudence and doctrine have determined that the court ordering the seizure (comiso) must be very cautious and zealous when adopting such a decision, in order not to affect the rights and guarantees, not only of the accused, but also of third parties unrelated to the process. Likewise, 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; absolute certainty is required, so as not to violate the principles that inform due process, such as: the principle of legality, innocence, defense, fair trial, culpability, etc., as has been ordered by the Third Chamber of the Supreme Court of Justice, in resolution No. 865-97. In support of his claim, he also mentions resolution No. 00377-2010, of the Criminal Cassation Court of Cartago, according to which the causal link between the assets subject to seizure (comiso) and the commission of the illicit act must be demonstrated. He adds that even clearer is ruling No. 00121-2010 of the Third Chamber, which he transcribes, highlighting from said text the reference that exists regarding the need for said decision to be duly substantiated. He adds that in the case under review, the ruling omitted to justify the seizure (comiso). There is not a single reason to conclude that its issuance should have proceeded, to the detriment of the interests of both [Name01 028] and third parties unrelated to the process. He adds that the court also did not refer to the origin of the funds with which the properties subject to seizure (comiso) were acquired. There are no indications suggesting even as probable, much less with certainty, that they were the proceeds from [Name01 091] and used by [Name01 041] and [Name01 078] for the payment of the bribes (dádivas) investigated here. According to the complainant, their origin could have been any other. He reiterates that since 1997 there was a legal relationship between [Name01 060] and [Name01 058], where legitimate, authentic acts were executed, based on real consulting agreements. The expert reports, continues the challenger, even though they provide a breakdown of the amounts by date, fail to specify whether such sums received can be linked to the consulting contracts or to services unrelated to these. The appeal adds: “… </span><span style="font-family:Arial; font-style:italic">The funds that entered my client's account, according to the banking information in the case file, occurred a very long time after the accused crime was consummated, so given the long-standing commercial relationship, it is highly probable that the funds in question originated in any of the commercial acts arising previously. For this reason, it is absolutely necessary for the Court to demonstrate beyond all doubt, that the entirety of the funds that entered my client's bank accounts are, in the first place, proceeds of a crime and, secondly, that the crime from which that money originated is precisely the one being investigated here, in order not to affect the rights of all those persons who have no relation to the illicit act, nor violate the principles that inform due process, such as: the principle of legality, innocence, defense, fair trial, culpability, etc.</span><span style="font-family:Arial">, …” (F. 17,182 front). He questions why, if the assets of [Name 058] are seized (comisaron), an identical decision was not made regarding the funds received by Bufete Valerio Casafont, as professional fees, from the account of [Name 058]. He cites, in support of this assertion, the testimonies of Name107 and [Name01 111], to the effect that the funds came from the bank accounts of that company. Since the ruling is not substantiated, the reason for acting differently regarding the assets of the mentioned firm is unknown. The only justification given is a transcription of article 110 of the Criminal Code, with no analysis of the substantial sums of money that were also paid from the accounts of [Name 058] to other companies: </span><span style="font-family:Arial; font-style:italic">“It is clear, because Name02 as determined by the ruling, that [Name01 028] was sanctioned for delivering money to public officials as payment of bribes (dádivas). Three crimes of aggravated improper bribery (cohecho impropio agravado) in its modality of penalty of the corrupter. The instrument used for the commission of the crime, based on the legal classification, was the money delivered to the co-defendants. It is clear, because Name02 as held by the ruling, that the funds serving that purpose were PRIVATE FUNDS, coming from [Name01 091] AND RECEIVED IN THE ACCOUNT NOT OF [Name 028], BUT OF [Name01 058]. It is clear and evident that this account handled more than fourteen million dollars and that according to the EXPERT REPORT EXTENSION NUMBER 202 that explored the account holder's account movement, the sums delivered to the companies or persons involved did not exceed fifty percent. As indicated above, substantial sums were paid to Bufete Valerio Casafont, TO THE COMPANIES MACRO INVESTMENT AND TELEINVEST SOCIEDAD ANÓNIMA, TO THE LATTER A SUM EXCEEDING ONE MILLION ONE HUNDRED THOUSAND DOLLARS. The experts from the Judicial Investigation Organization never conducted a study on who those recipients were, even though the sums were substantial. Moreover, THE SENTENCING COURT DID NOT EVEN TAKE THE TROUBLE TO ANALYZE THE RECIPIENTS OF THE SUMS OF MONEY BEYOND THOSE INVOLVED IN THESE EVENTS. Leaving aside a very high percentage of money distributed by the company SNQC. It does not decree seizure (comiso) of the money paid to Name108, considering it to be money received licitly, denaturing its entire argument regarding the handling of funds by the company SNQC ...” </span><span style="font-family:Arial">(f. 17,184 and 17,185 front). After citing evidence 619, expert report No. 202-DEF-445-05/06 from the Economic and Financial Crimes Section of the Criminal Investigations Department of Name12 and its annexes, consisting 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), the appellant affirms that these elements prove the origin and destination of the money from [Name01 060] that was delivered by [Name01 028] to the benefit of those charged in the case, but the court did not take the care to analyze this evidence. Overlooking that it was private funds managed by the company [Name 058], it decreed the seizure (comiso) of two assets, specifically the PERCENTAGE IN A COMPANY CALLED [Name01 057] and a dwelling belonging to [Name01 053], acquired with funds unrelated to THE OBJECT OF THE CRIME OF IMPROPER BRIBERY (COHECHO IMPROPIO). The appellant adds: “… </span><span style="font-family:Arial; font-style:italic">The point under discussion is that and its analysis is important. If SNQC MANAGED PRIVATE FUNDS, AND FROM THOSE FUNDS SUMS WERE DELIVERED TO THOSE INVOLVED IN THESE EVENTS, WE DO NOT DISPUTE THAT; ADMITTING AS MUST BE DONE IN RESPECT OF THE FACTS, the instrument of the crime WAS THE BRIBE (DÁDIVA), and the benefit of that BRIBE (DÁDIVA) WAS THE APPROVAL OF THE TENDER IN FAVOR OF [Name 091], so that assuming that with funds from [Name01 091] ASSETS WERE ACQUIRED by TWO PRIVATE CORPORATIONS, those assets cannot be subject to seizure (comiso) if they are unrelated to the criminal offense attributed to my client </span><span style="font-family:Arial">…” (F. 17,186 front, volume XXXVI). Based on the foregoing, he requests that this ground be declared with merit and that, first, the revocation of the seizure (comiso) be ordered or, in the alternative, a remand be ordered so that, with a new panel and in accordance with the rules established in article 359 of the Criminal Procedure Code, the court determines and justifies whether the ordered seizure (comiso) proceeds or not. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXX.- </span><span style="font-family:Arial">Although for different reasons, </span><span style="font-family:Arial; font-weight:bold">the ground is upheld.</span><span style="font-family:Arial"> In section XVII of the judgment, specifically from folios 16,337 front to 16,341 front, volume XXXIV, the seizure (comiso) of the following assets was ordered: </span><span style="font-family:Arial; font-weight:bold; font-style:italic">“A.4)</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">Heredia district registered under the Folio Real system, Registration No. [Value 006], Sub-registration</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-style:italic">in the name of the company [Name 053].</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Company belonging to the accused [Name01 028] who proceeded to nourish it with the illicit funds originating from [Name01 060], and with those funds carried out various banking transactions and businesses of different nature </span><span style="font-family:Arial">( </span><span style="font-family:Arial; font-style:italic">sic</span><span style="font-family:Arial">)</span><span style="font-family:Arial; font-style:italic">, such as the purchase of the described property…</span><span style="font-family:Arial; font-weight:bold; font-style:italic">4) </span><span style="font-family:Arial; font-style:italic">Of the shares of [Name01 028] in the company [Name 057], owner, among others, of the real estate registered in the Public Registry under the Folio Real system Registration No. [Value 007]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Sub-registration 000 and Registration No. [Value 009]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">, Sub-registration . Real estate that was acquired with illicit funds originating from [Name01 060]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-style:italic">.”. </span><span style="font-family:Arial">As observed, the trial court indicated that the property in the Heredia district registered under the folio real system, registration No. [Value 006], sub-registration 000, in the name of the company [Name 053], was acquired with the funds originating from [Name01 060]. The same was affirmed of the real estate registered in the name of the company [Name 057], ordering the seizure (comiso) of the shares of [Name01 028] in the cited company. Faced with the argument of the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial">, in which the seized assets (decomisados) are profits derived from the crime of penalty of the corrupter in its modality of aggravated corruption by improper bribery (cohecho impropio), this chamber concluded, in previous consideranda, that the conduct of [Name01 028] (what could be proven) is atypical and consequently, he was acquitted of all punishment and responsibility. Under these new circumstances and as already indicated when examining the seizure (comiso) of investment certificate No. 62736757 (thus, Considerando XXXIX.- of this resolution), the seizure (comiso) is absolutely improper, since if there is no typical action, much less will there be criminal wrongfulness and even less a crime that can be considered as the origin of the funds used to acquire the assets whose seizure (comiso) was ordered in the appealed judgment, the latter being the prerequisite contemplated by article 110 of the Criminal Code. For that reason, the claim is declared with merit. The judgment is annulled insofar as it ordered the seizure (comiso) of the property in the Heredia district registered under the folio real system registration No. [Value 006], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in the name of the company [Name 053], and of the shares of [Name 028] in the company [Name02 057], owner, among others, of the real estate registered in the Public Registry under the folio real system registration No. [Value 007], sub-registration 000 and registration No. [Value 009], sub-registration . The immediate return of the aforementioned assets is ordered to whoever proves to be their legitimate owner. </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXXI. - Appeals of cassation and of judgment filed by Attorney Juan Luis Vargas Vargas, special judicial representative of [Name02 077] in his capacity as president of the company [Name 061]</span><span style="font-family:Arial"> </span><span style="font-family:Arial; font-weight:bold">. </span><span style="font-family:Arial">Attorney Juan Luis Vargas Vargas, special judicial representative of [Name01 077] in his capacity as president with unlimited general powers without limit of sum of the company [Name02 061], filed an appeal of cassation (f. 17,649 to 17,674 of volume XXXVII; Name02 as an appeal of judgment (cfr. f. 172,273 to 172,291 of volume XXXIX), against judgment No. 167-2011, cited above. In both, after referring to the need to guarantee a comprehensive review of what was resolved, he alludes to his standing to appeal, explaining that both doctrine and the jurisprudence of the Third Chamber (resolutions No. 138-91; 1080-98; 583-2003; 712-2006 and 125-2010), Name02 as well as of the Constitutional Chamber (resolutions No. 5447-95, 4121-96 and 5464-96), recognize the right to file an appeal by anyone who, not having been a party to the process, was affected by the challenged resolution. He speaks, specifically, of the right to challenge recognized to a third party who is harmed by the seizure (comiso) of property owned by them, as happened in this case. Given that the content of both challenges (cassation and appeal of judgment) is essentially the same, this chamber will provide a single description of what is claimed. </span><span style="font-family:Arial; font-weight:bold">“Sole ground of the appeal. Violation of due process due to infringement of the right to defense for having ordered the seizure (comiso) of a real property belonging to a corporation” </span><span style="font-family:Arial">(f. 172,279, volume XXXIX). As violated regulations, the appellant cites articles 39 and 41 of the Political Constitution, 8 paragraph 1) of the American Convention on Human Rights and 369 paragraph j) of the Criminal Procedure Code. As erroneously applied norms, he mentions numerals 103 and 110 of the Criminal Code. According to him, the right to due process was violated, by not guaranteeing the right to defense and hearing to the company owning the real property whose seizure (comiso) was ordered. After citing doctrine and some pronouncements of the Inter-American Court of Human Rights on due process, of the Constitutional Chamber and the Third Chamber on the subject and in particular, on the right to defense and hearing (from the Constitutional Chamber, resolutions No. 5447-95; 4121-96 and 5464-96; from the Third Chamber, votes No. 74-98; 1080-98; 583-2003; 1273-2005; 712-2006; 96-2009; 125-2010 and 163-2010), Attorney Vargas Vargas affirms that the seizure (comiso) of real estate [Value 003], belonging to the company called [Name01 061], legal identification number [Value CED09], was ordered without giving it participation in the process. For the appellant, the justification given for the seizure (comiso) is not valid </span><span style="font-family:Arial; font-style:italic">“… for constituting mere general affirmations without a specific reference to the case and above all to the intervention of the company whose real estate is repeatedly cited for seizure (comiso), the defect denounced in this ground prevented the sentencer from issuing any pronouncement on the seizure (comiso), since the minimum adversarial premises had not been established in the process to guarantee having heard the defense of the harmed company. In this sense, the decision taken on the seizure (comiso) 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. For this reason, the decision to order seizure (comiso) in the judgment is surprising because during the processing of this case, no transfer was given to the referred company, with which it was not provided any opportunity to present its reasons opposing such a possibility of losing the mentioned property in favor of the State” </span><span style="font-family:Arial">(folio 172,288, volume XXXIX). He reiterates that the court ordered the seizure (comiso) of the real estate without giving the owning company an opportunity to defend itself, causing it an irreparable harm. He adds that in cases like the present one, the Third Chamber has ordered the partial nullity of what was resolved and has ordered a remand for a new substantiation of the point, a position he does not share, because: 1.- It would grant an undue advantage to the civil actors, who did not act in a timely and proper manner against the corporation: “</span><span style="font-family:Arial; font-style:italic">This implies a breach of the rule of defective procedural activity which establishes that under the pretext of restoring an act, the criminal process cannot be rolled back to precluded stages</span><span style="font-family:Arial">” (Folio 172,289). 2.-</span><span style="font-family:Arial; font-style:italic"> “Due to the large dimensions of the procedural defect denounced, which has implied an absolute exclusion of the affected company that was never heard, the partial reinstatement of the trial and the judgment is not the adequate mechanism to restore the enjoyment of the intervention rights of the company. And this is Name02 because if partial nullity were ordered, it would imply curtailing the opportunity to offer evidence and rebut the evidence and arguments of the actors in an intermediate phase already precluded” </span><span style="font-family:Arial">(Folios 172,289 and 172,290). Therefore, he considers it contrary to logic and procedural economy to order the partial reinstatement of the trial, the only solution being to refer the interested parties “to the corresponding legal avenue”, if they so choose. Regarding the plea of the appeal, he requests it be declared with merit, annul the judgment insofar as it ordered the seizure (comiso) of the property registered under sequence number [Value 003], of the Guanacaste District, which belongs to the company [Name01 061], and, as it is the only solution consistent with the alleged defect, refer the parties to the corresponding legal avenue, if they so choose. Finally, it should be noted that the appellant offered evidence at this procedural stage, admitting the special judicial power from [Name01 077] to Attorney Juan Luis Vargas Vargas; the copy of the legal status of the company [Name01 061], and a registry certification stating that this legal entity is the owner of the real estate subject to seizure (comiso). </span></p><p style="margin-top:0pt; margin-bottom:0pt; text-indent:34pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">XXXXII. - </span><span style="font-family:Arial">Although for reasons and with consequences different from those alleged,</span><span style="font-family:Arial; font-weight:bold"> the appeal is declared with merit</span><span style="font-family:Arial">. The trial court ordered the seizure (comiso) of the property registered in the Guanacaste district, folio real system registration [Value 003], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">and belonging to the company [Name01 061], after understanding that it was acquired with part of the economic compensation that was promised to [Name01 001] by the heads of [Name01 091], that is, with the profit obtained from the crime of aggravated corruption by improper bribery (cohecho impropio) (thus, f. 16,338 front, volume XXXIV). However, this chamber acquitted [Name01 001] of that crime, after discarding it as a proven fact that he accepted a promise of economic compensation in the terms contemplated in the accusation and also excluding that his conduct, in what can be considered proven with certainty by the </span><span style="font-family:Arial; font-style:italic">a quo</span><span style="font-family:Arial">, could be subsumed under another criminal offense. Given this new situation, the seizure (comiso) of the property belonging to [Name01 061], a corporation represented by [Name01 077], the accused's father, must be considered improper, since even though the real estate was acquired with funds originating from [Name01 060], in this particular case no crime was configured, a basic requirement for the provisions of art. 110 of the Criminal Code to apply. Therefore, the appealed judgment is annulled insofar as it ordered the seizure (comiso) of the property registered in the Public Property Registry, Guanacaste district, under the folio real system registration [Value 003], sub-registration . The return of the asset is ordered to its legitimate owner.

</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; text-align:center; line-height:150%"><span style="font-family:Arial; font-weight:bold">POR TANTO:</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">1) The following are declared with merit: the second ground of appeal of judgment formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Name01 041]; section two point D); and section three point A), of the appeal of judgment formulated by the accused [Name02 033], personally. By virtue of this, the following is resolved: 1.1) The opportunity criterion granted to [Name01 064] and the evidence derived from it is declared </span><span style="font-family:Arial; font-style:italic">illicit</span><span style="font-family:Arial">; 1.2.) The appealed judgment is partially annulled, only regarding the following: the convictions ordered against [Name01 033] and [Name01 041]. Likewise, by extensional effect, the convictions ordered against [Name01 028], [Name02 001] (only for the crime of aggravated corruption) and [Name01 022] are also annulled. In application of the principle </span><span style="font-family:Arial; font-style:italic">in dubio pro reo</span><span style="font-family:Arial">, these five defendants are acquitted of all punishment and responsibility for the crimes they have been charged with. 1.3.) As unnecessary, a ruling is omitted on the remaining claims formulated by [Name01 033] personally; the appeals filed by his defender, Attorney Rafael Gairaud Salazar; the remaining claims contained in the appeals formulated by attorneys Federico Morales Herrera and Erick Ramos Fallas, defenders of [Name 041]; the grounds formulated (with the exception of the third ground of each of their appeals) by Attorney Mario Navarro Arias, defender of [Name 028]; by Attorney Yamura Valenciano Jiménez, public defender of co-defendants [Name02 001] and [Name01 022]. 2) The fifth procedural ground, point 1), of the appeal filed by attorneys Wilson Flores Fallas and Nazira Merayo Arias, public defenders of [Name 006], is declared with merit. By virtue of this, the judgment is annulled solely insofar as it sentenced this defendant to the payment of personal costs. The case is remanded to the trial court, so that this point can be resolved again, with proper substantiation. 3) The fourth, fifth, sixth, seventh, eleventh, twelfth, and thirteenth grounds of the appeals filed by Attorney José Miguel Villalobos Umaña, private defender of [Name01 018], and by this defendant personally, are declared with merit, with the following consequences: 3.1)</span><span style="font-family:Arial; font-weight:bold"> </span><span style="font-family:Arial">The judgment is annulled only regarding the penalties imposed on [Name01 018] for the crime of illicit enrichment. As to this point, the case is remanded to the trial court so that, with a new panel and due justification, it proceeds to set the appropriate sanction. 3.2.) The judgment is annulled insofar as it ordered the seizure (comiso) of investment certificate No. 62445223 which was renewed in certificate No. , ordering its return to whoever proves to be its legitimate owner. 4) The third ground of the appeal filed by Attorney Mario Navarro Quirós, private defender of [Name02 028], which he called “</span><span style="font-family:Arial; font-style:italic">Erroneous and inadequate justification. Violation of due process and the right to defense due to erroneous application of article 110 of the Criminal Code</span><span style="font-family:Arial">”, is declared with merit. By virtue of this, the judgment is annulled only insofar as it ordered the seizure (comiso) of the property in the Heredia district registered under the folio real system registration No. [Value 006], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">in the name of the company [Name01 053], and of the shares of [Name 028] in the company [Name 057], owner</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> -among others-</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> of the real estate registered in the Public Registry under the folio real system registration No. [Value 007], sub-registration 000, and registration No. [Value 009], sub-registration . The immediate return of the aforementioned assets is ordered to whoever proves to be their legitimate owner. 5) The appeals filed by Attorney Juan Luis Vargas Vargas, special judicial representative of [Name01 077] in his capacity as president of [Name02 061], are declared with merit. By virtue of this, the appealed judgment is annulled only insofar as it ordered the seizure (comiso) of the property registered in the Public Property Registry, Guanacaste district, under the folio real system registration [Value 003], sub-registration</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">and belonging to the cited corporation. The return of the real estate is ordered to whoever proves to be its legitimate owner. 6) The remaining claims raised by the defendants and their defenders are declared without merit. 7) In application of the institutional zero paper policy and given that the resolution is very extensive, for which reason it cannot be served by fax or email, a compact disc containing it is made available to the parties, which they may collect from the court secretariat starting next Wednesday, December ninth, two thousand fifteen. </span><span style="font-family:Arial; font-weight:bold">Notifíquese.</span></p> Patricia Vargas González Ronald Salazar Murillo Mario Alberto Porras Villalta Judge and Judges of the Criminal Appeals Court (Tribunal de Apelación Penal) *Expediente : 04-006835-0647-PE (04)* *Imputado : [Nombre01 033] and others* *Ofendido : Instituto Nacional de Electricidad* *Delito : Aggravated Corruption (Corrupción Agravada) and others* ***AVARGASQ***

PODER JUDICIAL TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL Resolución: 2015-1620 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL, Segundo Circuito Judicial de San José. Goicoechea, a las dieciséis horas diez minutos del dos de diciembre del dos mil quince.- RECURSOS DE APELACIÓN interpuestos en la presente causa seguida contra [Nombre 001], [...]; [Nombre 006], [...]; [Nombre 018], [...]; [Nombre 022], [...]; [Nombre 028], [...]; [Nombre 033], [...]; [Nombre 041], [...]; por los delitos de CORRUPCIÓN AGRAVADA EN SU MODALIDAD DE COHECHO IMPROPIO, ENRIQUECIMIENTO ILÍCITO Y PENALIDAD DEL CORRUPTOR POR CORRUPCIÓN AGRAVADA EN LA MODALIDAD DE COHECHO IMPROPIO, en perjuicio de los DEBERES DE LA FUNCIÓN PÚBLICA Y EL INSTITUTO COSTARRICENSE DE ELECTRICIDAD. Intervienen en la decisión del recurso la jueza Patricia Vargas González, los jueces Mario Alberto Porras Villalta y Ronald Salazar Murillo. Se apersonaron en esta sede: el doctor [Nombre01 033], 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 [Nombre 046] ; el licenciado Mario Gonzalo Soto Baltodano, en calidad de Presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 050] .; los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores del señor [Nombre 006]; el licenciado Mario Navarro Arias, en calidad de defensor del señor [Nombre01 028] y apoderado especial judicial de las sociedades [Nombre 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]. y [Nombre 058].; el licenciado José Miguel Villalobos Umaña, en calidad de defensor del señor [Nombre 018]; los señores [Nombre 001], [Nombre 028], [Nombre 041] y [Nombre 018], 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 [Nombre 059] (antes [Nombre 060]); 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 [Nombre01 077], quien es el presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 061].; la licenciada Yamura Valenciano Jiménez, en calidad de defensora de los señores [Nombre01 001] y [Nombre 022] ; 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 [Nombre01 041] ; y el licenciado Germán Calderón Lobo, en calidad de representante del Instituto Costarricense de Electricidad.

RESULTANDO:

I.- El Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José, mediante el fallo Nº 167-2011, de las 15:00 horas del 27 de abril de 2011, acordó, por mayoría, lo siguiente: “A) Recalificaciones y cuestiones incidentales: A.1) Recalificaciones: por unanimidad se recalifican los hechos acusados a [Nombre01 018] del delito de Corrupción agravada derivada del Cohecho impropio al delito de Enriquecimiento ilícito; Nombre02 como los hechos endilgados a [Nombre01 063] , 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 [Nombre01 006] 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 [Nombre01 063] 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 [Nombre01 006] por un delito de Enriquecimiento ilícito, Nombre02 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 [Nombre01 033] por cuatro delitos de Enriquecimiento ilícito y a favor de [Nombre01 018] por un delito de Enriquecimiento ilícito, Nombre02 recalificado. A.4) Por unanimidad se rechaza la excepción de cosa juzgada formulada a favor del acusado [Nombre01 018]. 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 [Nombre01 018] 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 [Nombre01 063] del delito de RECEPTACIÓN, Nombre02 recalificado , y de FAVORECIMIENTO REAL ambos en perjuicio de la ADMISTRACIÓN DE JUSTICIA ; por atipicidad a [Nombre01 041] de un delito de PENALIDAD DEL CORRUPTOR en relación con el delito de CORRUPCIÓN AGRAVADA por COHECHO IMPROPIO atribuido a [Nombre01 018] 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 [Nombre01 033] de toda pena y responsabilidad de cuatro delitos de ENRIQUECIMIENTO ILÍCITO en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA y a [Nombre01 001] de un delito de FRAUDE DE SIMULACIÓN en relación con el traspaso de la finca registrada con la Matrícula Nº [Valor 001], Submatrícula , mediante escritura Nº 244 suscrita ante la notaria pública Nombre01 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 [Nombre01 041] coautor responsable de cuatro delitos de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO, en concurso material, en relación con [Nombre01 022], [Nombre02 001], [Nombre01 064] y [Nombre01 068], 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 [Nombre01 028] coautor responsable de tres delitos de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO en relación con [Nombre01 022], [Nombre01 001] y [Nombre01 064] 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 [Nombre01 046] coautor responsable de un delito de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO respecto de [Nombre 068], y autor responsable de un delito de PENALIDAD DEL CORRUPTOR por COHECHO PROPIO en relación con [Nombre 064] , 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 [Nombre01 022] 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 [Nombre01 001] 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 Nº 267 ante el notario público Nombre03 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 [Nombre01 006] autor responsable de un delito de ENRIQUECIMIENTO ILÍCITO, Nombre02 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 [Nombre01 033] 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 [Nombre01 018] autor responsable de un delito de ENRIQUECIMIENTO ILÍCITO, Nombre02 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 [Nombre 041], 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 [Nombre01 028], [Nombre 022], [Nombre 033], [Nombre 063], [Nombre 018], [Nombre 001], [Nombre 006], [Nombre 058]. y [Nombre 060]. 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 [Nombre01 041], [Nombre 028], [Nombre 022], [Nombre 033], [Nombre 063], [Nombre 018], [Nombre 001], [Nombre 046], [Nombre 006], [Nombre 058]., [Nombre 053]., [Nombre 057]., [Nombre 056]., [Nombre 055]. y [Nombre 054].. 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 Nombre03 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° [Valor 002], Submatrícula 000; Partido de Guanacaste bajo el sistema de Folio Real Matrícula N° [Valor 003], Submatrícula 000; Partido de Guanacaste, sistema de Folio Real Matrícula Nº [Valor 005], Submatrícula 002; y Partido de Heredia inscrita bajo el sistema de Folio Real, Matrícula Nº [Valor 006], Submatrícula 000. D.2) Del Certificado de inversión N° 62445223 que fuera renovado en el certificado Nº 62736757 por el monto de cinco millones cuatrocientos sesenta y tres mil quinientos cincuenta y cinco colones sesenta y cinco céntimos, a Nombre01 Nombre03. 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° 11387-9 del Banco Interfin y N° 201-722218 del Bank of New York Delaware, ambos girados a [Nombre01 064] y depositados a la orden de este tribunal. D.4) De las acciones de [Nombre01 028] en la sociedad [Nombre01 057]. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula Nº [Valor 007], Submatrícula 000 y Matrícula Nº [Valor 009], Submatrícula 000. D.5) De los vehículos marca Nombre04 Grand Vitara XL, placa Nº [Valor 010] ; y marca Nombre04 Jimny, placa Nº []. D.6) Se declara la falsedad instrumental de la escritura pública Nº 267 otorgada ante el notario público Nombre03 por [Nombre01 001] y [Nombre01 075], por lo que deberá suprimirse el traspaso de bienes dispuesto en dicho instrumento por parte de los sentenciados [Nombre01 076], 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 [Nombre01 028] y [Nombre01 001] 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 [Nombre01 041] 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 [Nombre01 041] , [Nombre01 028] y [Nombre01 001] frente a este proceso, Nombre02 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 [Nombre01 022] , [Nombre01 033], [Nombre01 046] y [Nombre01 018], 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.1) 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 [Nombre01 022], [Nombre 001], [Nombre02 046] y [Nombre02 006], 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 Nombre02 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 [Nombre01 022], [Nombre01 046], [Nombre01 033] y [Nombre02 018] 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 [Nombre01 022], [Nombre01 033], [Nombre 018], [Nombre 001] y [Nombre02 006] 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 Nombre03. 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…” (F. 16.497 a 16.506 frente, tomo XXXIV).

II.- Contra el anterior pronunciamiento, interpusieron recursos el doctor [Nombre01 033], a título personal, como también sus defensores, los licenciados Rafael Gairaud Salazar y Cristian M. Arguedas Arguedas; el licenciado Hugo Santamaría Lamicq, en calidad de defensor de [Nombre 046]; el licenciado Mario Gonzalo Soto Baltodano, en calidad de presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 050].; los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores de [Nombre 006]; el licenciado Mario Navarro Arias, en calidad de defensor de [Nombre02 028], Nombre02 como también en su condición de apoderado especial judicial de los demandados civiles [Nombre01 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]., [Nombre02 058]. y [Nombre 028]; el licenciado José Miguel Villalobos Umaña, en calidad de defensor particular de [Nombre 018] ; los imputados [Nombre 001], [Nombre 028], [Nombre 041] y [Nombre 018], en escrito autenticado por el licenciado José Miguel Villalobos Umaña; el señor [Nombre 018], en escrito autenticado por el licenciado Hugo Santamaría Lamicq; los licenciados Alejandro Batalla Bonilla y José Luis Campos Vargas, en calidad de apoderados especiales judiciales de la sociedad [Nombre 059] (antes [Nombre 060]); 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 [Nombre02 077], quien es presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 061].; la licenciada Yamura Valenciano Jiménez, en calidad de defensora de [Nombre01 001] y [Nombre 022]; las licenciadas Criss González Ugalde y Maribel Bustillo Piedra, en calidad de representantes del Ministerio Público; Nombre02 como los licenciados Federico Morales Herrera y Erick Ramos Fallas, en calidad de defensores de [Nombre01 041].

III.- Mediante resolución Nº 2014-1847, de las 11:20 horas del 21 de noviembre de 2014, la Sala Tercera de la Corte Suprema de Justicia resolvió lo siguiente: “POR TANTO. Se declaran sin lugar: 1) Los reclamos primero, de la sección primera; primero y segundo, de la sección cuarta, todos del Recurso del Ministerio Público; 2) El recurso de casación presentado, en lo personal, por el imputado [Nombre01 001]. Se acogen los motivos: Segundo de la sección primera; primero de la sección segunda; por mayoría, (Gómez Cortés, López Madrigal, Desanti Henderson y Sanabria Rojas), el segundo motivo de la sección segunda. El Magistrado Cortés Coto, salva el voto; el primero, segundo y tercero de la sección tercera; el segundo, tercero, cuarto, quinto, sexto, sétimo y noveno de la sección sétima; primero y segundo de la sección octava. Por falta de interés , no se conocen los reclamos cuarto, quinto, sexto, sétimo y noveno de la sección sexta. Se declara con lugar el único motivo de casación admitido del recurso formulado por la Procuraduría General de la República. En consecuencia, se anula el fallo 2012-2550, el Tribunal de Apelación de Sentencia Penal, excepto en lo dispuesto sobre los delitos de fraude de simulación, en contra de [Nombre01 001] y lo atinente a la absolutoria del imputado [Nombre01 033], por cuatro delitos de Enriquecimiento Ilícito, contemplado en el punto A) de la parte dispositiva del fallo impugnado. Se ordena el reenvío para nueva sustanciación, a efecto de que se resuelvan los recursos de apelación de sentencia penal, formulados por los imputados, a excepción de lo que aquí ha quedado firme. El reenvío al Tribunal de Juicio, sobre el tema civil planteado por la Procuraduría General de la República, se realizará tomando en cuenta todos los hechos del escrito de la Acción Civil Resarcitoria, presentado por esa parte…” (F. 176.528 frente y vuelto, tomo XLIII).

IV.- Por haber ordenado el órgano de casación un reenvío parcial a la etapa de apelación de sentencia, este tribunal deberá pronunciarse de nuevo sobre los siguientes recursos que fueron interpuestos contra la resolución del Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José:

• A)Recursos planteados por [Nombre01 033].
• B)Recursos interpuestos por el licenciado Rafael Gairaud Salazar, defensor particular de [Nombre 033].
• C)Recursos interpuestos por la licenciada Yamura Valenciano Jiménez, en su condición de defensora de [Nombre02 022] y de [Nombre 001].
• D)Recursos planteados por los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores de [Nombre 006].
• E)Recurso planteado a título personal por los imputados [Nombre01 001], [Nombre01 028] , [Nombre 041] y [Nombre 018].
• F)Recursos formulados por el licenciado José Miguel Villalobos Umaña, defensor de [Nombre 018], y por el imputado [Nombre 018] a título personal.
• G)Recursos formulados por el licenciado Mario Navarro Arias, defensor de [Nombre 028].
• H)Recursos interpuestos por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre 041].
• I)Recursos interpuestos por el licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre 077], quien es el presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 061].

V.- 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 los recursos de apelación.

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

Redacta la Jueza Patricia Vargas González y,

CONSIDERANDO:

I.- Tal y como se explicó en la resolución de esta cámara N° 2015-695, de las 11:00 horas del 12 de mayo de 2015, al haberse ordenado el reenvío (reposición de la fase de apelación) por parte de la Sala Tercera de la Corte Suprema de Justicia, mediante resolución Nº 1847-2014, de las 11:20 horas del 21 de noviembre de 2014, le corresponde a esta integración del Tribunal de Apelación de Sentencia Penal del Segundo Circuito Judicial de San José resolver las siguientes impugnaciones:

• A)Recursos planteados por [Nombre 033], a título personal, con excepción del punto d) de la sección tercera del recurso de apelación de sentencia, titulado “Impedimento al ejercicio de mi defensa material” (f. 172.524 a 172.526 frente, tomo XXXIX).
• B)Recursos interpuestos por el licenciado Rafael Gairaud Salazar, defensor particular de [Nombre 033].
• C)Recursos interpuestos por la licenciada Yamura Valenciano Jiménez, en su condición de defensora de [Nombre 022].
• D)Los formulados por los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores de [Nombre 006].
• E)Recurso planteado a título personal por los imputados [Nombre 001], [Nombre 028] , [Nombre 041] y [Nombre 018], en escrito autenticado por el licenciado José Miguel Villalobos Umaña.
• F)Recursos formulados por el licenciado José Miguel Villalobos Umaña, defensor de [Nombre 018], y por el imputado [Nombre 018] a título personal, en escrito autenticado por el licenciado Hugo Santamaría Lamicq, salvo los últimos dos reclamos que se interponen en ambas impugnaciones (específicamente, el décimo cuarto y el décimo quinto motivo), por estar relacionados con el tema de la acción civil resarcitoria.
• G)Del recurso planteado por la licenciada Yamura Valenciano Jiménez, en su condición de defensora de [Nombre01 001], se conocerán los motivos primero, segundo y sexto, este último únicamente en lo relacionado con la pena impuesta a [Nombre01 001] por el delito de corrupción agravada en su modalidad de cohecho impropio.
• H)Recursos formulados por el licenciado Mario Navarro Arias (fallecido), en su calidad de defensor de [Nombre01 028] y únicamente en lo que se relaciona con los extremos penales del fallo impugnado. Se exceptúan, por tanto, los tres últimos motivos del recurso de apelación de sentencia que interpuso en su condición de apoderado especial judicial de los demandados civiles [Nombre01 053]., [Nombre 054]., [Nombre 055]., [Nombre 056]., [Nombre 057]., [Nombre 058]. y [Nombre01 028] en su condición personal, en los cuales cuestiona lo decidido por el tribunal de juicio sobre los extremos civiles de la causa (vid., f. 172.262 a 172.270, tomo XVIII).
• I)Recursos interpuestos por los licenciados Federico Morales Herrera y Erick Ramos Fallas, en calidad de defensores de [Nombre 041].
• J)Recursos interpuestos por el licenciado Juan Luis Vargas Vargas, en calidad de apoderado especial judicial del señor [Nombre01 077], quien es el presidente con facultades de apoderado generalísimo sin límite de suma de la sociedad denominada [Nombre 061].

II.- Según se explicó en la resolución Nº 2015-0695 antes referida, la Sala Tercera de la Corte Suprema de Justicia, al ordenar el reenvío a esta fase procesal, expresamente excluyó del conocimiento de este tribunal de apelación una serie de temas, en concreto, lo relacionado con los extremos civiles del proceso; con los fraudes de simulación atribuidos a [Nombre01 001] y lo atinente a la absolutoria del imputado [Nombre02 033] por cuatro delitos de enriquecimiento ilícito. Además de lo anterior, este tribunal de apelación procedió a excluir otros extremos que, por no haber sido recurridos en casación, adquirieron firmeza, esto es, el sobreseimiento definitivo dictado a favor de [Nombre01 046] en razón de su muerte y lo dispuesto sobre el comiso del vehículo placas Nº []. Finalmente, la Sala Tercera también tomó otras decisiones en relación con una serie de temas relativos a la presente causa, que si bien no fueron puntualizadas en la parte dispositiva de su resolución deben ser acatadas por este despacho, ya que la sentencia es una unidad lógico jurídica, y como tal debe ser entendida integralmente. Por ejemplo, al resolver el tema de la prescripción, la Sala Tercera expresamente señaló: “[…] se anula la sentencia absolutoria por prescripción de la acción penal 2012-2550, dictada en autos por el Tribunal de Apelación de la Sentencia Penal, decretándose el reenvío para una nueva sustanciación como en derecho corresponda, dejando claramente establecido esta Sala que, en esta causa, la acción penal no se encuentra prescrita.” (F. 176.431, tomo XLIII, el subrayado no es del original). Otro ejemplo se encuentra en lo acordado con respecto a la prueba Nº 588. Según la citada Sala, esa prueba es lícita porque en su obtención era innecesaria la orden o aval de un juez costarricense. En razón de esto, anuló la sentencia de segunda instancia dictada por este tribunal de apelación (con una integración distinta) en cuanto absolvió a los imputados, y ordenó a este despacho “… realizar un nuevo examen integral de esta prueba junto con las restantes probanzas del caso.” (F. 176.448 frente, el destacado es nuestro). Como se observa, el órgano de casación no solo se pronunció en relación con estos tópicos, sino que condicionó de forma expresa el análisis que corresponde hacer con el reenvío de segunda instancia. Aparte de los ya mencionados, hay otros aspectos sobre los cuales la Sala también resolvió por el fondo, con fuerza preclusiva y declarativa, dando por finiquitada la discusión que se generó a su alrededor. Se trata de decisiones que, se reitera, aunque no están recogidas en la parte dispositiva de la sentencia de casación no pueden ser ignoradas, como lo solicitaron algunas de las partes durante la audiencia oral celebrada a finales de septiembre de este año, lo anterior en tanto han sido dictadas para el caso concreto por el órgano revisor que resuelve en última instancia. Esto significa que no se está ante la disyuntiva de aceptar o no los criterios vertidos por la Sala Tercera, sino ante el deber de respetar los límites que ese órgano jurisdiccional estableció para el reenvío a segunda instancia, entiéndase, ante el deber de acatar las decisiones que tomó con carácter preclusivo y declarativo, y que por ende, este tribunal de apelación no puede obviar ni revertir. Nótese que en un sistema de impugnaciones como el nuestro, donde se cuenta con dos recursos y en el cual el Ministerio Público también puede recurrir, no es de extrañar que la Sala Tercera, acogiendo un recurso de casación interpuesto por esa parte, sea por precedentes contradictorios, o por inobservancia o errónea aplicación de un precepto sustantivo o procesal, anule la resolución dictada por el tribunal de apelación de sentencia y confirme la del tribunal de juicio (así, p. ej., sentencias N° 2014-00416 de las 10:18 horas del 13 de marzo de 2014; N° 2013-00992 de las 9:52 horas del 9 de agosto de 2013, 2013-0956 de las 14:36 horas del 31 de julio de 2013 y 2013-01814 de las 16:03 horas del 3 de diciembre de 2013, entre otras). Del mismo modo, tal y como sucede en este asunto, puede ser que la Sala Tercera, no obstante anular la sentencia de apelación y validar algunos de los argumentos expuestos por el tribunal de juicio, considere necesario ordenar el reenvío a esta etapa procesal (p. ej., por existir reclamos pendientes de resolución), lo que en modo alguno autoriza a este despacho a desconocer las cuestiones que sí han sido resueltas y definidas. Esto porque el reenvío a segunda instancia no Nombre05 un examen nuevo en el sentido más amplio del término, sino más bien un examen que necesariamente se vincula a la sentencia, en este caso de casación, que anuló la resolución anterior. Por ende, el reenvío se debe efectuar dentro de los límites establecidos por ese pronunciamiento de casación. Nombre02 las cosas y con independencia del criterio que este tribunal de apelación pueda tener en relación con los extremos que la Sala resolvió y definió por el fondo, se concluye que en cuanto a estos, no se está en posición de discrepar al respecto, ni de emitir un pronunciamiento diverso. A continuación, se hará un recuento de esas decisiones que condicionan o limitan el reenvío a segunda instancia ordenado por la Sala de Casación.

III.- Sobre lo resuelto y definido (con efecto declarativo) por la Sala Tercera para el caso concreto: En la resolución Nº 1847-2014 citada atrás, la Sala Tercera se pronunció sobre varios temas que es necesario recapitular, a saber:

• 1)Concluyó que la acción penal no estaba prescrita para ninguno de los imputados.
• 2)Consideró lícita la prueba N° 588, en tanto “… era innecesaria la orden o aval de un Juez costarricense…”. No desconoce esta cámara que el criterio antes expuesto es distinto al asumido por la Sala Tercera, con diferente integración, en el expediente Nº 04-005356-0042-PE, específicamente, en la resolución Nº 499 de las 11:45 horas del 11 de mayo de 2011. En este fallo, por voto de mayoría, se declaró la nulidad de la prueba recabada en Panamá por medio del Tratado de Asistencia Legal en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (Nombre06.), Nombre02 como los elementos probatorios que derivasen de esta. Sin embargo, la divergencia que se pueda presentar entre las sentencias antes referidas es una situación que eventualmente deberá resolver el órgano de casación, siendo que a este tribunal de apelación lo que le corresponde es examinar los reclamos que formulan las partes a partir de lo decidido por la Sala en el caso concreto, a saber, que la prueba Nº 588 es lícita. Finalmente, es importante añadir aquí que el documento presentado por [Nombre01 158] a este tribunal, el día 27 de agosto de 2015 (cfr. 176.925 frente, tomo XLIV) y en el cual, con base en el artículo 29 de la ley sobre registro, secuestro y examen de documentos privados e intervención de las comunicaciones, Nº 7425 del 9 de agosto de 1994, revocó el consentimiento que había dado para que se usara la información bancaria de la empresa [Nombre01 215], no tiene ninguna importancia, ya que la decisión de la Sala Tercera, en el sentido de estimar válida la prueba referida, no se apoyó en el citado consentimiento, con lo cual la decisión que tome el titular del derecho es por completo intrascendente.
• 3)La Sala Tercera también declaró lícitas las pruebas Nº 543, 544 y 545, mismas que anteriormente habían sido declaradas ilícitas por este Tribunal de Apelación de Sentencia Penal, con otra integración (f. 176.473 vuelto, tomo XLIII).
• 4)Descartó la existencia de un vicio de falta de correlación entre acusación y sentencia tratándose de la condena impuesta a [Nombre01 006], Nombre02 como la errónea aplicación del artículo 346 inciso 3) del Código Penal (f. 176.499 vuelto).
• 5)Concluyó que la penalidad del corruptor no requiere la acreditación de un acuerdo efectivo de voluntades entre el sujeto activo y el funcionario público a corromper, la descripción del acto funcional pedido por el corruptor (f. 176.502 vuelto), o la verificación de las conductas supuestamente realizadas por los funcionarios públicos a los que se pretende corromper (f. 176.508 y 176.512 frente).
• 6)Estimó que la acusación formulada por el Ministerio Público sí describía cuál era el acto funcional solicitado a [Nombre01 001] (f. 176.502 vuelto a 176.503 vuelto).
• 7)Concluyó que en el verbo dar contemplado en el tipo de la penalidad del corruptor aplicable al caso particular, pueden incluirse las acciones de ofrecer y prometer (f. 176.507 vuelto y 176.512 frente y vuelto); y, finalmente, 8) Indicó que el artículo 346 inciso 3) del Código Penal contempla una serie de acciones que no se contradicen con lo preceptuado en el artículo 26 de la ley Nº 6872, sobre enriquecimiento ilícito de los servidores públicos del 17 de junio de 1983, vigente hasta la promulgación de la ley Nº 8422, contra la corrupción y el enriquecimiento ilícito en la función pública del 6 de octubre de 2004, de ahí que la existencia de una no supusiese la exclusión o derogatoria de la otra (f. 176.513 vuelto a 176.515 vuelto). Hechas las anteriores aclaraciones, se procederá a resolver los recursos planteados.

IV.- Dada la relación existente y por economía procesal, esta cámara abordará de manera conjunta y en primer término, el segundo motivo de los recursos formulados por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre01 041], Nombre02 como la sección segunda punto D.-, y la sección tercera punto A.-, del recurso de apelación de sentencia formulado por el imputado [Nombre02 033], a título personal. Recursos interpuestos por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre01 041]. Segundo motivo. Inobservancia y/o errónea aplicación de ley adjetiva. La sentencia impugnada se funda esencialmente en prueba inutilizable (prueba ilícita). El tribunal aplicó erróneamente los artículos 22, 23 y 24 del Código Procesal Penal y en consecuencia, inobservó lo dispuesto en los numerales 96, 180, 181 y 182 del Código Procesal Penal: “… La fundamentación del fallo es errónea en la determinación del marco fáctico porque se basa para sustentar los aspectos medulares de la declaración de responsabilidad penal de [Nombre01 041] en información obtenida mediando el quebrantamiento del debido proceso. Se impone la anulación total del fallo (pues la misma información inutilizable sirvió de fundamento esencial para la condena de otros acusados) y el reenvío para que un tribunal, integrado por jueces distintos de los que intervinieron ya en este caso, realice un nuevo debate en el que se respete el debido proceso…” (F. 173.091 frente). Como agravio, afirma que el fallo declaró de forma ilegítima la responsabilidad penal de [Nombre01 041], pues se apoyó en prueba inutilizable, específicamente, un testigo que declaró en juicio amparado en una ventaja procesal derivada de una actividad procesal defectuosa. Según señalan, de haberse resuelto conforme a derecho las gestiones que formularon varias partes en el debate, no se habría producido la citada prueba testimonial. Según los defensores particulares“… en el caso del coimputado [Nombre01 064], el Ministerio Público irrespetó normativa esencial al decidir y negociar con éste y su representación legal la suspensión del ejercicio de la acción penal -a la que como consecuencia del principio de obligatoriedad estaba sujeta la Fiscalía- y, transmitiendo información de manera omisa e incompleta, hizo incurrir en error procesal a la jurisdicción (la que tampoco siguió estrictamente los procedimientos impuestos por la ley) para que dispusiera la admisión del criterio de oportunidad solicitado. Porque tal es el propósito del criterio de oportunidad jurisdiccionalmente autorizado en la especie, [Nombre01 064] compareció ante el Tribunal sentenciador y, al amparo de una ventaja procesal indebidamente prometida, declaró en juicio y brindó información que utilizó esencialmente el órgano sentenciador para declarar la responsabilidad penal de [Nombre01 041] y de otros condenados en esta causa. La Sentencia impugnada, entonces, es contraria a derecho precisamente porque utiliza sustancialmente la información proveída por el “imputado colaborador” para sostener en lo medular la condenatoria impuesta…” (F. 173.092 y 173.093 frente). Tras citar varios extractos de la sentencia, donde se alude al testimonio de [Nombre01 064], los defensores afirman que se trató de prueba esencial, como bien lo reconoce el tribunal de mérito en el considerando XI.-, punto A). A partir de aquí, los recurrentes dan a conocer una serie de argumentos para explicar por qué consideran contrario a derecho el otorgamiento de un criterio de oportunidad a favor de [Nombre01 064] y el posterior empleo de la información que este brindó: “ …Descripción de Actuaciones Procesales: PRIMERO: En fecha 31 de enero del 2006, quien figuró como coimputado colaborador dentro del debate, el señor [Nombre01 064] , su defensor de confianza EWALD ACUÑA BLANCO, los fiscales auxiliares CRISS GONZÁLEZ UGALDE y CARLOS MORALES CHINCHILLA, Nombre02 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 [Nombre01 064] que se prescinda totalmente de su persecución en la causa 04-006835-647-PE. Lo anterior condicionado a que el imputado colaborador [Nombre01 064] 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 [Nombre01 064] permita acreditar en juicio la participación -entre otros- de los imputados en esta misma causa [Nombre01 041], [Nombre01 078], [Nombre02 033] y [Nombre01 046]. 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 Nombre02 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 [Nombre01 064]. 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 [Nombre01 064] y la conducta de [Nombre01 033]. Adicionalmente, hace referencia la decisión jurisdiccional a los hechos investigados en esta causa con relación a [Nombre01 041], [Nombre01 078], [Nombre01 046] y [Nombre01 033], 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…” (F. 173.096 a 173.099 frente). Para los impugnantes, la fiscalía le debe proporcionar a la autoridad jurisdiccional la información completa para que esta, a su vez, pueda controlar la legalidad del criterio de oportunidad otorgado, sobre todo para valorar si el reproche que se le puede hacer al colaborador es de menor envergadura. Ahora, el marco fáctico proporcionado por la representación fiscal a la licenciada Ana Gabriela Sánchez Arroyo, en el memorial de fecha 30 de mayo de 2007, por medio del cual solicitó la aplicación del criterio de oportunidad por colaboración a favor del imputado [Nombre01 064], no correspondía completamente al que estaba siendo investigado en ese momento, ya que para entonces, había prueba que vinculaba a [Nombre01 064] con otros actos cuestionables: “… En efecto, para ese momento de la investigación ya se habían agregado al legajo respectivo sendas declaraciones vertidas por el coimputado [Nombre02 064], Nombre02 como varias experticias de la Sección de Delitos Económicos y Financieros del Organismo de 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 Nombre01 de la señora [Nombre02 080] , el cual dijo haber recibido de [Nombre 046], supuestamente, por gestiones de cobro que había realizado ante [Nombre02 091], a solicitud tanto de este último, como de [Nombre01 033]. En este punto valga comentar, que en otras de sus declaraciones, [Nombre01 064] se había referido brevemente a otras sumas de dinero recibidas de [Nombre01 046]: 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 [Nombre01 083]., y [Nombre 085]., a través de [Nombre 068].” Asimismo, el mencionado informe señala en el punto 5.11 que, aunque [Nombre01 064] 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 [Nombre 058]., a [Nombre01 064] se relacionaba también con otros contratos suscritos por el ICE, para la compra de centrales fijas [Nombre 091]. Es importante destacar -siguiendo esta misma línea de exposición- que [Nombre01 064] 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, [Nombre01 064] confiesa ante la Fiscalía haber recibido dineros o pagos indebidos con relación a la empresa [Nombre 090]. 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 [Nombre01 064] 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 [Nombre01 064] 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 [Nombre01 064], Nombre02 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 [Nombre01 064] distintos a los relacionados con el mencionado contrato del ICE no fueron informados como correspondía a la autoridad jurisdiccional. Pero precisamente fue la información que se conoció durante el Debate sobre el convenio para la aplicación del criterio de oportunidad lo que, junto con las manifestaciones de la Licenciada Maribel Bustillo Piedra, quien en su condición de Fiscal de la Unidad de Delitos Varios del Ministerio Público plasmó por escrito 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 08-000032615-PE (de los cuales se adjuntan fotocopias al presente Recurso de Casación y desde ahora solicitamos se traiga ad effectum videndi y como prueba para la decisión de este motivo de casación) lo que, a la par de las manifestaciones que espontáneamente hiciera la Licenciada Criss González ante la opinión pública y que en algún momento fueron informadas en este Debate por tener relación con lo que fue objeto de negociación en el criterio de oportunidad acordado con [Nombre01 064] permiten concluir sin lugar a dudas y sin que ello pueda ser debatido, que lo negociado oportunamente por la Fiscalía con el encartado [Nombre01 064] abarca el ejercicio de la acción penal respecto de los otros hechos delictivos investigados y que son distintos de los relacionados con la contratación de las 400 mil líneas de telefonía celular ...” (F. 173.101 a 173.104 frente, la transcripción es literal). Citan los recurrentes lo que indicó la licenciada Bustillo Piedra en el memorial referido, a saber: “En el acuerdo en mención puede observarse, el Ministerio Público en el ejercicio de sus facultades conferidas, se compromete a solicitar a favor de [Nombre01 064], se prescinda de la persecución penal, no solo del hecho referido al dinero indebidamente recibido por parte de la empresa [Nombre 091] 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.” (F. 173.104 y 173.105 frente). Los impugnantes agregan que del memorial de fecha 25 de julio de 2008, cuya fotocopia adjuntan y consta en el expediente que ha sido ofrecido ad effectum videndi, se extrae lo indicado en este motivo. El acuerdo entre el Ministerio Público y [Nombre01 064] fue prescindir del ejercicio de la acción penal en relación con todos los hechos conocidos e investigados por la fiscalía al momento en que se da esa negociación, es decir, al 31 de enero de 2006. No obstante, cuando se solicitó la autorización jurisdiccional para la aplicación del criterio de oportunidad, se omitió informar acerca de los hechos bajo investigación en el expediente número 04-6835-647-PE. Los licenciados Ramos y Morales dicen pretender demostrar a esta cámara: que esos hechos eran más de los descritos en la relación originalmente proporcionada por la representación fiscal al formular la solicitud de aplicación del criterio de oportunidad; y que dicha omisión es contraria a la Constitución Política y al Código Procesal Penal, porque la fiscalía estaba obligada a suministrar al órgano judicial toda la información para decidir. El que la información estuviese incompleta constituye un defecto que a su vez permitió aprobar el criterio de oportunidad que favoreció a [Nombre01 064]. Los defensores particulares añaden que estas mismas actuaciones procesales del Ministerio Público, junto con la resolución de las 9:51 horas, del 1° de junio de 2007 (a saber, la que acuerda la aplicación del criterio de oportunidad a favor de [Nombre01 064] y ordena la suspensión del ejercicio de la acción penal pública), no podían constituir el presupuesto que validara la decisión jurisdiccional contenida en la resolución de las 13:30 horas del 2 de septiembre de 2010, emitida interlocutoriamente durante el debate y que legitimó, por decisión de mayoría, la declaración que rindió [Nombre01 064] en el juicio, declaración que resulta contraria a lo dicho en el artículo 96 del Código Procesal Penal, pues, reiteran, la ventaja ofrecida a [Nombre01 064] como consecuencia de la aprobación jurisdiccional para la aplicación del criterio de oportunidad no se ajustó a las previsiones legales. Tras hacer una extensa transcripción de lo dicho por el a quo sobre el tema (vid. folios 173.107 a 173.113 frente, tomo XL), los recurrentes concluyen que el tribunal estimó innecesario determinar si la acción penal pública que debió ejercitarse en relación con todos los hechos delictivos cometidos y atribuibles a [Nombre01 064], fue ilegítimamente abandonada por la fiscalía, a partir de los efectos propios del criterio de oportunidad otorgado de forma indebida. Esto a pesar de la incidencia que esa circunstancia tenía al establecer la legitimidad de la declaración de [Nombre01 064] como fuente de información, que luego fue usada para condenar a [Nombre01 041]. El tribunal, por tanto, cerró los ojos ante la realidad que se le mostró, y permitió la consolidación de una serie de efectos indeseables del acto procesal defectuoso. En un sentido diverso, que los recurrentes comparten, se expresó el juez Camacho Morales. Tras transcribir lo indicado por este profesional, los impugnantes exponen lo que desde su óptica, son las principales conclusiones del voto de minoría: “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 [Nombre01 064]; 3. Declaración rendida en juicio por el coimputado [Nombre01 064] 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 [Nombre01 041]...” (F. 173.131 y 173.132 frente). Para la defensa, a raíz de lo anterior se impone lo siguiente: declarar con lugar el presente recurso; declarar que la solicitud de aplicación del criterio de oportunidad contenida en el memorial de folio 1 y siguientes del legajo respectivo (prueba N° 776) constituye una actuación procesal defectuosa; declarar ilegítima, por sostenerse esencialmente en actos procesales defectuosamente verificados, la resolución de las 9:51 horas del 1° de junio de 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; dimensionar los efectos de tales declaraciones y también concluir que es ilegítima la resolución del tribunal de mérito de las 13:30 horas del 2 de setiembre de 2010, en tanto Nombre07 la producción del testimonio de [Nombre01 064] en juicio. Igualmente, se deberá declarar que la sentencia no debió apoyarse en la declaración rendida en el contradictorio por [Nombre02 064] y que corresponde su anulación. Solicitan se acoja el motivo y se anule el fallo, disponiéndose el reenvío a la etapa de juicio para una nueva sustanciación conforme a derecho. Finalmente, es importante señalar que de la prueba ofrecida por los recurrentes para demostrar el vicio que reprochan, se admitió en esta etapa procesal el expediente 08-000032-615-PE, seguido contra Nombre08, donde se le denunció por la supuesta comisión del delito de incumplimiento de deberes, Nombre02 como las fotocopias que de este fueron aportadas. Recurso de apelación de sentencia formulado por [Nombre02 033]. Sección Segunda. Inconformidad con la incorporación y valoración de la prueba. Errores groseros en la incorporación y valoración de la prueba por el voto de mayoría por falta de determinación precisa y circunstanciada de hechos acreditados por el tribunal. El voto de mayoría adolece de 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. Como fundamento del reclamo, se citan los artículos 142, 184, 361 inciso b), 363 inciso c), 458 y 459 del Código Procesal Penal. D. Valoración de la declaración como indiciado del confeso [Nombre02 064]. El voto de mayoría reconoció que la declaración de [Nombre01 064] no es prueba, sin embargo, aceptó su dicho sin que ninguna prueba o indicio lo respaldase en puntos sustanciales para poder relacionar a [Nombre01 033] con el ilícito. Por esto la fundamentación del fallo 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, cuya veracidad no corrobora ninguna otra prueba. Solicita se anule el fallo y se declare su absolutoria. El tribunal de juicio reconoce que, ante la declaración del imputado, es necesario examinar la misma a la luz de otros medios probatorios. Se trata de la línea expresada por la Sala Constitucional en la resolución N° 12090-09. Ahora, lo que sucede es que, al momento de valorar el dicho de [Nombre01 064], las juezas olvidan lo anterior. Si bien es cierto que no se trata de que haya comprobación de cada aspecto del relato, sí se requiere un conjunto de indicios convergentes sobre el meollo de la declaración del imputado confeso. Para dar credibilidad a [Nombre01 064], el tribunal afirma que: a) los pagos posteriores confirman la instigación. Para el apelante, incluso admitiendo su existencia, tenemos que esos pagos pudieron ser por otros conceptos (créditos, donaciones sin contraprestación, enriquecimiento ilícito, pagos por hechos consumados, por deudas anteriores, etcétera). Es decir, su existencia no prueba nada sobre el delito. b) Había un plan delictivo de [Nombre01 091] cuya existencia se apoya en el dicho de [Nombre01 064]. El recurrente considera que esto no dice nada sobre su participación como instigador. [Nombre01 064] reconoció haber aceptado la oferta de [Nombre01 091] antes de reunirse con [Nombre01 033] (reunión cuya existencia [Nombre01 033] también pone en entredicho). Nombre02 las cosas, lo que [Nombre01 064] haya reflexionado al llegar a su casa es algo personal, siendo que además lo que [Nombre01 064] manifestó fue que podía necesitar ayuda para cumplir el plan, no que requiriese convencimiento. Tanto [Nombre01 064] como los testigos fueron contestes al decir que [Nombre01 033] nunca solicitó algo a un director o funcionario del ICE con respecto a la licitación de las 400 mil líneas GSM, o con relación a cualquier compra o contrato. Finalmente, pese a que [Nombre01 064] dijo haber buscado al recurrente por si eventualmente ocupaba su ayuda, nunca manifestó habérsela pedido, o al menos, haberle informado cuáles eran las condiciones que supuestamente le habrían solicitado cumplir. Por otra parte, es absurdo entender que la reunión entre [Nombre01 033] y [Nombre01 064] se dio solo porque todos los supuestos intervinientes estaban en Costa Rica (según los registros de entrada y salida del país de [Nombre01 064], [Nombre01 041] , [Nombre01 078] y [Nombre02 033] ). Incluso, su defensor demostró que [Nombre02 078], ni a fines de 2000, ni a principios de 2001, salió del país un sábado, como lo indicó [Nombre02 064]. Además, el tribunal tergiversó lo dicho por la defensa del impugnante. Nunca se afirmó que [Nombre01 033] no estuviese en el territorio nacional. Lo que dijo el licenciado Gairaud fue que probablemente se había dicho que la reunión ocurrió a fines de noviembre o principios de diciembre porque eran fechas en las que su defendido estaba en Costa Rica. En el recurso se afirma que las juezas incurren en una "ciega credibilidad" a [Nombre01 064], a pesar de todas las inconsistencias en que incurre: "... es aún más injustificado cuando las señoras juezas fueron testigos presenciales de las declaraciones de [Nombre01 064] respecto a los ingresos injustificados cuando fue Ministro de Vivienda, y los otros ingresos relacionados con otros presuntos delitos confesados por [Nombre01 064] y corroborados por el OIJ… Las cuentas bancarias en colones y otras posibles cuentas de [Nombre01 064] a Nombre01 suyo o de su esposa no fueron investigadas porque no lo pidió el Ministerio Público,… Tampoco se investigaron los otros posibles delitos de [Nombre01 064] aunque se le informó de ellos al Ministerio Público, pues los fiscales no pidieron que se investigaran… 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 [Nombre01 064] . 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 [Nombre01 064]? ¿Cuándo es en mi contra no rige el principio de inocencia, sino sólo para el imputado confeso [Nombre01 064]?" (F. 172.437 y 172.438 frente). El juez Camacho Morales, en su voto salvado, considera que no se demostró una promesa previa por parte de los presuntos corruptores y explica además cómo las fechas en las que se ubicó esta promesa no son compatibles con las tareas supuestamente encomendadas a [Nombre01 064]. Tras citar varios extractos de la sentencia (tanto del voto salvado como del voto mayoritario), el recurrente afirma que el tribunal aceptó las mentiras de [Nombre01 064] a pesar de que para ello, debió quebrantar las reglas de la sana crítica. En lo relacionado con el criterio de oportunidad concedido a [Nombre01 064] , el apelante cuestiona que las juezas se negaran a resolver sobre la legalidad y la aprobación judicial de ese criterio. Asimismo, si bien en la sentencia se argumentó que [Nombre01 064] quiso cooperar desde su primera declaración en setiembre de 2004, no se tomó en cuenta que en esa narración describió hechos totalmente contrarios a los que aceptó en mayo de 2005, cuando llegó a un acuerdo para aplicar un procedimiento abreviado, hechos que son prácticamente idénticos a los que se incluyeron para el acuerdo del criterio de oportunidad. Tampoco se tomó en cuenta que la forma en la cual [Nombre01 064] es tratado en esa primera declaración, es distinta a la forma en que se trató a los demás imputados. Esto hace ver que, desde un primer momento, [Nombre01 064] tenía un arreglo con el Ministerio Público. El voto de mayoría señala que si bien [Nombre01 064] salió impune de sus acciones, eso no fue el resultado de su decisión, sino de la aprobación legislativa del instituto y de la aprobación que al respeto otorgaron otros jueces. [Nombre01 033] critica la anterior aseveración, al creer que el tribunal de juicio tenía el deber de pronunciarse sobre la aprobación del criterio de oportunidad y se negaron a hacerlo. Las juezas creen ingenuamente que [Nombre01 064] colaboró motivado por supuestas razones patrióticas, para defender la moral en la función pública, y afirman que si quedó impune es por la querella que en su contra presentaron los licenciados Fernando Apuy y Freddy Coto, misma que no permitió seguir con un juicio abreviado que implicaba prisión para [Nombre01 064]. Pero esto no es así. Consta en el expediente que la pena negociada de 4 años había sido cumplida con el arresto domiciliario que se impuso a [Nombre01 064]. Además, se aprecia que Apuy y Coto nunca se opusieron al abreviado, sino que fue la intransigencia del defensor de [Nombre01 064] lo que impidió llegar a un acuerdo entre las partes (prueba N° 309). El impugnante añade que el Ministerio Público, en vez de prescindir parcialmente de la persecución penal, limitándose a no acusar a [Nombre01 064] por los hechos relacionados con las cuatrocientas mil líneas, prescindió totalmente de la persecución penal, incluyendo otros delitos confesados por él. Nada dijo el voto de mayoría sobre la negativa del Ministerio Público a investigar esos otros delitos, que fueron comprobados a través de los reportes de contables del O.Nombre09. Tampoco se dijo nada con respecto a las circunstancias en que se dieron esos hechos, o a las sumas millonarias que tras el criterio de oportunidad quedaron en poder de [Nombre02 064]. Ha sido clara la tendencia a favorecer a esta persona en todo. Reitera que el tribunal no valoró con rigor esta declaración. La tomó como la única verdad, dejando de lado mentiras y contradicciones. Afirma que el a quo lo condenó de previo y mostró animadversión hacia él, cuando aludió a un deber de lealtad que impera en organizaciones delincuenciales; cuando le impidió interrogar a un perito y cuando sin fundamento, dijo que [Nombre01 064] era persona de confianza del recurrente. Insiste en que fue clara la tendencia a favorecer a [Nombre01 064], por ejemplo, cuando se afirmó que este no aceptó más designaciones en el gobierno, o cuando se negó a escuchar declaraciones sobre sus otros delitos. El tribunal también confundió las relaciones del ICE con la presidencia de la República. La compra o alquiler de equipos es tarea del ICE, detalle que deja sin sustento páginas de páginas de argumentación del voto de mayoría. La alusión a desayunos, almuerzos y comidas dados por [Nombre01 091] a funcionarios públicos, como lo hacen a diario cientos de empresas, a lo sumo demuestra que [Nombre01 064] recibió dinero de [Nombre01 091] , pero eso no dice nada sobre la forma en que [Nombre01 064] pactó con [Nombre01 091] , o sobre las reuniones en [Nombre01 094] o en la casa del recurrente. En la página 1.679 de la sentencia se sostiene que, según [Nombre01 064], para la recepción de la dádiva se debía involucrar a todos los Nombre10 del consejo director del ICE y que para él, esto era difícil de conseguir. Sin embargo, esto es contradictorio con lo dicho por el mismo [Nombre01 064] y que las juezas recogen en la página 1.675 del fallo, en el sentido de que lo solicitado por [Nombre01 091] era que se diera la licitación, que no era necesario que [Nombre01 064] hablara con nadie, bastando con que la licitación no se abortara. También es contradictorio con lo dicho por el imputado colaborador sobre la reunión en casa del recurrente, pues en esta ni siquiera mencionó las tres tareas que le encomendó [Nombre01 091], ni le solicitó ayuda alguna a [Nombre01 033]. Por otra parte, el apelante afirma que, contrario a lo dicho en la sentencia, se demostró que en el proceso para migrar a GSM tuvieron participación funcionarios de diversas instancias técnicas y administrativas del ICE y sus siete directores. Nombre02 las cosas, no cabe atribuir esa migración a las acciones de dos directores confabulados con [Nombre01 091], sobre todo si esa decisión ya estaba clara desde mayo y junio de 2000 y se anunció el 6 de octubre por la presidencia ejecutiva, meses antes de que se dieran las presuntas reuniones de [Nombre01 091] con esos dos directores. Ahora, en las páginas 1.162 y 1.163 del fallo de mérito, el tribunal trata de explicar esto, afirmando que una vez hecho el anuncio por parte de [Nombre01 095], cobra sentido que en el memorando remitido por [Nombre01 098] a [Nombre 041] el 10 de noviembre de 2000, le manifieste que si bien es positivo aquel anuncio, era necesario mantener la presión y no permitir que se siguieran favoreciendo los intereses de Ericsson y Lucent, pues parecía que el ICE pretendía una nueva compra por 200 mil líneas para ampliar las actuales, con tecnología TDMA. Según la sentencia, esto explica por qué los corruptores no consideraban un hecho la anunciada migración de tecnología para diciembre de 2001. Ante esto, el recurrente cuestiona cómo una recomendación de precaución básica de no descuidar las cosas y mantener presión, permite concluir que la promesa tuvo lugar, dejando de lado que se había suspendido la compra directa de TDMA y se había declarado la migración de tecnología a GSM porque era más ventajosa. Dice el tribunal que todavía a diciembre de 2000 se sigue contratando tecnología TDMA, con lo cual no lleva razón la defensa al decir que desde octubre de ese año ya se había hecho la migración. Frente a esta aseveración, el impugnante replica que no se analizó cómo se pasó de contratar un 100% en tecnología TDMA a solo un 33% y se introdujo la tecnología GSM, siendo que además era conveniente satisfacer la demanda acumulada. Otra muestra del “subconsciente en el extraño razonar del voto de mayoría”, indica el apelante, se aprecia en las páginas 1.686 y siguientes, donde se refiere que los pagos de [Nombre01 091] a [Nombre01 064] y las transferencias de [Nombre01 064] a [Nombre01 033] son prueba tanto de las reuniones como del acuerdo para delinquir que surgió en esos encuentros. Tal conclusión es absurda, se indica en el recurso, pues no se deriva de las premisas: “… alegar que esos movimientos de recursos confirman las reuniones en [Nombre01 094] y en mi casa, es lógicamente igual que pretender que si [Nombre02 064] roba al ICE, y luego [Nombre01 091] hace una dádiva a [Nombre01 064] y [Nombre01 064] me transfiere unos recursos, eso significaría que [Nombre01 064] se reunió con [Nombre01 091] que le ofreció dinero por robar al ICE, y luego conmigo que lo instigué para que lo hiciera. Otra vez debo exclamar: ¡Válgame Dios!” (F. 172.448 frente). Nombre11 en este orden de ideas, señala que entre febrero y marzo de 2001, cuando ya está en curso el proceso para la licitación de las 400 mil líneas celulares GSM, por la no aceptación por la Contraloría de la compra directa de las 600 mil líneas celulares que había acordado el ICE en diciembre anterior, se dan gestiones para acelerar una compra directa por 160 mil líneas GSM, a fin de atender la demanda. Según el voto de mayoría, esa contratación directa suponía para [Nombre01 091] un cheque en blanco girado por el ICE, porque concretaba la migración y le ahorraba participar en un concurso público. De esto extrae el tribunal que la actuación de [Nombre01 064] no fue contraria los compromisos asumidos, como lo sostuvo la defensa. Frente a esto, [Nombre01 033] cuestiona por qué, dos meses antes, cuando según [Nombre01 064], pactó con [Nombre01 091], el acuerdo no contempló una compra directa sino una licitación. El voto de mayoría también dijo que, por no haber concurrido [Nombre01 068] con su voto para favorecer la compra directa de las 160 mil líneas GSM, fue que se dio el acuerdo entre [Nombre01 068] y [Nombre01 091]. Nombre02 las cosas, pregunta el apelante, siendo que [Nombre01 064] no asistió a la primera reunión en que se aprobó esa compra directa, ¿no sería por ello que [Nombre01 091] le hizo la oferta? En este punto, el recurrente insiste en una “poderosa predisposición subconsciente” del tribunal, dirigida a elaborar conclusiones contrarias a la lógica y el sentido común. Como última muestra de lo anterior, cita la página 1.703 del fallo, donde a pesar de que se reconoce que la dádiva recibida por [Nombre01 064] se relaciona con contratos suscritos por el ICE para la compra de centrales fijas, el tribunal entiende que los pagos por centrales fijas son para la migración a GSM. Finaliza su exposición repitiendo que el fallo de mayoría se apoyó en la declaración de [Nombre01 064], persona que se valió de la impunidad que le brindó el criterio de oportunidad y de una actividad llena de irregularidades por parte del Ministerio Público, órgano que no investigó otros delitos de su parte. Subraya que [Nombre01 064] aceptó desde el primer momento la propuesta, tal y como lo venía haciendo en otros casos que no se quisieron investigar, y que nunca requirió ser determinado por otra persona. Añade: "No hay manera de poder calificar los actos de los cuales me acusa [Nombre01 064] 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..." (F. 172.450 y 172.451 frente). Sección Tercera. Inconformidad con la fundamentación jurídica. A. Criterio de oportunidad. El voto de mayoría se basa en prueba ilegal, concretamente en la declaración rendida por [Nombre01 064] como supuesto imputado colaborador confeso, protegido por un criterio de oportunidad ilegalmente solicitado y aprobado y en acciones de hecho del Ministerio Público que, sin aprobación judicial, le otorgó impunidad de manera ilegítima por otros delitos reconocidos por él mismo. En cuanto al agravio, explica que se aceptó un instituto aplicado de manera irregular, con gravísima violación del ordenamiento y sin el cual el caso es insostenible. Solicita se anule la declaración rendida por [Nombre01 064] en el debate y en consecuencia, siendo que la sentencia carece de sustento, se anule la condena y se le absuelva del delito acusado. Tras señalar que se quebrantaron varias normas al conceder el criterio de oportunidad, indica que la única cosa que existe en su contra es la declaración de [Nombre01 064], que no es prueba. Además, en el video se puede apreciar que es el defensor de [Nombre01 064] quien le dicta las respuestas que debe dar en el debate. Las señoras juezas, en un voto previo a la sentencia (de las 13:30 horas del 2 de setiembre de 2010), ya se habían declarado incompetentes para resolver la protesta por actividad procesal defectuosa que la defensa planteó contra el trámite dado al criterio de oportunidad. En cambio, el juez Camacho Morales, en minoría, dijo que el tema sí era controlable, concluyendo que en este asunto el criterio se otorgó de forma irregular (cfr. la sentencia, voto de minoría, páginas 1.981 a 1.987). Con una extensa transcripción de lo dicho en ese voto salvado, el recurrente subraya que la resolución que lo otorgó carecía de fundamentación; que no se valoró adecuadamente el tema del menor reproche que cabe hacer al colaborador beneficiado con el criterio frente al imputado que se ve perjudicado con su aplicación; que había que valorar los delitos que se dejaron de indagar y que fueron confesados por [Nombre01 064] y corroborados por el Nombre12. (delitos que además, en vano se solicitó a los fiscales investigar y que se ocultaron al juez que aprobó el criterio de oportunidad). Afirma que fue en el debate cuando tuvieron acceso por primera vez, a lo negociado con ocasión del criterio, determinando que no se incluían más que los hechos relativos a las 400 mil líneas GSM, lo que es contradictorio con lo dicho por la fiscal Maribel Bustillo, al pedir que “se desistiera” de la denuncia interpuesta contra Nombre08'anese por incumplimiento de deberes y favorecimiento personal, por no investigar otros pagos hechos a [Nombre01 064]. En esa ocasión, la fiscal reconoció que el criterio comprendía hechos delictivos distintos a la contratación de las 400 mil líneas. Ahora, en sus alegatos sobre el tema, la fiscal Greysa Barrientos dijo que para comparar el reproche del imputado colaborador y de los demás acusados, solo se debía tomar en cuenta el caso referente a las 400 mil líneas GSM, tesis que acogió el voto de mayoría. La fiscal Criss González dio declaraciones a la prensa, indicando que el criterio no comprendía otros hechos cometidos por [Nombre01 064], lo cual es una simple lectura del documento en que la fiscalía solicitó la autorización judicial para aplicar el instituto, de la resolución de la jueza que lo aprobó y del convenio suscrito con [Nombre01 064]. El juez Camacho Morales apuntó también lo improcedente de los arreglos monetarios que realizó la Procuraduría de la Ética Pública, pues se legitimó a [Nombre01 064] para mantener sumas millonarias en dólares. El cálculo del juez Camacho además se quedó corto, porque no tomó en cuenta otros ingresos que confesó [Nombre01 064] pero que el Ministerio Público se negó a investigar, de manera que ha sido el propio Estado el que le ha permitido quedarse con más de un millón y medio de dólares. Solicita se decrete la nulidad de la sentencia y se disponga el sobreseimiento, o su absolución.

V.- Los reclamos se declaran con lugar: Con el propósito de que esta exposición sea lo más clara posible, esta cámara dividirá el análisis en varios apartados, a saber: 1) Competencia del tribunal de juicio para verificar el cumplimiento de los requisitos legales contemplados para aplicar un criterio de oportunidad. 2) Examen del criterio de oportunidad otorgado a [Nombre01 064]. Vicios presentes en su trámite y en la resolución que lo autorizó. 3) Inclusión hipotética de las conductas omitidas por el órgano requirente al solicitar el criterio de oportunidad, y nueva valoración sobre el reproche que cabe formular en cuanto a las conductas imputadas a [Nombre01 064], en comparación con las de otros imputados. Ponderación de los argumentos esgrimidos por el tribunal de juicio en cuanto al tema en particular. 4) Credibilidad que cabe otorgar a la declaración del imputado colaborador.

• 1)Competencia del tribunal de juicio para verificar el cumplimiento de los requisitos legales contemplados para aplicar un criterio de oportunidad. Por mayoría y mediante resolución de las 13:30 horas del 2 de septiembre de 2010 (cfr. folios 13.676 a 13.736 vuelto del tomo XXVIII), el tribunal de juicio se negó a conocer las protestas formuladas en contra del criterio de oportunidad aplicado, sobre su “procedencia o improcedencia” y los posibles “aciertos o desaciertos” de la resolución autorizante emitida por la jueza penal. Se trata de una resolución -la del tribunal de juicio- que por ser sumamente extensa no conviene transcribir, sin embargo, que se puede sintetizar de la siguiente forma: i) El juez del procedimiento preparatorio o intermedio es el único competente para ejercer el control jurisdiccional sobre la aplicación del criterio de oportunidad [en particular, el contemplado en el inciso b) del numeral 22 del Código Procesal Penal] y sus efectos desincriminantes. La solicitud para su aplicación se debe plantear ante el tribunal de la etapa preparatoria o intermedia. Además, por su complejidad, una vez autorizada su aplicación, la consecuencia desincriminante queda supeditada al cumplimiento de la condición suspensiva, correspondiendo posteriormente al juez penal evaluar la eficacia de la colaboración y la solución definitiva del asunto. En la fase de juicio, el tribunal deberá velar por la legalidad de la recepción del relato del colaborador y su valoración conforme a las reglas de la sana crítica. ii) El tribunal de juicio no tiene competencia para verter pronunciamiento sobre la implementación del criterio de oportunidad, ya que solo conoce del asunto una vez declarada la apertura a juicio. El a quo asegura que Nombre02 lo ha considerado la Sala Tercera, pues: “…ni siquiera en supuestos donde no se ha tramitado el criterio de oportunidad a favor de una persona que se presenta a rendir declaración al debate, ha estimado dicho órgano de casación que corresponda al tribunal de juicio evaluar los presupuestos para su procedencia, ni verter tal pronunciamiento en sustitución del juez penal, abstrayendo, incluso de la competencia del juez de juicio, cualquier valoración respecto del convenio de colaboración (ver resoluciones Nº 392-1999 y Nº 795-2009 de la Sala Tercera). Contrariamente, ante esos casos el señalado órgano de casación ha determinado que por no haberse ejercido el control por parte del juez penal no es posible recibir al deponente en el debate (vbgr. votos Nº 795-2009 y Nº 1061-2008 de la Sala Tercera), dejando totalmente claro que el juez penal es el único competente para realizar la tarea de referencia.” (F. 13.681 frente). Por ende, no se puede pretender que el tribunal de juicio defina la suerte de un criterio de oportunidad que ya fue resuelto y sobre el cual se admitió la declaración de [Nombre01 064] en el debate. iii) Si el tribunal de juicio decidiese examinar la decisión que acogió el criterio de oportunidad para evaluar sus efectos desincriminantes, se estaría atribuyendo el conocimiento de un asunto que pende ante otro órgano jurisdiccional, lo que es prohibido por los artículos 11 y 155 de la Constitución Política y 4 de la Ley Orgánica del Poder Judicial, según los cuales los jueces deben cumplir los deberes impuestos por la ley y no arrogarse facultades que no les han sido concedidas. Del mismo modo, tal proceder afectaría principios y garantías varias (legalidad, juez natural, independencia judicial, imparcialidad y debido proceso). El tribunal no puede conocer protestas dirigidas a invalidar el criterio de oportunidad ya otorgado sin que el legislador lo autorice a ello, a aprobar o rechazar solicitudes fiscales para aplicar el criterio, para controlar la actuación del órgano jurisdiccional encargado de esa tarea, o para conocer a través del recurso de apelación, las objeciones de las partes contra esa decisión del juez penal. El legislador tampoco previó el control vertical tratándose de este tipo de resoluciones, situación que justificó la Sala Constitucional en la resolución Nº 12090-2009. Es la declaración rendida por la persona beneficiada y no la resolución que aprueba criterio, la que debe ser analizada por el tribunal de juicio y cuestionada por las partes. iv) A diferencia de lo que pasa con otras resoluciones (vg., el auto de apertura a juicio, la denegatoria de una solicitud de sobreseimiento, o el rechazo de un “incidente de nulidad”) que se tramitan dentro del mismo proceso, tratándose del criterio de oportunidad se articula un procedimiento autónomo y diverso en el cual se discute si procede o no su aplicación (votos Nº 1119-2005 de la Sala Constitucional y Nº 114-2006 y 404-2006, ambos de la Sala Tercera). Mientras que las primeras decisiones citadas no pueden ser recurridas, porque es factible su discusión en etapas posteriores del proceso (lo que se conoce como control horizontal), en el caso del criterio de oportunidad el sobreseimiento que se llegue a dictar a favor del colaborador sí puede ser apelado. Por esto, sostener que la ausencia de un recurso de apelación contra la resolución que autorizó el criterio de oportunidad abre la puerta a una especie de control horizontal en el debate, es incorrecto, ya que el tribunal de juicio no es el competente para resolver ese tema, siendo que el control vertical está previsto en relación con el sobreseimiento que eventualmente se llegue a emitir. v) Ni el tribunal de juicio ni el órgano de casación pueden controlar la legalidad de los efectos desincriminantes del criterio de oportunidad, ya que esto concierne al juez penal. Cosa distinta es la evacuación de la prueba y su valoración, que sí es competencia del tribunal de sentencia y su contralor. El tribunal que autorizó el criterio solo está sometido al ordenamiento jurídico y su decisión no se puede supeditar a una posterior valoración del tribunal de juicio, cuando el legislador no lo ha dispuesto de esa manera; vi) La imparcialidad del tribunal de juicio puede resultar afectada si valora los supuestos de procedencia del criterio de oportunidad. La acusación es la que describe los hechos acusados y es la base sobre la cual deberá realizarse el juicio. El juzgamiento se efectúa en relación con personas específicamente acusadas, no sobre otras con condición diversa (art. 361, 363 y 365 del C.P.P.). Por esto el colaborador no figura como imputado en la causa, sino como fuente de prueba. Su declaración debe valorarse de manera individual y en conjunto con las demás pruebas, pero no para decidir sobre su responsabilidad penal, ni para contrastar esa responsabilidad con la atribuida a los otros imputados. Esta es una razón adicional para que el legislador decidiera sustraer de la competencia del tribunal de juicio la valoración de los efectos desincriminantes del instituto, en tanto no puede conocer sobre un mecanismo ya ordenado por otro órgano jurisdiccional, aplicado a quien no es acusado en el proceso en examen. vii) Con una redacción alambicada, el tribunal de mérito arguye que el criterio de oportunidad no es técnicamente un medio de prueba. Su naturaleza no es probatoria, sino desincriminante. Cuando el compromiso de colaboración consiste en deponer durante el debate, será hasta entonces que la declaración asuma el carácter de elemento de prueba. La vía o el canal a través del cual se reciben dichas manifestaciones por parte del tribunal de juicio es el medio de prueba, que por razones técnicas nunca podrá ser el propio trámite seguido para la aprobación del criterio. Dicho en otras palabras, el procedimiento realizado para la obtención de la declaración no constituye un medio de prueba. Nombre02 interpreta el a quo la resolución Nº 6808-2002 de la Sala Constitucional, cuando afirma que el tribunal de juicio es competente para ejercer el control de legalidad del aludido instrumento, sea solo para revisar la concurrencia de los requisitos legales para la aplicación del instituto, pero no para decidir si se debió otorgar o no el señalado criterio, u otros temas relacionados con los efectos desincriminantes que se deriven de él. Si bien el tribunal constitucional apunta que ese control corresponde al tribunal de juicio, lo cierto es que aparte de que el numeral 24 del Código Procesal Penal dispone lo contrario, en ese caso particular el tema que abordó la Sala Constitucional era el carácter provisional de los efectos del convenio de colaboración y no lo relacionado con el órgano competente para decidir sobre la prescindencia de la acción penal. Se trata además de un pronunciamiento aislado, previo a dos diversos y análogos (los Nº 12090-2009 y 1119-2005), que no confieren similares alcances al control que debe efectuar el tribunal de juicio, aparte de que los dos últimos votos, junto con el 2662-2001, son vinculantes. viii) El trámite relacionado con la aplicación del criterio de oportunidad es independiente del proceso en el cual el colaborador debe rendir su declaración. Además, no involucra un acto definitivo e irreproductible, ni implica la práctica de prueba anticipada (como sucede, p. ej., con los allanamientos, o la intervención de las comunicaciones), ya que la declaración del colaborador debe evacuarse durante el debate. Por eso puede ser valorada por el tribunal de juicio. Del mismo modo, en los casos mencionados, la legalidad de los elementos de convicción no se hace depender de la emisión de un juicio previo sobre las conductas imputadas, o la culpabilidad de las personas implicadas -como sí sucede con el criterio-, de ahí que el trato que le otorgó el legislador sea distinto. ix) Al tribunal no le toca examinar, para confirmar o descartar, la resolución de la jueza penal que autorizó la aplicación del criterio (a saber, la resolución de las 9:51 horas del 1 de junio de 2007, visible a folios 41 a 89 del legajo separado donde se tramitó). x) La aplicación del criterio de oportunidad es reglada. En cuanto a los alcances del control jurisdiccional, si es solo en cuanto al cumplimiento de las formalidades previstas en la ley, o también abarca los requisitos de carácter valorativo o sustancial -p. ej., verificar el concepto de menor reprochabilidad-, el tribunal de mérito entiende que el citado control se circunscribe a la verificación de los requisitos formales o legales, con exclusión de los valorativos, sin que la decisión jurisdiccional pueda sustituir a la de la fiscalía, ni invadir su potestad sobre la conveniencia u oportunidad de la medida, como tampoco examinar aspectos propios de la función acusadora. Como sustento de su postura, cita varias resoluciones de la Sala Constitucional, v.g., las números 2662-2001, 12090-2009, 6808-2002 y 1119-2005, Nombre02 como sendos fallos de la Sala Tercera, específicamente, el Nº 795-2009 -en el que se afirmó que el control abarca los supuestos sustanciales- y el Nº 450-2004, en el que se asumió el criterio expuesto por la Sala Constitucional, que comparte el tribunal de juicio. Añade el a quo que, en consonancia con el modelo democrático adoptado, no se pueden concentrar las funciones esenciales en un solo órgano, sino que deben ser distribuidas y controlado su ejercicio. Desde esa óptica, no podría admitirse que el criterio del juez penal prevalezca sobre el del Ministerio Público en cuanto a la investigación y el ejercicio de la acción penal. Ya en lo que respecta al control que debe efectuar el tribunal de juicio, se insiste en que debe ser el correspondiente a las pruebas que son recibidas en el debate. La deposición del colaborador, rendida de viva voz en el contradictorio, en presencia de las partes, es la que tiene la condición de prueba. El control del tribunal de juicio sobre el trámite seguido para autorizar el criterio de oportunidad lo es solo en la medida en que es el antecedente para la comparecencia descrita, pues por no ser un medio de prueba, el tribunal se debe circunscribir a verificar los aspectos formales puntualizados por la Sala Constitucional, es decir, la existencia de la solicitud fiscal, la autorización jerárquica y la aprobación por parte del juez. xi) Si bien la Sala Tercera ha procedido a valorar las conductas del presunto beneficiado y de los imputados contra los que este declara, en ninguno de los supuestos ha atribuido tal labor al tribunal de sentencia, cosa que de todas formas no podría hacer sin comprometer las garantías esenciales. Cita al respecto, las resoluciones Nº 1061-2008 y 795-2009. En la primera, el tribunal de juicio consideró que hubo irregularidades en el anticipo jurisdiccional de un deponente, razón por la cual le restó toda eficacia probatoria. Ante esto, la Sala estimó que aunque en el caso particular no se había concedido el criterio, tampoco se daban los presupuestos para ello, pues la participación del colaborador era fundamental. Frente a esto, el voto de mayoría sostiene que el órgano de casación en ningún momento adujo que fuese labor del tribunal de juicio valorar la procedencia del citado criterio, ni contrastar las conductas del deponente y los acusados. La Sala realizó ese análisis a partir de la propia declaración auto incriminatoria, ejercicio que antes de la sentencia no puede realizar el tribunal de juicio y que es diferente al supuesto en que según el mismo órgano de casación debía hacerse ese examen, a saber, cuando se pretende recibir una narración auto incriminatoria sin observar las garantías respectivas. En el segundo voto, la Sala Tercera afirmó que el tribunal de juicio debió limitarse a señalar la inexistencia de la aprobación jurisdiccional del criterio de oportunidad, sin que fuese su tarea imponerse del criterio de colaboración, calificarlo y mucho menos invocar con ese fin, el contenido de las pruebas evacuadas antes de escuchar el relato del deponente. Este asunto es fundamental, porque se planteó un habeas corpus a favor del colaborador, resuelto por la Sala Constitucional en el voto Nº 6808-2002 y en el cual se tuvo por probado que para declarar ilegal el convenio descrito, el tribunal argumentó que la responsabilidad posiblemente atribuible a la amparada sería similar a la de otros imputados y que la información que podría aportar no sería determinante para el resultado del proceso. El a quo considera medular la posición minoritaria expresada en esa sentencia Nº 6808-2002, ya que se explica que al tribunal de juicio le estaba vedado anticiparse al resultado que tendría la acusación; establecer la autoría que le corresponde al llamado “testigo de la corona” cuando todavía no se ha pronunciado sobre la acusación en la que se citan a otros autores y coautores del hecho y de la que se excluye al colaborador; realizar especulaciones sobre el resultado de la acción que el Ministerio Público no ha ejercido y fundamentar el rechazo del criterio en una valoración de la prueba y de los hechos no contenidos en la acusación. Según el señor Fernando Cruz Castro, magistrado que suscribe esa posición minoritaria, es hasta después de recibida la prueba en el debate que el tribunal sentenciador puede determinar si la acción del colaborador es menos reprochable que la que facilitó resolver y si su colaboración ha sido decisiva. Con base en esto, las juezas concluyen que si bien la Sala Tercera ha valorado y comparado la conducta del colaborador y de los implicados para determinar si el criterio de oportunidad ha sido o no bien concedido (lo que en cualquier caso es cuestionable, pues en tales causas no se estaría juzgando al beneficiado, contra quien ni siquiera se ha ejercido la acción penal por parte de quien tiene la potestad de hacerlo), se trata de una labor que en casación sí es viable hacer, lo primero porque se efectúa ex post (apoyándose incluso en las apreciaciones del tribunal de juicio) y luego porque no compromete la imparcialidad del órgano jurisdiccional, como sí sucedería si lo hace el tribunal de mérito. Mencionan a modo de ejemplo, las resoluciones Nº 737-2001 y Nº 136-2003 de la Sala Tercera y en las cuales nunca se indicó que el tribunal de juicio deba hacer ese análisis antes de dictar sentencia, o que le corresponda controlar los efectos desincriminantes del instituto. Además, en casos donde no se ha ejercido ese control jurisdiccional previo (Nº 175-2003 y 114-2006, ambos de la Sala Tercera), la única consecuencia derivada de esto ha sido la inevacuabilidad de la declaración, pero no la exigencia de verificación de dicho examen por parte del tribunal sentenciador. Finalmente, en el pronunciamiento 795-2009 de la Sala Tercera, ante la falta de cumplimiento del trámite legal previsto y la inexistencia de aprobación jurisdiccional, se dijo que es tarea del Ministerio Público suplir esas falencias y por ende, procurar la suspensión del debate en tanto se resuelve el tema, de lo que se extrae que no es el tribunal de juicio quien debe realizar el control jurisdiccional y que esos yerros, según sugiere la Sala, incluso se pueden subsanar en el contradictorio. xii) Tras reiterar que el control jurisdiccional sobre la aplicación de este instituto es limitado al cumplimiento de los requisitos legales, el voto de mayoría señala que hay una tercera limitación para el tribunal de juicio en el referido control, a saber, el deber de garantizar su imparcialidad. Entienden que este no se puede pronunciar sobre el tema de la menor reprochabilidad de [Nombre01 064] sin razonar a la vez sobre el derecho de fondo discutido, o sin comparar las conductas de los endilgados con la de aquel, lo que Nombre05 anticipar el juicio sobre los hechos. Remiten de nuevo al voto de minoría de la resolución Nº 6808-2002 de la Sala Constitucional, en la cual el magistrado Cruz Castro puntualizó que la imparcialidad del tribunal se vería debilitada si interviene sobre las potestades acusatorias, pronunciándose sobre la eventual responsabilidad penal de una persona que, aunque beneficiada por un criterio de oportunidad, no ha sido acusada. Por tanto, subrayan que el control que corresponde hacer al tribunal de juicio, distinto de aquel que correspondió hacer a la jueza penal que autorizó la aplicación del instituto, es únicamente para establecer la legalidad de la comparecencia del “declarante colaborador”, verificando el cumplimiento de los requisitos legales determinados al momento de otorgarse tal autorización y que se describen en el numeral 22 del Código de rito, a saber, que haya solicitud expresa de la fiscalía, que exista autorización jerárquica para efectuar la gestión y que exista aprobación jurisdiccional, todos los que se cumplen a cabalidad en este caso. Tema aparte es la valoración de la declaración. xiii) En cuanto a la falta de fundamentación de la resolución que autorizó el criterio de oportunidad, el tribunal de juicio reitera que no le compete decidir si la solicitud del criterio de oportunidad debió ser admitida o rechazada, como tampoco si deben generarse a partir de ella los efectos desincriminantes. Insiste en que no tiene legitimación para ejercer control sobre la resolución del juez penal de referencia, dictada con observancia de la garantía del juez natural, en un proceso diverso a este y respecto de quien no es acusado en esta causa. Fue a la jueza penal a quien le correspondió controlar la legalidad de los efectos desincriminantes del criterio de oportunidad, por lo que tanto por respeto a su independencia -al carecer el tribunal de mérito de competencia para valorar su actuación y juzgar si se ajustó o no a los presupuestos legales-, como en aplicación de los principios de imparcialidad y legalidad, que impiden arrogarse una tarea no prevista, no es viable conocer de las objeciones formuladas por la defensa y por ende, solo procede analizar la legalidad del criterio como antecedente de la deposición de [Nombre01 064], determinándose que este se tramitó en legajo separado, mediante una gestión fiscal que contó con el aval del superior jerárquico, la cual se presentó ante la jueza de la etapa intermedia quien ejerció el respectivo control jurisdiccional y lo aprobó. Analizados estos razonamientos, los suscritos consideran que no son de recibo. Las juezas que suscriben el voto de mayoría hacen un esfuerzo por deslindar la declaración que rindió [Nombre01 064] en el debate, del trámite seguido para aplicar un criterio de oportunidad a favor del mismo, sin embargo, es notorio que si este imputado colaboró fue con el propósito de cumplir el pacto que había hecho con el Ministerio Público. La expectativa de obtener impunidad en relación con una serie de hechos delictivos que, al menos en principio, podían serle atribuidos, es lo que incentivó a [Nombre01 064] a colaborar, renunciando a su derecho de no declarar contra sí mismo (artículo 36 de la Constitución Política) y al mismo estado de inocencia que lo protege (art. 39 de la Constitución). Por tanto, hablamos de actos procesales asociados intrínsecamente, donde la realización y, claro está, la legitimidad de uno (el testimonio, término usado en sentido atécnico pues no se ofrece bajo juramento) está condicionada por la legalidad del otro (el convenio). No se desconoce que la declaración de [Nombre01 064], como prueba, se produjo en el debate, sin embargo, esto en modo alguno modifica la conclusión antes expuesta, ya que si aquella tuvo lugar fue precisamente porque Nombre02 se contempló en la negociación, de la cual se origina y deriva. Aclarado lo anterior, corresponde hacer algunas reflexiones generales sobre los principios que sustentan nuestro proceso penal y que son indispensables para establecer los alcances del control jurisdiccional sobre la aplicación de los criterios de oportunidad por parte del órgano requirente. Iniciamos con una obviedad, a saber, que tanto el convenio efectuado por el Ministerio Público, como la resolución que lo autorizó, son actos que están sometidos al imperio de la ley. Según el artículo 11 de la Constitución Política, todo órgano público al ser un simple depositario de la autoridad, está obligado a cumplir los deberes que el ordenamiento jurídico le impone, siendo que además solo puede actuar en la medida en que este se lo permite. El artículo 39 de la misma Constitución, señala que a nadie se le hará sufrir pena sino por delito, cuasidelito o falta, sancionados por ley anterior y en virtud de sentencia firme dictada por autoridad competente, previa oportunidad concedida al indiciado para ejercitar su defensa y mediante la necesaria demostración de culpabilidad. De ambas normas se deduce no solo el principio de legalidad en materia de delitos y penas, sino también en cuanto al procedimiento, tal y como lo recoge el Código Procesal Penal (en adelante C.Nombre09.) en su artículo 1, al señalar: “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…”. Como se aprecia, hablamos de una disposición que impone el deber de respetar las formas procesales, no porque estas sean valiosas en sí mismas, sino porque están destinadas a garantizar los derechos de las partes, en particular los del imputado contra el cual se ejerce la acción penal y más específicamente, contra el cual declara el llamado “testigo de la corona”. Dice el voto de mayoría que los requisitos contemplados en el artículo 22 inciso b) del C.P.P. son tanto sustanciales como formales y que el juez penal no puede controlar el cumplimiento de los primeros. Se trata de una posición que este tribunal de apelación no comparte, porque Nombre05 un quebranto indiscutible del principio de legalidad antes mencionado. En términos generales, se pueden identificar dos modelos generales para la aplicación de los criterios de oportunidad. En uno la oportunidad es la regla, un principio rector de la persecución penal. Como señala Nombre13, en este modelo que se aplica p. ej., en Estados Unidos de América, se desconoce el principio de legalidad a tal punto que las bases del sistema de administración de justicia penal se verían amenazadas si se adoptara este principio aunque fuese parcialmente: “…la fuerza de esa conclusión es tan vigorosa, que el poder de selección reside en el ministerio público (también en la policía que interactúa con él en la persecución penal) y es inherente a él, como son discrecionales los actos de gobierno del Poder Ejecutivo, con fundamento en el principio constitucional de separación de los poderes; la razón práctica también es incontestable: con esa arma el ministerio público gobierna el proceso penal y su forma concreta (a través de herramientas que, de conformidad con el perseguido, le permiten variar la naturaleza del procedimiento, para abreviarlo: plea bargaining, guilty plea), y armonizar sus posibilidades de perseguir penalmente con eficiencia (número de procesos y complejidad), con los recursos personales y materiales de la administración de justicia en general, en el marco de una estrategia concreta y directa para la mejor y más eficaz aplicación de la ley.” (Nombre13. Derecho Procesal Penal. Buenos Aires, Editores del Puerto s.r.l., 3º reimpresión de la 2º edición, 2004, p. 836). En igual sentido, Nombre14 apunta que, en este esquema, las facultades discrecionales del órgano requirente son de tal envergadura que en la práctica “…es el fiscal quien domina por completo el procedimiento. Estas facultades no se limitan a la posibilidad de desistir libremente de la acusación (prosecution), sino que también cubren un amplio espectro de actos "intermedios", por Nombre02 decirlo, como es la potestad del fiscal de plantear una reducción en los cargos sobre los cuales se ha basado la acusación o que constan en el sumario policial; inclusive, el ministerio público puede conferir inmunidad, en compensación por haber colaborado con el gobierno en la investigación…”. (Nombre14. “Facultades discrecionales del ministerio público e investigación preparatorias: el principio de oportunidad.” En: Nombre13 (Comp.). El Ministerio Público en el proceso penal. Buenos Aires, Ad Hoc S.R.L., 1993, pp. 89-90). En los ordenamientos jurídicos donde impera el principio de discrecionalidad en el ejercicio de la acción penal y no el de su obligatoriedad, no hay problema alguno para aceptar que un imputado preste colaboración a cambio de obtener ciertos beneficios o premios, por ejemplo, el no ser investigado o perseguido por ciertos hechos. Frente a este modelo, donde la discrecionalidad del órgano requirente es absoluta, encontramos otro característico de Estados que han adoptado el sistema continental europeo y en el cual, en atención al principio de legalidad, el ejercicio de la acción penal es un deber. En este contexto, prescindir de la persecución de un hecho criminal cometido por un imputado que colabora con la investigación, o suspender el ejercicio de la acción ya iniciada, no es una decisión exenta de polémica. Tanto, que mientras algunos consideran que al colaborador se le debe perseguir penalmente y solo se le puede atenuar o eximirle de la pena, para otros (y en esta posición se insertó el Código Procesal Penal costarricense) es legítimo excluir el ejercicio de la acción penal. En cuanto a la primera posición, nos señala Nombre15: “El premio al “arrepentimiento procesal”, esto es la recompensa derivada de la contra-conducta colaboradora del culpable en la investigación del hecho criminal, en abstracto, puede tener una trascendencia meramente procesal, en aquellos ordenamientos jurídicos en los que, como ocurre en los Estados de la Common Law en los que rige el principio de oportunidad en la acción penal, traduciéndose en la posibilidad de no ejercer la acción penal o incluso, ya iniciada, suspenderla. No obstante, en los Estados donde rige el sistema continental de Derecho, en el que el ejercicio de la acción penal es obligatoria, el premio a la colaboración procesal del culpable ha de sustantivizarse en la Ley penal material, mediante atenuaciones específicas de pena o incluso en exenciones de la misma, si bien tras un proceso criminal en el que se determine la culpabilidad del arrepentido.” (Nombre15, Ignacio Francisco. El "colaborador con la justicia": aspectos sustantivos, procesales y penitenciarios derivados de la conducta del "arrepentido". España, Dykinson, 2004, p. 29. ProQuest ebrary. Web. 10 November 2015 , p. 43). Sobre la segunda postura y, específicamente, sobre el caso costarricense, nos indica Nombre16: “De acuerdo con lo que establece la ordenanza procesal alemana (arts. l53 y ss), el Código de Procesal Penal modelo para Iberoamérica (arts. 230 y ss), el proyecto de Código Procesal argentino de l987 (art. l5) y el proyecto de Código Procesal Penal guatemalteco (art. l0), se admite en ciertos casos, claramente predeterminados, que el ente acusador, con la autorización y supervisión del órgano jurisdiccional, pueda prescindir total o parcialmente de la persecución penal. Seguirá imperando el principio de legalidad en el ejercicio de la acción penal; sin embargo, la introducción del principio de oportunidad en algunos casos claramente definidos, bajo el control jurisdiccional, permite una significativa racionalización de la persecución penal, Nombre17 la intervención de la represión estatal en casos en que no se justifica realmente. Al igual que en el Código anterior, en el actual, el principio rector del ejercicio de la acción penal pública es el de obligatoriedad. No obstante, como novedad, el citado Código instaura el principio de oportunidad, en virtud del cual le es posible al Fiscal solicitar ante el Tribunal respectivo la suspensión o el archivo de la sumaria, si en la especie concurre alguno de los criterios legales preestablecidos. Así, el artículo 22 dispone que el representante del Ministerio Público, previa autorización del superior jerárquico, podrá 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 …”. (HOUED VEGA, Mario. El proceso penal en Costa Rica . San José, Corte Suprema de Justicia, 2000, s.n.p., disponible en: http://biblioteca.icap.ac.cr). En definitiva, si bien el legislador costarricense contempló el principio de obligatoriedad de la acción penal (así, art. 289 C.P.P.), también dispuso un listado taxativo de supuestos en los cuales es plausible disponer algo distinto, de ahí que se trate de una oportunidad reglada. Tratándose del inciso b) del artículo 22 del C.P.P., que contempla el caso del denominado testigo de la corona o arrepentido, la aplicación del criterio de oportunidad queda condicionada al cumplimiento de una serie de requisitos: i) que el fiscal que solicita prescindir total o parcialmente de la persecución penal actúe previa autorización del superior jerárquico; ii) que se trate de un asunto de delincuencia organizada, criminalidad violenta, delitos graves o de tramitación compleja; iii) que el imputado colabore eficazmente con la investigación, brindando información esencial para evitar que continúe el delito o que se perpetren otros, para ayudar a esclarecer el hecho investigado u otros conexos, o proporcione información útil para probar la participación de otros imputados; iv) que la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita. En este asunto, el tribunal de juicio, frente a una norma diáfana como el artículo 22 del C.P.P., hace un ejercicio de interpretación innecesario, para darle un contenido que no tiene. A pesar de que la disposición no distingue entre requisitos “formales” y “sustanciales”, el a quo concluye que el control jurisdiccional solo puede versar sobre el cumplimiento de los primeros y que por ende, no corresponde examinar si la conducta del colaborador es menos reprochable que el hecho punible cuya persecución facilita. Al sostener lo anterior, también reconoce, aunque sin decirlo expresamente, que el requisito no es tal, ya que el órgano requirente puede actuar con absoluta discrecionalidad, lo que es inaceptable en un proceso penal como el nuestro, regido por el principio de legalidad y en el cual se insiste, por expresa disposición del legislador, se supedita la aplicación de cualquier criterio de oportunidad a que el juez compruebe el cumplimiento de todas las formalidades contempladas en el numeral 22 C.P.P. En este punto de la exposición, es indispensable diferenciar entre el principio de oportunidad reflejado en el art. 22 citado supra y los requisitos legales para su aplicación, también descritos en esa norma. Una cosa es la concesión de un ámbito de libertad al órgano requirente para que en razón de su política persecutoria, elija los asuntos en relación con los cuales estima oportuno prescindir o limitar el ejercicio de la acción penal, y otra distinta son los requerimientos que exige el art. 22 para materializar esa pretensión y dentro de los cuales se contempla, en lo que aquí interesa, el menor reproche al imputado colaborador. Controlar el estricto cumplimiento de estos es resorte del juez, lo que en modo alguno Nombre05 una invasión de las funciones otorgadas al Ministerio Público, ya que la discrecionalidad otorgada a ese órgano público es en cuanto a la selección de los casos, los imputados y los delitos con respecto a los cuales solicita la aplicación del criterio de oportunidad, siendo que sobre esta petición, deberá ser el órgano jurisdiccional el que decida, previa comprobación como ya se dijo, de la observancia de los requisitos legales -de ahí que se hable de una oportunidad reglada-. En ese contexto, carece de todo fundamento la división que hace el tribunal de mérito de los requisitos contemplados en el artículo 22 inciso b) C.P.P., ya que tanto los que denomina sustanciales o valorativos (a saber, el menor reproche que debe corresponder a la conducta del colaborador) como los que llama formales (solicitud expresa de la fiscalía previa autorización del superior jerárquico y aprobación jurisdiccional), son requisitos legales y formales (esto en la medida en que se trata de formalidades descritas en la legislación), indispensables para que proceda la aplicación del instituto y cuya verificación ha sido confiada al juez. En síntesis, hablamos de dos cuestiones diversas. Por un lado, la oportunidad -ámbito de discrecionalidad del órgano requirente en la selección de los asuntos donde solicita la aplicación de los criterios- y por otro, los requisitos que prevé el ordenamiento jurídico para que esa aplicación tenga lugar. Nombre02 como el Ministerio Público es libre para determinar cuándo es oportuno prescindir o limitar la persecución penal a cambio de obtener la colaboración de un imputado, sin que nadie, órgano público o no, le puede obligar a pactar si no lo desea, es al juez a quien le compete corroborar que en los casos seleccionados por el órgano requirente, se hayan satisfecho todos y cada uno de los requerimientos contemplados por el legislador. Aclarado lo anterior, tenemos que en este asunto, los reclamos contra el criterio de oportunidad aplicado a [Nombre01 064] no se centran en el primer aspecto -de hecho, nadie discute que la fiscalía era libre para elegir a [Nombre01 064] en detrimento de otros imputados-, sino en el segundo, entiéndase, en el cumplimiento de los requisitos para materializar esa pretensión, extremo que está sujeto a control jurisdiccional. En cuanto al órgano que debe ejercer ese control, si bien en principio debe ser el juez penal, pues la solicitud debe seguir el trámite establecido para la conclusión del procedimiento preparatorio (art. 22, último párrafo C.P.P.), nada impide que el tribunal de juicio, u otros órganos que conocen del asunto a raíz de una impugnación, asuman esa tarea. Y es que, además del examen que debe efectuar el juez penal, destinado a determinar la procedencia y aplicación del criterio, también tenemos el control que a posteriori debe ejercer el tribunal de juicio, destinado a determinar si resulta procedente recibir la declaración del arrepentido, Nombre02 como el que podrían llegar a ejercer el tribunal de apelación y la propia sala de casación, con el propósito de establecer si esa declaración puede desplegar efectos jurídicos y probatorios en relación con el sujeto contra el cual se declara. Por tanto, el control efectuado por el juez penal no es excluyente de aquel que puedan hacer otros órganos jurisdiccionales, sea de oficio o a solicitud de parte. En cuanto a esto último, nótese también que el Código Procesal Penal indica que los defectos absolutos, como los relativos que no han sido convalidados (art. 177 y 178 C.P.P) deben ser saneados, labor que debe efectuarse sin retrotraer el proceso a períodos ya precluidos (art. 179 del mismo cuerpo legal), lo anterior salvo los casos expresamente previstos, por ejemplo, un reenvío ordenado en casación. De esto se extrae como regla general, que tratándose de vicios absolutos o relativos no convalidados, el operador jurídico tiene un deber de enmendar los mismos -la norma tiene carácter preceptivo- y esto lo debe hacer, salvo las excepciones también contempladas por la legislación, sin retrotraer el proceso a etapas ya superadas, lo que necesariamente implica que el reclamo contra un acto defectuoso se puede replicar en múltiples fases procedimentales. En cuanto a este mecanismo, señala Nombre18: “En lo relativo al procedimiento en el NCPP podemos decir, grosso modo, que la actividad procesal defectuosa es susceptible de ser reclamada ante el Tribunal del Procedimiento Intermedio. Es en esta etapa, donde deben resolverse todos los aspectos relativos a los asuntos no saneados en la etapa preparatoria, Nombre11 que no se hayan convalidado por la inercia de las partes (arts. 15 y 317 inciso a. NCPP), y en caso de no encontrar respuesta positiva puede reclamar en debate dichos defectos por la vía incidental (art. 342 NCPP), y como última alternativa pueden ser invocados en casación o revisión cuando se trate de aspectos que impliquen vulneración de garantías constitucionales… En los casos que se refieren a defectos del procedimiento, se requiere como requisito de admisibilidad que la parte haya hecho protesta oportuna o haya reclamado el saneamiento, a excepción de los defectos absolutos…” (Nombre18. “La actividad procesal defectuosa.” En: Derecho procesal penal costarricense . San José, Asociación de Ciencias Penales de Costa Rica, Tomo II, 2007, pp. 230 y 231). La Sala Constitucional también se ha pronunciado de forma reiterada sobre la forma de control horizontal aludida antes, frente al control vertical que corresponde a la de los recursos. Por ejemplo, en la resolución Nº 1999-01550, de las 15:15 horas del 3 de marzo de 1999, al resolver una acción de inconstitucionalidad contra los artículos 437 y 315, en relación con el 311, todos del C.P.P., en la cual se reclamaba que tales normas omitían la posibilidad de recurrir un auto que deniegue el sobreseimiento, indicó: “Inexistencia de recurso sobre la resolución que desestima incidente de nulidad… No obstante, es posible afirmar que la inexistencia del recurso de apelación respecto de una resolución que deniega un incidente de nulidad no viola ningún elemento del debido proceso. No es obligación del legislador establecer la segunda instancia para todas las resoluciones y actuaciones del proceso. La sola existencia del recurso de apelación no garantiza de por sí el cumplimiento del debido proceso. De ahí que la obligación de posibilitar una segunda instancia al imputado, desde una óptica de protección de los derechos humanos, lo sea con relación a la sentencia condenatoria, según establece el artículo 8 párrafo segundo inciso h) de la Convención Americana sobre Derechos Humanos. Por su parte, el artículo 437 del Código Procesal Penal lo que hace es señalar cuáles son las resoluciones apelables. Si se produce algún gravamen irreparable dicha norma posibilita el recurso de apelación pese a que se trate de una resolución que no haya sido declarada apelable en forma expresa. Si la resolución no produce un gravamen irreparable se puede proceder conforme disponen los artículos 175 y siguientes del mismo Código, esto es, se puede convalidar el vicio o puede sanearse. Además como se indicó en el considerando anterior, la inexistencia de recurso en relación con una resolución que no pone término al asunto, no conlleva lesión alguna a las garantías fundamentales de las partes, pues el asunto podrá ser replanteado en etapas posteriores y aún en casación en el caso de un fallo condenatorio. De manera que la norma impugnada no ocasiona violación alguna al debido proceso y por esa razón la acción debe rechazarse por el fondo también en cuanto a ese particular.” En síntesis, el control horizontal se deriva de la misma estructura de nuestro proceso penal. Salvo las limitaciones propias que se extraen de lo expuesto en los artículos 175 y siguientes del Código Procesal Penal (p. ej., que se trate de un vicio que ya está convalidado por cualquiera de las razones señaladas en el art. 177 C.P.P.), las partes pueden replantear los cuestionamientos en etapas posteriores y el tribunal que corresponda, según la fase procesal, estará obligado a resolver. Aunado a lo ya expuesto, tenemos que la Sala Tercera de la Corte Suprema de Justicia ha asumido pacíficamente que los órganos jurisdiccionales -el juez penal, el tribunal de juicio, los tribunales de apelación de sentencia penal, o inclusive ella misma- son competentes para examinar si una conducta es o no menos reprochable que otras, a efectos de determinar si un criterio de oportunidad ha sido otorgado correctamente. Por ejemplo, en la resolución Nº 2001-00737, de las 9:10 horas del 27 de julio de 2001, se indicó: “El tema medular sobre el que habrá de hacerse un juicio con miras a determinar si puede recurrirse al criterio que se comenta, es la reprochabilidad de la conducta concreta del “colaborador” en el hecho que se investiga o en el relacionado con él y su menor entidad al compararla con la de las restantes personas en cuya persecución se coopera. Yerra la defensa, entonces, al afirmar de manera genérica que el criterio de oportunidad es inaplicable a los coautores o partícipes del mismo delito que se investiga, pues la ley es clara al disponer lo contrario. En el presente caso, el Ministerio Público sostuvo la tesis –admitida por el a quo en el fallo de mérito- de que el testigo Nombre19. intervino en el hecho golpeando a un tercero al que dejó inconsciente (Nombre20.), pero al que no dio muerte; mientras que las demás personas atacaron a otros dos ofendidos hasta provocar su deceso. En esta tesitura, aunque se admitiese la interpretación del defensor (en el sentido de que Nombre21. intervino de modo activo, con dominio del hecho en los dos homicidios que materialmente ejecutaron otros sujetos), lo cierto es que nada impedía aplicar el criterio de oportunidad a su favor, pues la reprochabilidad de su conducta (que, a fin de cuentas, solo produjo una leve incapacidad en Nombre22.) es mucho menor que la de las acciones que se atribuyen a los demás intervinientes en los eventos, quienes sí habrían procurado en forma directa la muerte de Nombre21.Nombre23. y Nombre24.” . Algo similar sucede en la sentencia Nº 00795-2009, de las 14:35 horas del 16 de junio de 2009. En esta, la Sala Tercera concluyó, tanto que los hechos cometidos por el colaborador pueden ser distintos al hecho cuya persecución facilita, como que la menor reprochabilidad que corresponda a aquel es uno de los presupuestos esenciales que debe verificar el juez al aprobar la solicitud de aplicación del criterio de oportunidad: “El criterio de oportunidad basado en la cooperación que uno de los partícipes del delito suministre para perseguir a los demás (o a los de otra ilicitud más grave), constituye una forma de extinguir la acción penal respecto del colaborador, procede en casos de delincuencia organizada, criminalidad violenta (como el homicidio aquí investigado), delitos graves o de tramitación compleja y demanda otras dos condiciones esenciales: que la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita y que los informes que proporcione satisfagan las expectativas pretendidas. Desde luego, el cooperador puede ser un partícipe del mismo delito a perseguir (procesalmente: un coimputado) o autor de otro hecho punible menos grave. El procedimiento para aplicar el criterio de oportunidad en esta hipótesis comprende la autorización del superior jerárquico del fiscal (v. gr.: el fiscal adjunto, respecto del fiscal auxiliar), quien deberá solicitar al juez de la etapa intermedia la aprobación del criterio de oportunidad. Si el juez lo admite, tras constatar la concurrencia de los presupuestos esenciales (el tipo de criminalidad, la menor reprochabilidad de la conducta del colaborador y la autorización del fiscal competente del Ministerio Público), decretará la suspensión del ejercicio de la acción penal pública, la cual se mantendrá en ese estado hasta quince días después de la firmeza de la sentencia dictada contra los demás imputados (es decir: aquellos a los que se pretende sancionar con la ayuda del colaborador), momento en el cual deberá resolverse en definitiva si se extingue la acción penal… En este asunto, el defensor cuestiona el acuerdo del tribunal, que condenó a tres de los partícipes del homicidio, de negarse a evacuar el testimonio de la imputada “colaboradora” y, más bien, ordenar su detención y calificar de ilegal el convenio de cooperación suscrito. Acerca de este punto, debe recordarse que lo sucedido se debió a las actuaciones y omisiones del Ministerio Público, el cual se limitó a suscribir el convenio pero incumplió los demás trámites que procedían (gestionar la autorización del superior jerárquico y la aprobación del juez para que declarara suspendida la persecución penal). Desde esta perspectiva, no puede formularse reparo al acto del referido tribunal de juicio de rechazar el testimonio propuesto, pues lo cierto es que tal solicitud no pretendía otra cosa sino que se recibiera como testigo (aun fuese sin juramento) a una persona que, según constaba en el expediente, era más bien una imputada a quien se le practicó indagatoria, pero cuya situación jurídica no había sido definida a través de algún pronunciamiento jurisdiccional. Como se dijo, nunca llegó a decretarse la suspensión del ejercicio de la acción penal contra Nombre25. y, de hecho, el convenio no se había sometido al examen de un juez, de suerte que el tribunal de juicio era el primer órgano jurisdiccional que tenía contacto con el tema. A pesar de lo anterior, tampoco pueden avalarse todas las actuaciones del tribunal, en cuanto significaron declarar la ilegalidad del convenio, pues habría bastado con rechazar el testimonio señalando el incumplimiento del trámite legal previsto y, sobre todo, la inexistencia de aprobación jurisdiccional, de suerte que le competía al Ministerio Público corregir las falencias en que incurrió y procurar la suspensión del juicio oral mientras gestionaba la aprobación jerárquica y judicial del convenio, a fin de que el testimonio de la “colaboradora” fuese finalmente evacuado en el debate contra los demás partícipes del delito, o bien, en caso de que le fuesen negadas esas aprobaciones, proseguir con la persecución penal de la justiciable. No es tarea del tribunal de juicio declarar la ineficacia del convenio de colaboración suscrito por una persona que se le presenta como testigo sin juramento (o, para ser más precisos, un imputado o coimputado cuya persecución se encuentra suspendida) invocando con ese fin el contenido de las pruebas evacuadas antes de escuchar el relato que haría el deponente. Lo que sí puede hacer es negarse a evacuar el testimonio si, cual ocurrió aquí, no se cumplieron los trámites legales establecidos para aplicar el criterio de oportunidad. Por otra parte, es preciso destacar que todos los problemas suscitados en esta causa y en relación con la imputada, son de exclusiva responsabilidad del Ministerio Público…”. Finalmente, en la sentencia Nº 01712-2013, de las 14:21 horas del 22 de noviembre de 2013, el órgano de casación afirmó que dicho control también debía ser efectuado por el tribunal de apelación de sentencia penal: “I. Mediante resolución número 2013-1330, de las once horas nueve minutos del veinte de setiembre de dos mil trece, esta Sala admitió para estudio de fondo, el recurso de casación formulado por el lic. Nombre26, … En el único motivo a favor de los encartados Nombre04.Nombre27., Nombre28. y Nombre29., aduce la inobservancia de preceptos legales procesales, específicamente, de lo dispuesto en los artículos 142 y 459 del Código Procesal Penal. En criterio del defensor, el Tribunal de Apelación no se pronunció sobre todos los aspectos que le fueron expresamente cuestionados. En ese sentido, hace ver que se reclamó la incorrecta valoración del artículo 22 del Código Procesal Penal, al considerarse que la participación de la persona a la que se le concedió un criterio de oportunidad, no era menos reprochable que la conducta atribuida a los otros imputados; no obstante, considera que el análisis que hizo el Tribunal de Apelación, se limitó a un repaso de las razones por las que se le otorgó credibilidad a dicho testigo, y a concordar con la tesis expuesta en el fallo, sin analizar la cuestión de fondo…II. El reclamo es atendible. Luego de realizar un estudio cuidadoso de la sentencia número 92-2013, dictada por el Tribunal Penal del Tercer Circuito Judicial de San José, a las once horas del veinticinco de febrero de dos mil trece; Nombre02 como de la resolución número 2013-1448, de las once horas tres minutos del cinco de julio de dos mil trece, del Tribunal de Apelación de la Sentencia Penal del Segundo Circuito Judicial de San José, esta Sala considera que lleva razón la defensa particular en el reclamo interpuesto. Para efectos de iniciar el análisis sobre el fondo de este asunto, es necesario partir del cuadro fáctico que el Tribunal de Juicio tuvo por probado: “1. El día 10 de abril del 2010, al ser aproximadamente las 18:00 horas, el ofendido Nombre30., alias “Nombre31”, se encontraba en San José, Alajuelita, Concepción Arriba, Dirección01, en las afueras del Bar Betos, consumiendo licor. 2. En el mismo lugar, en la fecha y hora referidas, se encontraba la imputada y administradora de dicho bar Nombre32., en compañía del co-imputado Nombre33., c.c. “Nombre33.”, quienes discutieron con el ofendido por un problema anterior, al punto de amenazarlo de muerte. 3. Acto seguido los imputados Nombre34. y Nombre09., actuando de común acuerdo y con el fin de dar muerte al agraviado Nombre35., contactaron vía telefónica al también imputado Nombre36., alias “Nombre37”, a quien le ofrecieron la suma de dos millones de colones para que materializara dicho homicidio. 4. En virtud de lo anterior, el co-imputado Nombre36., actuando de común acuerdo y según el plan previamente establecido con los imputados Nombre32.Nombre38. y Nombre33., contactó a los también imputados Nombre39., alias “Nombre40” (a quien se le sigue causa aparte por estos hechos en el expediente 11-000052-1042-TP con quien se negoció un criterio de oportunidad) y Nombre29., para que ejecutaran el homicidio de Nombre41. 5. Como parte del plan previamente establecido, los imputados Nombre36., Nombre05. y Nombre29., abordaron en las cercanías de la antigua Delegación de la Fuerza Pública de Concepción de Alajuelita, el vehículo color blanco, marca Hyundai, estilo Accent, placas…, el cual, era conducido por el co-imputado Nombre42., alias “Nombre43”, quien sin conocer del pago previamente acordado, pero a sabiendas de que se iba a cometer un homicidio, se hacía acompañar del también imputado Nombre44., alias “Nombre45” (a quien se le sigue causa aparte por estos hechos en el expediente 12-000012-1042-TP), hermano de Nombre33., quienes se desplazaron hacia el lugar en donde se encontraba el ofendido, con la finalidad de darle muerte. 6. Al ser aproximadamente las 23:30 horas de ese mismo día, el ofendido Nombre46.Nombre47., se encontraba en las afueras del Bar Betos, momento en el cual, los imputados Nombre32. y Nombre33., Nombre11 actuando de común acuerdo, según el plan previamente establecido y con clara distribución de funciones, se comunicaron vía telefónica con el co-imputado Nombre36. y le informaron acerca de la ubicación exacta del ofendido, con el fin de asegurarse la muerte del mismo. 7. Acto seguido, una vez que estos imputados llegaron a las cercanías del Bar Betos, los encartados Nombre39. y Nombre29., descendieron de dicho vehículo, momento en el cual, el co-imputado Nombre42., según el plan previamente establecido para asegurarse la posterior huida del lugar, se aparcó aproximadamente a 50 metros norte del punto donde se encontraba el ofendido, lugar donde los esperó mientras materializaban el homicidio, en compañía de los co-imputados M.A.S. e Nombre36., quienes de previo, les habían dado las indicaciones operativas respectivas, para ejecutar dicho crimen. 8. Acto seguido, los imputados Nombre39. y Nombre29., actuando de común acuerdo con los también imputados Nombre28., Nombre33., Nombre44.Nombre48., Nombre36. y Nombre42., se acercaron al ofendido y sin que existiera ninguna causa de justificación y con total menosprecio hacia la vida del mismo, le dispararon en múltiples ocasiones con armas de fuego, resultando también herido el coimputado Nombre29…10. A consecuencia del actuar ilícito de todos los imputados, el ofendido sufrió siete heridas producidas por proyectil de arma de fuego, ubicadas en el tórax, abdomen, glúteo derecho, extremidad superior derecha e inferior izquierda, las cuales le causaron la muerte ese mismo día, en el Hospital San Juan de Dios, siendo la causa de muerte: Herida por proyectil de arma de fuego en el tórax con laceración cardiaca con hemotórax izquierdo y hemopericardio y la manera de muerte: Homicida desde el punto de vista médico legal.” De esta forma, para el Tribunal de sentencia quedó debidamente acreditado que los encartados Nombre39. y Nombre29. fueron los autores materiales del homicidio, porque en la distribución de funciones previamente acordada entre todos los coimputados, fueron ellos dos quienes pactaron ejecutar la delincuencia acusada, disparando en diversas ocasiones con las armas de fuego que portaban, con el fin de acabar con la vida del ofendido. Ahora bien, el Ministerio Público decidió negociar un criterio de oportunidad con el coimputado Nombre39., quien colaboró con su declaración, en calidad de testigo de la corona. Este trato fue objetado por la defensa de los otros encartados, señalando que se incumplían los presupuestos legales para la procedencia del criterio de oportunidad, ya que el imputado tenía la calidad de coautor en los hechos acusados, era el ejecutor material del homicidio y su conducta era tan reprochable como la de los demás coautores. La protesta por actividad procesal defectuosa fue resuelta en el primer considerando de sentencia dictada por el Tribunal de Juicio (visible a partir del folio 1223 del tomo II del legajo de investigación). En síntesis, dicha protesta se declaró sin lugar, por las siguientes razones: 1) El artículo 22, inciso a) del Código Procesal Penal le otorga al Ministerio Público, la discrecionalidad para prescindir total o parcialmente de la persecución penal, cuando el endilgado rinda declaración en contra de otros partícipes del hecho, con la finalidad de obtener un beneficio, en relación con el reproche de su responsabilidad en el delito acusado. 2) La negociación escapa del control de los otros imputados, no es un derecho que les pertenezca y es un negocio privado entre el Ministerio Público, el defensor y el colaborador, por ende, el acuerdo no tiene la obligación de publicidad. 3) Con respecto al grado de reproche de la conducta atribuida al testigo de la corona señaló: “El marco fáctico que se ha demostrado y que encuentra sustento en la pieza acusatoria, establece que debido a problemas delictivos que existían entre un hermano del ofendido y un hermano del imputado, habían surgido roces que culminaron con la decisión del imputado Nombre33., de pagar una suma de dos millones de colones con el único fin de acabar con la vida de Nombre21., lo que encontraba justificación en los desplantes que éste hacía en el negocio de Nombre49., en relación con los supuestos derechos de su hermano, por las deudas de Nombre49. y un hermano de éste, con él. Nombre02 el 10 de abril del año 2011, y después de uno de estos problemas, Nombre49. y la co-imputada Nombre28., aprovechando la ventaja económica del primero, idearon la muerte del ofendido, decidiendo pagar a terceros una suma de dos millones de colones por aquel ajusticiamiento. De esta manera, es factible concluir que quienes tenían el dominio, la decisión de aquel hecho, eran Nombre49. y Nombre28., quienes asumieron la función primordial en el hecho, pues eran ellos quienes decidieron contratar al co-imputado Nombre50.Nombre46., para que este a su vez contratara a Nombre29. y al imputado y testigo de la corona, Nombre51., para materializar la muerte de la víctima, además en el hecho participó, el encausado Nombre42., quien se encargo de facilitar y conducir el vehículo, que se utilizó para trasladar a quienes se encargarían de la comisión del hecho delictivo. Se denota entonces, que el homicidio planeado, incluso se estructuró jerárquicamente en función de aquellos que en aquella pequeña estructura organizativa, fueron quienes decidieron y pagaron, por la comisión del homicidio. En un segundo plano, como hemos dicho, encontramos a Nombre46. quien fue el contratista-intermediario, y más abajo, aún es posible encontrar a quienes materializaron el hecho, los que en criterio del Tribunal pueden ser vistos como piezas cambiables de aquel plan. El Tribunal considera entonces que la participación indilgada a Nombre51., sí es posible enmarcarla dentro de un menor reproche, ello desde la perspectiva de la estructura organizativa, en donde él seguía órdenes de otros, lo que refleja su menor relevancia en los hechos. Es importante indicar que en relación con la decisión, de a cuál de los imputados, debe otorgarse el criterio de oportunidad, debe concluirse que esta es una facultad que ostenta por ley el Ministerio Público y que dependerá del menor reproche y de que la información suministrada resulte suficiente, según el criterio fiscal, sin que se pueda observar el Tribunal vicio alguno, en que el Ministerio Público, escoja un imputado en detrimento de otros, para beneficiarlo, con la no persecución de su responsabilidad penal en los hechos”. Por su parte, el Tribunal de Apelación de la Sentencia Penal del Segundo Circuito Judicial de San José, en resolución número 2013-1448, de las once horas tres minutos del cinco de julio de dos mil trece, al conocer ese mismo alegato como uno de los motivos del recurso de apelación de la sentencia condenatoria, indicó: “i.- En primer término la defensa ha reclamado por el acuerdo del Ministerio Público de otorgar un criterio de oportunidad a uno de los implicados en el caso, argumentando que se sobrepasó el contenido del artículo 22 inciso b) del Código Procesal Penal, en tanto se le aplicó a quien cometió la acción más grave de disparar contra la víctima. Este tema fue ampliamente abordado en el fallo (fs. 1223-1226), haciendo ver, que el Código Procesal Penal le ha otorgado un amplio margen de discrecionalidad al Ministerio Público para transar dentro del proceso penal, evaluando la pertinencia en cada caso, de acuerdo con la orientación de la política criminal. Además indicó que los acuerdos no son públicos ni participan terceros no interesados en la transacción, al punto que se maneja en legajo separado e independiente. Además hace ver el fallo, que de acuerdo a lo demostrado, el poder de decisión para ordenar la muerte de la víctima estaba en manos de Nombre33. y Nombre28., de manera que a ellos es a quienes les corresponde mayor reprochabilidad por el hecho, y en menor jerarquía a Nombre51., no obstante que éste fuera un ejecutor de las órdenes dadas. Este Tribunal ha examinado el punto y concuerda con la tesis expuesta en el fallo, en que los que dan las órdenes y pagan la recompensa por la muerte del ofendido y hacen obedecer a otros, tienen mayor reprochabilidad que los mismos ejecutores, de manera que estamos ante uno de los presupuestos que autoriza la negociación de criterios de oportunidad en criminalidad organizada.” (ver folio 1501 fte. y vto.). Sobre los anteriores razonamientos compartidos tanto por el Tribunal de Sentencia como por el de Apelaciones, conviene hacer las siguientes reflexiones: El principio de oportunidad, contemplado en la ley adjetiva como excepción del principio de legalidad, Nombre05 una serie de condiciones sine qua non para efectos de procedencia, según lo dispuesto por el legislador. De esta manera, en todos los casos se requiere de la previa autorización del superior jerárquico del fiscal que promueve el acuerdo, según los distintos supuestos fácticos que autoriza el legislador. El primero de ellos, contemplado en el inciso a) del artículo 22 del Código Procesal Penal dispone: “Se trate de un hecho insignificante, de mínima culpabilidad del autor o partícipe o con exigua contribución de este, salvo que exista violencia sobre las personas o fuerza sobre las cosas, se afecte el interés público o el hecho haya sido cometido por un funcionario público en el ejercicio del cargo o con ocasión de él.” Según el fundamento jurídico expuesto por los jueces de juicio en la sentencia condenatoria…, este es el supuesto de hecho aplicable para en el presente asunto. Sin embargo, ninguno de los requerimientos allí dispuestos, se cumplen en el caso sub examine. Esta Cámara considera que el delito de homicidio no es, desde ningún punto de vista, un hecho insignificante. La figura del autor material del homicidio contraviene el concepto de “mínima culpabilidad” o “exigua contribución”. Dar muerte a una persona es la representación máxima de violencia contra un ser humano y, por ende, afecta directamente el interés público. Consecuentemente, los hechos probados del fallo incumplen todas las exigencias legales consagradas en esta hipótesis fáctica. Si continuamos al siguiente sustrato, contenido en el inciso b) del artículo en mención, establece: “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, Nombre11 que la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita… A partir de lo anterior, los hechos aquí acusados se podrían adecuar a los lineamientos estipulados sobre criminalidad violenta, delitos graves, colaboración eficaz, ayudar a esclarecer el hecho investigado y proporcionar información útil para probar la participación de otros imputados, porque existe una declaración del testigo de la corona que para efectos del Tribunal sentenciador fue suficientemente clara, convincente y veraz, acerca de la participación de los demás encartados, Nombre02 como en cuanto al móvil y a la dinámica desarrollada, desde la planeación hasta la ejecución del crimen, capaz de acreditar conjuntamente con la demás prueba de cargo, los hechos endilgados. Sin embargo, la ley prevé que además de esos requisitos, “la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita.” En cuanto a este último requerimiento, es que la defensa dirige su reclamo y es precisamente sobre el cual debe existir un cuidadoso análisis, con el fin de determinar la legalidad y procedencia del criterio de oportunidad que le fuera otorgado a Nombre38.Nombre39., en calidad de lo que en doctrina se denomina “imputado arrepentido” o “testigo de la corona” del ente acusador. Sin perder de vista que se trata de una estructura delincuencial, en la cual existen funciones claramente delimitadas entre los sujetos partícipes, debe realizarse un examen lógico y analítico, tendiente a determinar la esencialidad y relevancia de la conducta del agente que pretende beneficiarse con la aplicación de este instituto. A partir de la concreción efectiva de la acción que se le imputa y de la esencialidad y trascendencia en el resultado lesivo, se fijan los parámetros lícitos y proporcionales que demarcarían el convenio entre las partes; a saber, Ministerio Público, abogado defensor e imputado arrepentido o colaborador. Si bien, la ley le otorga al ente fiscal un amplio margen de negociación e incluso la potestad para prescindir total o parcialmente de la persecución penal, también es cierto que fija un límite para el ejercicio de esa discrecionalidad, en tanto advierte que el beneficiado deberá tener una conducta menos reprochable que la que se imputa a los demás copartícipes del hecho que se pretende cesar o probar. De igual forma, le da la posibilidad al Ministerio Público de graduar el otorgamiento de ese beneficio, en aras de valorar la reprochabilidad de la conducta frente a la de los demás copartícipes y la efectividad de la colaboración que brinda en la investigación, Nombre02 como en la obtención de la condena. La graduación del beneficio ofrecido al testigo de la corona, se encuentra directamente relacionada con que se prescinda parcial o totalmente de la persecución penal y, por ende, con la eliminación o la disminución de la pena a imponer. Así, una acción que se despliega por un sujeto acusado de favorecimiento real o personal en la organización delincuencial, no tendrá el mismo nivel de reproche que el que realiza la acción como cómplice del delito más grave, como tampoco se asemeja a la ejecutada por el autor o coautores. Por tanto, debe existir una correlación entre el beneficio ofrecido y el grado de reprochabilidad de la conducta, de manera tal que, se establezca una proporción racional para determinar si se prescinde completamente de la persecución penal o si por el contrario, el ilícito es sancionado de una forma menos rígida, haciendo la propuesta atractiva para el imputado arrepentido, pero que a la vez, resulte acorde para los fines de la justicia, evitándose así, que de forma indiscriminada se aplique la misma medida (de prescindir totalmente de la persecución penal) a todo tipo de partícipe en un delito, obviándose los requerimientos legalmente establecidos para la aplicación de este instituto. Es por esta razón que, consideramos ilegítimo el convenio efectuado entre los representantes del Ministerio Público, el imputado colaborador y su representante legal, debido a que no existe ninguna proporcionalidad entre el beneficio recibido y el grado de participación en los hechos acusados. A diferencia de lo que afirman los juzgadores en la sentencia condenatoria y en la resolución de alzada, la conducta atribuida al encartado Nombre51. es altamente reprochable; ya que, actuando en asocio con el sindicado Nombre52., dan muerte al aquí ofendido, o sea, materializan el hecho, sin que medie justificación alguna, más que el interés de recibir un beneficio pecuniario indebido. Optar por un criterio diferente, es aceptar que la figura del sicariato reviste de una censura insignificante e incluso nula, como en el caso que nos ocupa, en el cual se hace intrascendente la conducta desplegada por uno de los coautores. El Ministerio Público por su parte, tiene la facultad legal de negociar con el testigo de la corona, la imposición de una pena inferior a la dispuesta para los demás copartícipes, Nombre17 de esta manera, la impunidad de una conducta que ostenta un alto grado de reproche. Resulta además contradictorio, que mientras la Fiscalía prescinde totalmente de la persecución penal contra Nombre51., por esa misma conducta y, por ende, con el mismo grado de reproche, se le sanciona a Nombre52. al tanto de veinticinco años de prisión, como autor responsable del delito de homicidio calificado, al igual que la pena impuesta a los imputados que fueron acusados de ser los autores intelectuales… y el mediador que contrató a los sicarios e hizo el respectivo cobro por realizar el trabajo… En este sentido, es incompatible señalar que la conducta de uno de los autores materiales del hecho resulta menos reprochable, para justificar la aplicación del criterio de oportunidad y, por otra parte, sancionar con la misma pena a todos los demás imputados, evadiendo todo el razonamiento previo sobre la reprochabilidad de las conductas, según la estructura jerárquica de la organización criminal y las funciones encomendadas a cada miembro.” Este contrasentido en el raciocinio de los jueces vulnera la logicidad y legalidad del fallo, porque no es posible admitir que una conducta es menos lesiva que otra y la sanción se aplique a todos por igual. Tampoco es aceptable, que un argumento se utilice para legalizar un acuerdo y con otro totalmente opuesto, se imponga una pena tan alta de prisión, cuando es idéntico el hecho que se juzga en ambos casos. Por último, al haberse fundado la totalidad de la sentencia de mérito en la versión rendida por el testigo de la corona, con ocasión de un criterio de oportunidad que incumple con los requisitos legalmente establecidos para su procedencia, se anula la sentencia número 92-2013, de las once horas del veinticinco de febrero de dos mil trece, dictada por el Tribunal Penal del Tercer Circuito Judicial de San José y el juicio que la precedió; Nombre02 como la resolución número 2013-1448, de las once horas tres minutos del cinco de julio de dos mil trece, emitida por Tribunal de Apelación de la Sentencia Penal del Segundo Circuito Judicial de San José, en la cual se confirmó la sentencia de mérito. Se ordena remitir a la mayor brevedad el presente asunto al Tribunal de origen, para que con una nueva integración se realice el juicio de reenvío...”. La cita anterior es extensa, pero indispensable para dimensionar los alcances del control jurisdiccional que, según el órgano de casación, se debe hacer del tema del reproche y que respalda la tesis de esta cámara. Hablamos de sentencias donde no se ha tenido reparo alguno para examinar el punto, donde se reconoce de forma expresa e implícita que ese análisis se puede reiterar en distintas fases del proceso y sobre todo, donde se descarta la tesis del a quo, en el sentido de que ese requisito en particular contemplado por el inciso b) del art. 22 C.P.P., en cualquier etapa del procedimiento, está exento de control jurisdiccional. También es importante referir lo dicho por la Sala Constitucional en cuanto a este extremo. Según las juezas de primera instancia, el tribunal constitucional mediante jurisprudencia vinculante prohibió al juez controlar si la conducta del colaborador es menos reprochable que los hechos criminales atribuidos a otros imputados. Tal afirmación no es exacta. En la resolución Nº 12090, de las 14:40 horas del 31 de julio de 2009, la Sala Constitucional se pronunció sobre una acción de inconstitucionalidad promovida por [Nombre01 033] en contra de los artículos 22 y 23 del Código Procesal Penal. La acción se rechazó por el fondo y en lo que aquí interesa, se indicó: “ Por otra parte, el artículo 22 in fine, es claro al señalar que la solicitud de aplicación de un criterio de oportunidad, debe plantearse ante el tribunal, que es quien resuelve en definitiva, ejerciendo el debido control de legalidad. No es cierto entonces, lo señalado por el accionante, en cuanto a que no existe un control por parte del juez de garantías. Ese control no puede entenderse, de ningún modo, en el sentido de que el juez puede reemplazar las decisiones de los fiscales relacionadas con la oportunidad y conveniencia político criminal de iniciar o continuar con la persecución penal. Conforme se analizará, el control judicial debe limitarse a los requisitos legales, pero no puede valorar aspectos que son propios del ejercicio de la función de la acusación. Para poder lograr los objetivos que persigue el principio de oportunidad, debe ser administrado por el órgano encargado de la persecución penal estatal. Debe agregarse, que el hecho que no se encuentre previsto el 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...”. Más adelante, en esa misma resolución, también se afirmó: “ VII. Sobre el principio de independencia judicial. Indica el accionante que las normas cuestionadas infringen el principio de independencia judicial, porque el Ministerio Público subordina al juez que realmente desaparece de la escena penal y queda reducido a cumplir una tarea meramente formal, lo cual, lesiona su independencia, debilitando la protección de los derechos de los demás imputados, especialmente, el derecho a la defensa, a un juicio justo y al debido proceso con todas las garantías.- En relación con este aspecto, debe reconocerse que el Ministerio Público ha de ser el eje de cualquier sistema acentuadamente acusatorio. En la aplicación de los criterios de oportunidad, es al órgano de la acusación quien debe decidir la conveniencia y necesidad de su aplicación, por habérsele atribuido la competencia de diseñar las políticas de persecución criminal, ejercer la acción penal y llevar a cabo la investigación preparatoria. Según lo previsto por el legislador, el juez ha de ejercer un control de legalidad sobre la aplicación de dichas medidas, pero no sobre la oportunidad y conveniencia. Tal división de funciones, lejos de vulnerar el principio de independencia judicial, más bien lo fortalece, dado que la función jurisdiccional debe restringirse a controlar el respeto de los derechos y garantías de las partes y no a decidir sobre la acusación. Sobre este tema, la Sala se pronunció en la sentencia 2662-01 de las 15:30 hrs. del 4-4-01, donde se resolvió una consulta judicial interpuesta sobre la constitucionalidad de la decisión del fiscal adjunto que obligaba al juez a admitir la aplicación de un criterio de oportunidad por insignificancia del hecho y ordenar el sobreseimiento definitivo. En lo que interesa, se señaló: “En consecuencia, corresponde al Fiscal decidir respecto de la conveniencia de aplicar o no un criterio de oportunidad. Las partes pueden solicitar su aplicación, en el plazo de cinco días que prevé el artículo 316 del Código Procesal Penal. No obstante, el tribunal del procedimiento intermedio no puede aceptar esa solicitud sin la aprobación del Ministerio Público, que según se dijo, debe contar con la aprobación del superior jerárquico. Constituye un deber y atribución del Fiscal General el establecer la política general del Ministerio Público y los criterios para el ejercicio de la acción penal (artículo 25 inciso a) de la Ley Orgánica del Ministerio Público). En consecuencia, de conformidad con esa estructura, el análisis que ha de hacer el tribunal para autorizar la aplicación de un criterio de oportunidad, debe limitarse a verificar el cumplimiento de los requisitos formales establecidos por el legislador. 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, es a él a quien se le atribuye la responsabilidad, pues ello conlleva a desnaturalizar –dentro del sistema por el que se ha optado (el acusatorio)- la función de juzgador que le corresponde, debiendo esperar a ser debidamente excitado por el órgano requeriente para poder actuar. En el supuesto del artículo 22 inciso a), correspondiente al criterio de insignificancia del hecho, cuya aplicación origina esta consulta, el juez debe verificar que el hecho no hubiere sido cometido por un funcionario público en el ejercicio del cargo o con ocasión de él. La determinación de si se trata de un hecho que afecta o no el interés público corresponde al Fiscal porque es un criterio valorativo que tiene que ver con el ejercicio de la política criminal del Estado, a ponderar en cada caso concreto por la representación del Ministerio Público. Lo anterior, por cuanto es un hecho claro, que en todos los delitos de acción pública está de por medio la afectación a un interés público, de ahí que la sociedad en su momento, consideró necesario tipificarlos como tales. Es el Ministerio Público –se reitera- quien debe realizar el juicio respecto de la conveniencia, utilidad y necesidad de la persecución penal en cada caso concreto.” …Es claro entonces que es al Ministerio Público y no al juez, a quien corresponde decidir sobre la conveniencia u oportunidad de aplicar los criterios que prevé el artículo veintidós del código procesal penal. Esta decisión es una expresión de la potestad acusatoria y que responde a una política de persecución atribuida, exclusivamente, al órgano de la acusación. No obstante, el legislador estableció un control de legalidad que el juez debe ejercer respecto del cumplimiento de los requisitos que contiene la propia normativa objetada. No se trata de una decisión que carezca de valoración judicial, aunque en algunos sistemas eminentemente acusatorios, no se exige tal control, sin que se haya considerado que tal liberalidad conculque derechos fundamentales.” (El subrayado no es del original). Para quienes suscriben esta resolución, el anterior precedente no puede interpretarse de la manera expuesta en el voto de mayoría. En primer término, la Sala Constitucional no señaló que el control jurisdiccional se deba circunscribir a parte de los requisitos que prevé el artículo 22 inciso b) del Código Procesal Penal. Todo lo contrario. Afirmó que en nuestro país, a diferencia de lo que sucede en otras latitudes (donde se ha asumido un modelo según el cual el principio de oportunidad es la regla y las decisiones que adopta el Ministerio Público no están sujetas a valoración judicial), el juez es el llamado a determinar si se cumplen los requisitos contemplados en el ordenamiento jurídico. Esto, indica la Sala Constitucional, no faculta al juzgador para asumir tareas que no le corresponden, por ejemplo, para valorar la conveniencia u oportunidad de prescindir de la persecución penal en un caso determinado. Y es que en efecto, la decisión de perseguir o no una determinada conducta es resorte del Ministerio Público, sin embargo, esto no significa que en ese ámbito tenga discrecionalidad máxima. Sus decisiones están supeditadas a la ley -pues solo puede prescindir de la persecución penal y prometer ventajas en los términos que señala esta, cfr. art. 22 y 96 C.P.P.-, siendo labor del órgano jurisdiccional, también por expresa disposición del legislador, el garantizar el respeto al ordenamiento jurídico. Es importante añadir que si bien la Sala Constitucional señaló que hay valoraciones que solo puede realizar el Ministerio Público (p. ej., establecer que en un caso particular la afectación al interés público fue insignificante en los términos que indica el art. 22 inciso a) del C.P.P., cfr. sentencia Nº 2662-01 mencionada en la Nº 12090-2009 antes reproducida), esto no permite interpretar que tratándose del inciso b) del numeral 22 -es decir, de otro supuesto- el Ministerio Público puede determinar sin ningún control jurisdiccional que la conducta del colaborador es menos reprochable que otros hechos punibles, o afirmar como lo hace el tribunal de mérito, que esta posición sea la asumida por el máximo tribunal constitucional de nuestro país, dejando de lado que este lo único que ha indicado de forma expresa es que la conveniencia de aplicar o no el instituto jurídico mencionado es resorte del órgano requirente, posición que se comparte sin reservas, pues en efecto, solo el Ministerio Público puede decidir si conviene prescindir de la persecución penal de un imputado en un caso particular, a cambio de su colaboración. Lo anterior, se insiste, no significa que pueda negociar con cualquier imputado en cualquier caso, o negociar cualquier beneficio, esto en la medida en su solicitud, para ser acogida, depende de que se verifique el cumplimiento de los requisitos definidos por el C.Nombre06. Obviamente, ni el juez penal, ni el tribunal de juicio o los órgano que conocen del asunto en impugnación, van a valorar la oportunidad de la decisión del Ministerio Público (sustentada en su política persecutoria), pero sí deben corroborar, porque Nombre02 lo dispone el ordenamiento jurídico, el estricto cumplimiento de sus requisitos (legales y constitucionales), que es algo diverso. Del mismo modo, será el Ministerio Público el que deba asumir las consecuencias de decidir en ese ámbito de forma incorrecta, pues si negocia con un imputado cuya declaración además de esencial, es inverosímil, es probable que el resultado del proceso no sea el deseado, Nombre02 como si negocia con un imputado al que le cabe un mayor reproche, también es plausible que en cualquier etapa procesal y ante las protestas de las partes, la negociación se considere ilegal. En resumen, con fundamento en los mismos precedentes que cita el a quo y en los cuales se subraya la importancia de la legalidad como principio rector de las actuaciones de cualquier órgano público, esta cámara concluye que el tribunal, al margen de la etapa en que el procedimiento se encuentre, está obligado a verificar que se cumplan todos los requisitos contemplados en el artículo 22 del Código Procesal Penal, incluyéndose por tanto, lo relacionado con el menor reproche que debe corresponder a la conducta del imputado colaborador cuya persecución penal se prescinde. Para que el juez logre apreciar este extremo, son intrascendentes las políticas de persecución penal diseñadas por el Ministerio Público, mismas que sí adquieren relevancia a efectos de establecer por ejemplo, los casos e imputados en relación con los cuales ese órgano solicita la aplicación de un determinado criterio, materia en la que ciertamente, tiene un margen considerable de libertad. En este mismo orden de ideas, tampoco sobra insistir en que la resolución Nº 2662-2001 mencionada a su vez en la Nº 12090-2009 de la Sala Constitucional, se pronunció sobre el inciso a) del artículo 22 C.P.P. y no sobre el inciso b), que es el que aquí nos compete. Aunado a esto, hay otras resoluciones de la referida Sala, p. ej., la Nº 2002-06808, de las 14:46 horas del 10 de julio de 2002, donde en voto de mayoría, y sí refiriéndose a lo dicho en el inciso b) del numeral 22, se Nombre07 el control efectuado por el tribunal de juicio sobre la legalidad de un criterio de oportunidad: “La disconformidad del recurrente radica en el hecho de que la amparada… firmó un convenio con el Ministerio Público, para la aplicación el principio de oportunidad reglado, en el supuesto establecido en el artículo 22 inciso b) del Código Procesal Penal, y luego de ofrecer una declaración de gran utilidad para llegar a la verdad de los hechos investigados, el tribunal recurrido revocó el convenio, dejando en total indefensión a la imputada. Al respecto, lo primero que debe esta Sala aclarar es que el mismo Código Procesal Penal distribuyó claramente las competencias en materia de aplicación del principio de oportunidad reglado, dejando en Manos del Ministerio Público el análisis de conveniencia y oportunidad de abstenerse de ejercer la pretensión punitiva en los casos previstos en el artículo 22; asimismo, deja a los tribunales penales el control de la legalidad en el uso de dicho instrumento, dada la gravedad que implicaría su aplicación en forma contraria a Derecho. En el caso expreso de los incisos b) y f) del ya citado artículo 22, los efectos del convenio que suscriba el Ministerio Público con la persona imputada, son meramente provisionales, y adquieren firmeza hasta que el Tribunal de Juicio determine en forma definitiva si procede –de acuerdo con los parámetros previstos en la Ley- prescindir de la acción penal en contra de aquella. Es decir, queda claro que la Nombre11 suscripción de un convenio entre el Ministerio Público y el imputado en una causa penal, comprometiéndose el segundo a brindar información de utilidad en la investigación, no confiere por sí sola derecho a la obtención de una resolución de sobreseimiento en ese proceso, sino que queda Nombre11 en manos del juez la decisión final en esta materia… En el presente caso, es obvio que la amparada no podía exigir que el Tribunal de Juicio aplicara sin un previo juicio de legalidad, el convenio que firmó con el Ministerio Público. Nombre02 las cosas, la actuación del tribunal recurrido, revisando si el acuerdo en cuestión cumplía con los requisitos del artículo 22 inciso b), no resulta ilegítima, sino conforme con sus competencias, según fue explicado en el párrafo anterior…”, voto que respalda lo dicho por este tribunal de apelación de sentencia y que el tribunal de mérito desconoce, al sustentarse solamente en el voto de minoría suscrito por el magistrado Fernando Cruz Castro, mismo que a mayor abundamiento, tampoco pone en entredicho nuestras conclusiones. Nótese que el juez Cruz Castro no niega que el tribunal de juicio pudiese o debiese constatar el cumplimiento de los requisitos que contempla el artículo 22 inciso b) del C.P.P. Lo que cuestiona es que ese despacho tomase medidas en contra de la libertad de una persona (el colaborador), contra la cual no se había formulado una acusación que delineara su responsabilidad penal. Dicho voto salvado indica: “… La intervención del tribunal de juicio frente a una decisión adoptada por la Fiscalía, rechazando un convenio entre la encausada, y el representante del Ministerio Público, decretando, al mismo tiempo, la detención de una persona contra la que no se había formulado acusación, constituye una intervención impropia que desnaturaliza la función jurisdiccional, pues un requisito que asegura la imparcialidad del juzgador es su desvinculación de la potestad requirente. Esta separación asegura la vigencia efectiva de la imparcialidad del juzgador, que es una de las garantías orgánicas más importantes que definen la función jurisdiccional. Sin que el tema lo hubiese definido el órgano acusador, los jueces del tribunal delinearon una posible responsabilidad de la accionante, anticipando un juzgamiento, sin que se hubiese ejercido la acción penal. El Tribunal rechaza el convenio y la aplicación del principio de oportunidad, pero al decretar la detención y pronunciarse sobre la posible responsabilidad de una testigo contra la que no se había ejercido la acción penal, asume, impropiamente, las funciones que corresponden al órgano acusador. La libertad de un ciudadano no se tutela satisfactoriamente si el juez asume potestades represivas y de juzgamiento, sin que el órgano requirente haya formulado la acusación. La posible responsabilidad penal de la accionada en un proceso en el que el ente acusador no había ejercido la acusación, constituye un exceso que violenta el equilibrio de poderes y la clara diferenciación de actores y potestades que rige el proceso penal. La posible responsabilidad penal que puede corresponderle a un testigo que declara en tal condición y contra el que no se ha ejercido la acción penal, es un tema irrelevante que no justifica un juzgamiento anticipado como el que ejerció el tribunal de juicio, porque ninguna persona que declare bajo juramento o sin él, puede proporcionar prueba legítima que lo autoincrimine. En función del resguardo de tal probabilidad, jurídicamente inadmisible y cuyas consecuencias deben resolverse en otro proceso, previo ejercicio de la acción requirente, el tribunal no puede inmiscuirse sobre el juzgamiento de un hecho que no se le ha sometido a su conocimiento. Tampoco era relevante la posible salida del país; de la del testigo-imputada, porque tal extremo es una responsabilidad del Ministerio Público, especialmente frente a una ciudadana sobre la que el órgano competente no había ejercido su poder requirente. Tampoco se trataba de un delito flagrante y por este motivo no podían decretar la detención inmediata de la accionante, como se hizo en la audiencia de juicio. Afirmar que no se detuvo a la testigo porque la pusieron a la orden de las autoridades competentes, es un argumento falaz con el que se pretende ocultar una actuación en la que el poder jurisdiccional excede sus límites, desdibujando la diferencia entre acusación y juzgamiento, conculcando, de paso, la imparcialidad de la jurisdicción. Conforme lo establece el código procesal penal, el tribunal puede rechazar el convenio pero no puede fundar tal determinación en una especulación sobre la posible responsabilidad del testigo de la corona, sino que debe hacerlo en sentencia, conforme a los requisitos que prevé el artículo 23 del c.p.p. El Juez no puede anticiparse al resultado que tendrá la acusación y menos si se trata del propio tribunal de sentencia, pues no es posible que éste establezca sobre la posible autoría que corresponde al testigo de la corona, cuando todavía no ha pronunciado sobre la acusación en la que se excluye al colaborador y en la que se mencionan a otros actores y posibles coautores del hecho. El problema en este caso no es que el convenio asegure el sobreseimiento de la accionante que no sería una pretensión admisible legalmente, sino que el tribunal impuso una limitación a la libertad de… sin tener la legitimidad que exige tal decisión, puesto que el órgano competente no había ejercido su potestad requirente. Aunque la Fiscalía no había solicitado, previamente, el juicio de legalidad que corresponde al tribunal de la etapa intermedia (ver último párrafo del artículo 22 del c.p.p.), tal omisión no autoriza al tribunal de juicio a rechazar el criterio de oportunidad con fundamento en una serie de apreciaciones y especulaciones sobre el resultado de una acción que el Ministerio Público no ha ejercido. El rechazo del criterio de oportunidad que prevé el apartado b) del artículo 22 del c.p.p. debe fundarse en la descripción y pruebas de la acusación principal, pero no es aceptable, tal como ocurrió en el presente caso, que el rechazo se funde en una valoración anticipada de la prueba, Nombre02 como en una interpretación de los hechos que no contiene la acusación. El rechazo del acuerdo no puede fundarse en una determinación fáctica y jurídica que no se desprende de la acusación y del acuerdo; es por esta razón que el artículo 23 del c. p. p. deja en suspenso la extinción de la acción penal, autorizándolo hasta después que se ha celebrado el juicio, que es la oportunidad en que el tribunal, en el ejercicio pleno de sus potestades, una vez recibida la prueba conforme a los principios constitucionales que legitiman su recepción y valoración, determina si la colaboración es legalmente aceptable, definiendo dos puntos: a) si se trata de una persona cuya acción en la acción delictiva es menos reprochable que la que facilitó a resolver y en segundo término; b) si la colaboración brindada por el testigo colaborador, ha sido decisiva. La evaluación de estos parámetros no los puede hacer antes de la celebración del debate, como los hizo el tribunal de juicio, construyendo una hipótesis acusatoria sobre la que no tenía ninguna intervención, como bien lo define el Código Procesal Penal al reconocer, como corresponde, que la eventual responsabilidad del testigo de la corona debe resolverse hasta después de que se ha celebrado el debate (ver párrafo segundo del artículo 23 del c.p.p.). Ante el incumplimiento de las disposiciones que prevé el Código de Procedimientos Penales (último párrafo del artículo 22 y 24 del c.p.p.), el tribunal bien pudo rechazar el convenio que presentó, sorpresivamente, el Ministerio Público, pero sin pronunciarse sobre el contenido del convenio y la posible participación de la accionante. Tampoco podía el tribunal según se expuso, decretar la detención de una persona que no era una delincuente en flagrancia y contra la que no había ejercido la acción penal el Ministerio Público. La admisibilidad o legalidad del criterio de oportunidad aplicado por el Ministerio Público, no autoriza al Tribunal a ejercer las potestades que corresponden a la acusación. En virtud de los argumentos que se han expuesto, estima quien suscribe este voto, que aunque la presentación sorpresiva que hizo el Ministerio Público del convenio con la accionante, lesiona los principios de lealtad y del debido proceso, tal yerro no autoriza al tribunal de juicio a ejercer potestades que corresponden al órgano de la acusación, pronunciándose sobre la posible responsabilidad penal de una persona, sin que contra esto se haya formulado acusación y decretando, con fundamento en tal determinación, la detención ilegítima de la accionante ...”. C omo se observa, en este voto salvado no se niega la posibilidad de que el tribunal de juicio controle el cumplimiento de todos los requisitos que prevé el artículo 22 inciso b) C.Nombre06. Al contrario, se admite dicha opción, en el entendido de que esto se debe hacer una vez evacuada la prueba en el debate. Por todo lo expuesto, esta cámara concluye que el control jurisdiccional sobre la procedencia del criterio de oportunidad debe existir, verificando el cumplimiento de los requisitos legales -sin distinciones, pues la ley no distingue al respecto- que el código de rito exige para su aplicación. No se trata de suplantar al fiscal en la elección de los casos en los que, por razones de política criminal, se debe prescindir de la persecución penal (pues ciertamente, nadie discute que determinar la oportunidad de la medida en un caso concreto es resorte del órgano requirente), sino de garantizar que la actuación de aquel -entiéndase, la aplicación a un caso concreto- se ajuste al ordenamiento jurídico. Finalmente, el hecho de que el criterio de oportunidad deba tramitarse en un expediente aparte, no es, como señala el tribunal de juicio, un argumento que le exima de su deber de controlar el cumplimiento de los requisitos que dieron pie a su aplicación, ya que si bien es cierto que la declaración del imputado colaborador tiene lugar en el debate, con lo cual la prueba se produce en ese momento y no antes, no se puede desconocer que dicha declaración tiene su razón de ser en el mencionado criterio. Si este no se hubiese negociado, el colaborador no rendiría testimonio y en ese tanto no podemos excluir del control judicial aquel procedimiento. Como de forma acertada se indica en el voto suscrito por el juez Camacho Morales, la promesa de impunidad, la promesa de prescindir de la persecución penal, sea total o parcial, es lo que mueve la voluntad del colaborador y por eso se requiere corroborar si esa promesa se ajusta o no a la normativa. Esto, lógicamente, debe tener lugar en el proceso principal, pues es en este donde se prescinde de la persecución penal del colaborador y se acusan las conductas punibles que, a luz del artículo 22 inciso b), deben ser más reprochables que aquellas que dejan de ser de interés para el Ministerio Público. El hecho de que el criterio de oportunidad haya sido acogido por un juez penal no es óbice para que el tema sea conocido por el tribunal de juicio, ya que en nuestro proceso penal las partes pueden protestar de forma reiterada los vicios que les causan un agravio, sean estos absolutos o relativos cuando no han sido convalidados. Dicho esto, tenemos también que en la sentencia recurrida, se exponen algunas razones adicionales para sustentar la negativa a resolver sobre el criterio, las cuales conviene examinar detenidamente. La primera es que el proceso en el que se tramitó el criterio de oportunidad es independiente de este. Como ya se adelantó, esto Nombre05 dejar de lado que la declaración de [Nombre01 064] debía rendirse en esta causa; que el criterio de oportunidad tiene lugar porque, al menos en principio, la conducta de [Nombre01 064] es menos reprochable que la que se atribuyó a otros encartados y, finalmente, que será con base en lo dispuesto en este asunto que se determinará si las expectativas por las cuales se suspendió el ejercicio de la acción penal han sido satisfechas. Es decir, aunque se admita que el criterio de oportunidad se tramita en un testimonio de piezas que es independiente del expediente principal, y que el relato de [Nombre01 064] que allí consta no tienen por qué ponerse en conocimiento de quienes figuran como imputados en este asunto (así, resoluciones Nº 4142 de las 14:51 horas del 2 de junio de 1999 y Nº 1119 de las 11:09 horas del 4 de febrero de 2005, ambas de la Sala Constitucional), la legalidad del trámite (cumplimiento de requisitos contemplados por el C.P.P.) es parte de los temas que el tribunal de juicio puede y debe controlar (sea porque las partes lo solicitan, o porque entiende que lo debe hacer de oficio), igual que sucede tratándose de otros actos procesales que tienen lugar en etapas precedentes y a través de los cuales se abre la puerta para que, en el debate, se produzca o incorpore una determinada probanza (v.g., la resolución que ordena un anticipo jurisdiccional de prueba). A mayor abundamiento, el tribunal de mérito incurre en contradicciones, ya que si con el argumento de que el criterio de oportunidad se tramitó en un proceso independiente se negó a revisar los requisitos que -erróneamente- calificó como sustanciales (a saber, el menor reproche al colaborador), tampoco tendría competencia para comprobar el cumplimiento de los que denominó formales (a saber, solicitud expresa de la fiscalía que cuente con el aval del superior jerárquico y aprobación jurisdiccional) , siendo que esto último sí lo hizo. A lo expuesto, cabe agregar una inconsistencia adicional, a saber, no obstante que las juezas de juicio aceptaron examinar las cuestiones procedimentales, omitieron resolver los reclamos planteados por los defensores de [Nombre01 033] y [Nombre01 041] por la falta de fundamentación de la resolución dictada por la jueza penal (cfr. folios 13.676 frente y vuelto, 13.677 vuelto, tomo XXVIII), lo anterior a pesar de que el vicio referido es claramente es de forma. Como segundo argumento, las profesionales que suscriben el voto de mayoría sostienen que en cuanto al criterio de oportunidad, lo resuelto solo se puede impugnar a través del recurso de apelación contra el sobreseimiento definitivo que pueda llegar a dictarse en el proceso donde se tramita la aplicación de ese instituto jurídico. Tal postura, evidentemente, hace nugatorio el derecho de defensa de los acusados del proceso principal que resultan perjudicados con la declaración del colaborador, máxime si se considera que ellos no son parte de aquel procedimiento (de hecho, Nombre02 lo reconoce el a quo). Además, el sobreseimiento definitivo sobrevendría, según el artículo 23 del Código Procesal Penal, una vez que el fallo -entiéndase, el que dictó el tribunal de mérito en este asunto- ha adquirido firmeza, con lo cual la posición de los justiciables, condenados para entonces, estaría consolidada. Es decir, nos encontramos ante el absurdo de que el trámite para aplicar un criterio de oportunidad a un imputado colaborador, incluso en los supuestos donde sea abiertamente ilegal, estaría exento de todo control, pues según la tesis del a quo los denominados requisitos sustanciales nunca pueden ser valorados por el juez y porque, sencillamente, los agraviados con la decisión de aplicar el criterio no pueden cuestionar esta en ningún proceso, (ni en este que se sigue en su contra, ni en aquel donde se tramita el criterio, pues no son parte), lo que implicaría una flagrante violación del artículo 42 de la Constitución Política. Como tercer argumento, el voto de mayoría sostiene que analizar el tema supondría adelantar criterio. Esto tampoco es de recibo, ya que una cosa es comparar los reproches basándose en la información suministrada por el órgano requirente al solicitar el criterio de oportunidad y otra distinta es emitir pronunciamiento acerca de si esas conductas efectivamente ocurrieron o no, siendo esto último lo que comprometería la imparcialidad del tribunal de mérito. En todo caso, Nombre11 quedaba la opción de diferir la resolución del tema para sentencia, como de forma expresa lo señala el artículo 342 del Código Procesal Penal y lo manifestó el magistrado Cruz Castro en el voto salvado que las juezas invocan. Por todo lo expuesto, esta cámara concluye que la aplicación del criterio de oportunidad contemplado en el artículo 22 inciso b) del C.P.P. está sometido a control jurisdiccional y que por ende el tribunal, sea el juez penal, el tribunal de juicio, e inclusive los órganos de apelación de sentencia y casación, cuando Nombre02 corresponda, debe comprobar el cumplimiento de todos los requisitos que el legislador exige para tales efectos. No se trata de suplantar al fiscal en la elección de los casos en los que por razones de política criminal, considera que se debe prescindir de la persecución penal, sino de garantizar que en aquellos que sean elegidos por el órgano requirente, se cumpla con las formalidades exigidas por el ordenamiento jurídico para tales efectos.
• 2)Examen del criterio de oportunidad otorgado a [Nombre01 064]. Vicios presentes en su trámite y en la resolución que lo autorizó . Como ya se explicó, este tribunal no comparte el criterio del a quo en el sentido de que no era competente para valorar la procedencia del criterio de oportunidad y en particular, para comprobar si las conductas de cuya persecución penal se prescindía, eran menos reprochables que aquellas cuya persecución se facilitaba. En razón de esto y siendo que algunas partes también han reclamado el vicio en esta fase procesal, se procede a hacer el citado examen en este momento, concluyendo que la aplicación del citado instituto jurídico en beneficio de [Nombre01 064] es ilegal. La resolución donde se aceptó la aplicación del criterio de oportunidad fue emitida por el Juzgado Penal del Segundo Circuito Judicial de San José, a las 9:51 horas del 1 de junio de 2007 (cfr. folios 41 a 89 frente, del legajo denominado “Legajo de solicitud del criterio de oportunidad”). En cuanto a esta, lo primero que hay que señalar es que se trata de una resolución ayuna de fundamentación . La jueza penal que resolvió el tema, además de transcribir los 116 puntos que citó el Ministerio Público en su solicitud, la acogió señalando una serie de extremos que se puede sintetizar así: i) Al lado de la persecución penal oficiosa, derivada del principio de legalidad, la ley también autoriza al Ministerio Público para prescindir de ella en ciertos casos regulados por la misma ley y por “conveniencia de la política criminal del sistema vigente” (f. 83 frente del citado legajo); ii) definir la política criminal y prescindir de la acción penal son facultades discrecionales que no pueden ser controladas por el juez: “En esta investigación las Fiscales hacen uso de esa facultad y solicitan a favor del imputado [Nombre01 064], la aplicación del criterio de oportunidad bajo la premisa del inciso b) del citado artículo 22 del CPP, la solicitud que se conoce, y se enfatiza en las facultades discrecionales que no pueden ser controladas por el juez, de manera que por razones de economía procesal, y como en definitiva es el Ministerio Público quien determina si se ejerce la acción penal o se prescinde de su ejercicio en el caso concreto” (sic, f. 83 mencionado); iii) la solicitud cuenta con el visto bueno del superior jerárquico; iv) tras citar los artículos 22 inciso b) y 23 del Código Procesal Penal, la jueza penal afirma que es procedente la aplicación del criterio. En este punto, transcribe lo indicado en la solicitud formulada por el Ministerio Público (f. 85 a 87 frente) y, cerrada la cita textual, afirma: “Según lo exponen las señoras fiscal (sic) , la razón de peso que motiva esta petición por parte del Ministerio Público se sustenta bajo la premisa de que se trata de un asunto de tramitación compleja, en el cual el encartado [Nombre01 064] realizó declaración escrita a efectos del criterio de oportunidad, comprometiéndose a rendir declaración, en etapa de juicio o en cualquier audiencia oral, donde brindara o ratificara toda la información veraz, útil y pertinente para el esclarecimiento de los hechos investigados en contra de los encartados [Nombre01 041], [Nombre01 078], [Nombre01 046] y [Nombre01 033]. Nombre02 mismo señala que la conducta atribuida a el (sic) encartado [Nombre02 064] resulta menos reprochable que la del encartado [Nombre01 033]. Por otra parte, nótese que la Fiscal interpone la solicitud antes de formular la acusación, por escrito, ante el Juez de la Etapa Intermedia y como se indicó supra con la autorización del superior jerárquico, que son los aspectos formales cuyo cumplimiento debe verificar el juez, y a lo que se limita en definitiva el control de la legalidad que se debe realizar. En consecuencia, Nombre02 las cosas se acoge la solicitud…” (F. 87 frente, el destacado no es del original). Como se observa, no existe ningún pronunciamiento acerca de si las conductas atribuidas a [Nombre01 064] eran o no menos reprochables que las imputadas a [Nombre02 041], [Nombre01 078], [Nombre01 046] y [Nombre01 033], acusados cuya intervención en los hechos, según se afirma en la solicitud de aplicación del criterio de oportunidad, es la que se pretendía acreditar a través de la declaración que rendiría [Nombre02 064] en el debate (cfr. folio 28 frente del legajo en cuestión, Nombre02 como folio 1, punto 1.- del legajo denominado “Acuerdo entre la fiscalía y [Nombre 064] para la aplicación del criterio de oportunidad”, prueba Nº 776). Se está ante una resolución carente de fundamentación y, por ende ineficaz, sea porque la jueza penal sencillamente no expuso sus razonamientos en relación con el tema del reproche que le cabe al colaborador, o bien, porque decidió no hacerlo bajo la creencia de que tal extremo es ajeno al control jurisdiccional. De hecho, Nombre02 parece desprenderse de la resolución (cfr. últimas líneas reproducidas), posición que por lo dicho supra, es errónea. Aunado a esto, la conclusión antes expuesta -a saber, que la resolución presenta un vicio de falta de fundamentación- no varía ni siquiera al asumir hipotéticamente que el órgano jurisdiccional, al transcribir algunos extractos de lo expuesto por el Ministerio Público, los hizo suyos (y se subraya el carácter hipotético de la situación). Lo anterior porque la solicitud que formuló el órgano requirente también presenta el mismo defecto. Según se desprende de su lectura, no obstante que el Ministerio Público pretendía la aplicación de un criterio de oportunidad a favor de [Nombre01 064] para facilitar la persecución de [Nombre01 041], [Nombre01 078], [Nombre01 046] y [Nombre01 033], en su solicitud no dedicó una sola línea a explicar por qué las conductas de [Nombre 064], de cuya persecución penal se pretendía prescindir, eran menos reprochables que las de los imputados [Nombre01 041], [Nombre01 078] y [Nombre01 046]. En consecuencia, tampoco lo hizo la resolución que autorizó su aplicación y que, como ya se dijo, se limitó a transcribir lo dicho por el órgano requirente. En el caso de [Nombre02 033] la situación no es menos grave, ya que sobre el punto en cuestión -el reproche- solo se refiere que la conducta de [Nombre01 064] es menos reprochable que la de [Nombre01 033] porque este era [...] Nombre53 país y aquel un miembro de una junta directiva de una institución autónoma; porque [Nombre01 033] era quien designaba a la mayoría de Nombre10 de la citada junta y tenía injerencia en el accionar de esas instituciones, y porque [Nombre01 064] también era asesor de casa presidencial, con lo cual le debía obediencia a [Nombre01 033]. De lo anterior, indicó el Ministerio Público, “… se desprende el enorme poder que [Nombre01 033] ostentaba sobre “la dirección y accionar institucional”, como a nivel personal, sobre [Nombre01 064] (f. 30 frente del legajo). Es decir, si nos atenemos a la solicitud, que cabe reiterar, no fue ponderada por la jueza penal sino tan solo reproducida en su resolución (f. 86 a 87 frente), el único argumento ofrecido para sostener que la conducta imputada a [Nombre01 033] era más reprochable que las efectuadas por [Nombre01 064] se relaciona con el cargo que ostentaba el primero, dejando de lado toda consideración sobre las conductas efectivamente imputadas a [Nombre01 064] y a [Nombre01 033]. Como si todo lo anterior no bastase para entender que la resolución que autorizó el criterio de oportunidad es ineficaz, existe un vicio de mayor entidad que convierte en ilegal lo decidido. Y es que, tal y como se denunció en la etapa de debate y ahora, en fase de apelación de sentencia, de los autos se extrae que la jueza penal que aplicó el criterio de oportunidad no contó con toda la información necesaria para resolver. En realidad, las conductas que pueden imputarse a [Nombre01 064] y de cuya persecución penal se prescindió, fueron más que las referidas por el Ministerio Público al solicitar el criterio de oportunidad. De la mismas manifestaciones que hasta ese momento había hecho [Nombre01 064] ante el Ministerio Público, en las que narró conductas ajenas a las aquí investigadas y que también pueden estimarse delictivas, Nombre02 como del informe pericial 297-DEF (prueba Nº 598) y el expediente Nº 08-000032-0615-PE, seguido contra Nombre08 por el presunto delito de incumplimiento de deberes (y que se admitió como prueba en esta etapa procesal), se desprende que además de lo relacionado con la contratación de las 400.000 líneas, para el momento que se negoció el criterio habían elementos suficientes para sospechar que [Nombre01 064] había recibido otros tantos “premios o regalías”. Específicamente, $110.207,°° y $29.833,95 procedentes de [Nombre01 083] . y [Nombre 085]. (así, informe pericial Nº 297-DEF-540-04/05, folio 38 del informe); una retribución económica que se calcula en $56.000,°° en razón de lo resuelto sobre el proyecto de generación eléctrica La Joya (cfr. declaración indagatoria de [Nombre01 064] rendida a las 16:15 horas del 30 de septiembre de 2004, f. 132 frente del tomo I; denuncia formulada por [Nombre01 033], f. 19 frente del expediente Nº 08-000032-06154-PE y nota publicada en la sección de noticias nacionales, en La Nación.com, el sábado 2 de octubre de 2004, titulada “[Nombre01 064] admite otro ‘premio’ como directivo del ICE”, visible a folios 256 a 258 frente del expediente Nº 08-000032-06154-PE ya mencionado). [Nombre01 064] también describió algunas ventajas de contenido económico recibidas en sus viajes a Praga y Suiza (cfr. declaración indagatoria del 30 de septiembre de 2004 y denuncia de [Nombre01 033], f. 20 frente del expediente Nº 08-000032-06154-PE). Finalmente, en la denuncia interpuesta por [Nombre01 033], se mencionó que [Nombre01 064] recibió importantes sumas de dinero procedentes de [Nombre01 091] relacionadas con contratos distintos a los de telefonía celular, Nombre02 como un viaje a Brasil costeado por esa empresa [cfr., folio 19 del citado expediente Nº 08-000032-06154-PE y f. 1771 del tomo V (esto sobre el viaje a Brasil)]. Ahora, en ese mismo proceso -el seguido contra Nombre08-, la fiscal Maribel Bustillo Piedra admitió con claridad que, con excepción de las regalías disfrutadas en Praga y Suiza, los hechos que según [Nombre01 033] no habían sido investigados (es decir, lo relacionado con los dineros que [Nombre01 046] trasladó a [Nombre01 064]; con los fondos procedentes de [Nombre01 060] asociados a los contratos Nº 424 H 39552, 424 Nombre21 44031 y 424 H 39562; con el viaje a Brasil y con las retribuciones económicas relacionadas con La Joya y [Nombre01 083] -[Nombre01 270] ) no habían sido objeto de persecución penal porque estaban cubiertos por el criterio de oportunidad. Específicamente, la licenciada Bustillo Piedra solicitó desestimar la denuncia planteada por el imputado [Nombre01 033] contra el entonces Fiscal General de la República con los siguientes argumentos: “SE SOLICITA DESESTIMAR DENUNCIA. La suscrita, MARIBEL BUSTILLO PIEDRA, Fiscal de la Unidad de Delitos Varios… solicito la Desestimación de las presentes diligencias, con base en lo siguiente: RELACIÓN DE HECHOS. A. El señor [Nombre01 033], en su condición de denunciante, manifiesta que con ocasión de la investigación No. 04-006835-647-PE donde figura como imputado [Nombre01 064] (quien cuenta con el ejercicio de la acción penal suspendida por aplicación del instituto del Criterio de Oportunidad-), este reconoció no solo haber participado en los actos de corrupción en beneficio de la empresa [Nombre02 091] referidos a la adjudicación y contratación de cuatrocientas mil líneas de telefonía móvil, también reconoció haber realizado otra serie de conductas delictivas, respaldadas incluso con documentación que obra en el expediente principal, por ejemplo, los informes de la Sección de Delitos Económicos y Financieros del Organismo de Investigación Judicial, conductas que a su criterio, no fueron investigadas por el Ministerio Público.

Los hechos delictivos a los que hace referencia el denunciante y que indica, no han sido objeto de investigación por parte del Ministerio Público contra [Nombre01 064] , se refieren a:

 Dineros recibidos indebidamente por parte de la empresa [Nombre 091] con ocasión de: la compra de centrales fijas del “ICE-Switching program 2000-2001”, la compra para ampliación de centrales telefónicas efectuadas por el ICE el día 23 de mayo del año 2002 y un programa de expansión del ICE ($325.253,32).

 Dineros recibidos indebidamente por parte de [Nombre01 280] por la aprobación de la concesión del proyecto hidroeléctrico “La Joya” ($56.000,00).

 Dineros recibidos indebidamente por parte de [Nombre01 046] por pagos que le realizó la empresa [Nombre 091] por “diversos motivos” ($62.562.50).

 Dineros recibidos indebidamente por parte de la empresa [Nombre01 270]-[Nombre01 083] por contratación otorgada ($110.207,00).

 Costo de tiquetes por viaje San José-Río de Janeiro, Río de Janeiro-Sao Paulo, Sao Paulo-San José en primera clase por parte de la empresa [Nombre 091] ($5.617,00).

B. Por otra parte, el denunciante [Nombre01 033] señala que [Nombre01 064] también reconoció en su declaración indagatoria haber recibido regalías como Directivo del ICE, en viaje realizado a Praga y Suiza, hechos que indica, no han sido investigados por el Ministerio Público de manera premeditada para protegerlo ilegalmente.

II.-Sobre el fondo del asunto.

Luego de un estudio pormenorizado de las presentes diligencias, considera la suscrita… que en la especie es lo pertinente la desestimación de las presentes diligencias, por cuanto los hechos denunciados por el señor [Nombre01 033] no configuran delito.

A. El propio denunciante en su escrito… ofrece la respuesta al porqué los hechos mencionados no han sido, por el momento, objeto de persecución penal, al indicar…:

“…tales hechos no solo se han acreditado con su confesión (la de [Nombre01 064]) sino también pericialmente, y no obstante por el evidente acuerdo de negociación existente entre [Nombre01 064] y el Fiscal Nombre08…, no han sido a la fecha objeto de ningún tipo de investigación o imputación penal en contra del delincuente confeso [Nombre01 064] …” Efectivamente. El Ministerio Público ha convenido con el imputado [Nombre02 064] , la aplicación del instituto denominado Criterio de Oportunidad y al respecto existe suscrito acuerdo formal y por ello, al menos por el momento, no es objeto de persecución penal . Valga el momento para realizar algunas consideraciones de tipo aclaratorio… El Criterio de Oportunidad mencionado no fue llevado a cabo entre [Nombre01 064] y el denunciado Nombre08, sino entre [Nombre01 064], su defensor particular Edwald Acuña Blanco y los fiscales del Ministerio Público Carlos Morales Chinchilla, Criss Gonzáles Ugalde en fecha 31 de enero de 2006, siendo autorizado por quien fuera en aquel momento Fiscal Adjunto de la Fiscalía de Delitos Económicos, Corrupción y Tributarios, Licenciado Warner Molina Ruiz. Por otra parte, los hechos mencionados si (sic) han sido objeto de investigación, al punto de que tal y como lo indica el denunciante, están contenidos en varios documentos que forman parte del expediente principal, entre ellos, los informes policiales de la Sección de Delitos Económicos del Organismo de Investigación Judicial, pero como se indicara anteriormente, forman parte del acuerdo de aplicación del instituto del artículo 22… Ciertamente la investigación que lleva a cabo la Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios del Ministerio Público reviste una tramitación sumamente compleja sobre graves delitos de corrupción cometidos en altas esferas de quienes ostentaran el poder político en nuestro país en los primeros años de esta década… La conducta de [Nombre01 064] resulta menos reprochable que la de [Nombre01 033], pues en el ámbito de la función pública, en tratándose de delitos de corrupción, la sola condición de ser el [...] Nombre05 un mayor reproche que el que podría merecer cualquier otro funcionario público independientemente del puesto que desempeñe…

La Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios del Ministerio Público analiza que en el caso concurren todos los presupuestos procesales expuestos y por ello, decide aplicar el instituto con el imputado [Nombre01 064], no únicamente por los dineros indebidamente recibidos de la empresa [Nombre02 091] correspondientes a la contratación de por parte del Instituto Costarricense de Electricidad de las cuatrocientas mil líneas de telefonía inalámbrica de tecnología GMS (sic), sino también por los otros hechos delictivos mencionados. Esto se desprende claramente del “Acuerdo para la aplicación del criterio de oportunidad” llevado a cabo en la Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios en fecha 31 de enero del año 2006, el cual tuvo a la vista la suscrita representante del Ministerio Público y que podrá ser solicitado a esa oficina por el señor Juez Penal para su análisis. El acuerdo en lo que interesa establece:… “Presentes en la Fiscalía de Delitos Económicos, Corrupción y Tributarios, el imputado [Nombre01 064] , mayor… su defensor… los Fiscales… a efectos de fijar los límites respecto de la aplicación de un criterio de oportunidad a favor del imputado [Nombre01 064]… se acuerda: 1. El Ministerio Público… se compromete a solicitar a favor del imputado [Nombre01 064], se prescinda en forma total de la persecución penal en la causa arriba indicada, Nombre11 y cuando la declaración que se compromete a rendir en este caso, no sea desvirtuada por otros elementos probatorios que la hagan parecer como falsa, sea total o parcialmente…” En el acuerdo en mención puede observarse, el Ministerio Público en el ejercicio de sus facultades por ley conferidas, se compromete a solicitar a favor de [Nombre01 064], se prescinda de la persecución penal, no solo del hecho referido al dinero indebidamente recibido por parte de la empresa [Nombre 091] con ocasión de la contratación por parte del Instituto Costarricense de Electricidad de las cuatrocientas mil líneas móviles…, sino de la totalidad de la persecución penal en 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 septiembre de 2004…B. Por otra parte, el denunciante [Nombre01 033] refiere en su escrito que además de todos los ilícitos comentados, [Nombre01 064] también confesó, en su primera declaración indagatoria de fecha 30 de septiembre de 2004 en la causa 04-006835-647-PE, haber recibido regalías recibidas como Directivo del ICE en un viaje realizado a Praga y Suiza, lo cual se tramita en causa independiente No. 04-004671-647-PE… esta causa se inicia en el Ministerio Público antes de que se iniciara la causa 04-006835-647-PE, es por esta razón que estos hechos se encuentran fuera del acuerdo para la aplicación del criterio de oportunidad llevado a cabo en fecha 31 de enero de 2006…” (cfr., folios 27 a 36 frente del expediente Nº 08-000032-0615-PE, seguido contra Nombre08, por incumplimiento de deberes; el destacado no es del original). Como se observa, en la misma solicitud de desestimación que formuló la licenciada Bustillo Piedra a favor del entonces Fiscal General de la República, señor Nombre08, la citada profesional señaló categóricamente que el criterio de oportunidad comprendía no solo los hechos relacionados con la contratación de las 400 mil líneas, sino los demás hechos conocidos en la causa Nº 04-006835-647-PE y que, en principio, enumeró en la solicitud de desestimación, aclarando que eran parte de la misma investigación y que [Nombre01 064] fue indagado en relación con ellos. De los hechos abarcados por la negociación con el imputado colaborador, la licenciada Bustillo Piedra solo excluyó los relacionados con los viajes a Praga y Suiza, mismos que según dijo, se investigaban en una causa independiente. Ahora, este tribunal también se ha dado a la tarea de examinar tanto la solicitud de aplicación del criterio de oportunidad como la resolución que lo autorizó, determinando lo siguiente: a.- las retribuciones económicas entregadas por [Nombre01 046] a [Nombre01 064] como reconocimiento por las gestiones de pago que el imputado colaborador efectuó ante [Nombre01 091], sí están contempladas en la negociación (f. 17 a 18, 65 a 67 frente, puntos identificados con los números 80 a 85, legajo de solicitud de criterio de oportunidad); b.- los fondos trasladados a [Nombre01 064] y que se relacionan con los contratos Nº 424 H 39552, 424 Nombre21 44031 y 424 H 39562 (contratos que cita el denunciante [Nombre 033] de folios 6 a 8 frente del expediente Nº 08-000032-0615-PE), sí están vinculados con el tema de las 400.000 líneas de telefonía móvil GSM, pues a tenor de lo expuesto en la sentencia recurrida, esos contratos fueron únicamente mamparas empleadas para recibir los fondos que posteriormente fueron entregados a varios funcionarios públicos con ocasión del tema ya dicho. En ese tanto, son sumas que están comprendidas dentro de los alcances del criterio de oportunidad (cfr. punto 97.- y siguientes, tanto de la solicitud como de la resolución que autorizó la aplicación de criterio y en los cuales se alude a la entrega a [Nombre01 064] de $2.560.253,32 con ocasión del contrato de las 400.000 líneas, folios 20 a 28 y 70 a 82 frente del legajo). c.- De las retribuciones económicas asociadas con el proyecto La Joya y las empresas [Nombre01 083]-[Nombre01 270], Nombre02 como del viaje a Brasil, no hay ninguna referencia en el convenio de aplicación del criterio de oportunidad. d.- La aceptación por parte de [Nombre 064], de una retribución económica procedente de [Nombre 085] . no se menciona ni en la denuncia formulada por [Nombre 033] (expediente Nº 08-000032-0615-PE), ni en la solicitud de aplicación del criterio, o en la resolución que autorizó este. De todo lo antes dicho, se extraen varias conclusiones:

• 1)Al momento en que se negoció el criterio de oportunidad, en la presente causa había indicios para atribuir a [Nombre01 064] hechos delictivos distintos a los relacionados con el contrato de las 400.000 líneas móviles GSM y que tenían que ver con la recepción por parte suya de varias retribuciones económicas procedentes de distintas personas -físicas y jurídicas-, a saber: a) sumas entregadas, al parecer, por [Nombre01 280], por la adjudicación del proyecto hidroeléctrico La Joya; b) sumas entregadas por las empresas [Nombre01 083]-[Nombre01 270]; c) fondos trasladados por [Nombre02 085].; d) un viaje a Brasil costeado por la empresa [Nombre 091]; y, finalmente, e) dineros entregados por [Nombre01 046], al parecer como recompensa por haber intercedido ante [Nombre01 091] para que le pagasen -a [Nombre01 046]- lo que le adeudaban.
• 2)En tanto las retribuciones mencionadas en el punto e) citado sí fueron contempladas en la solicitud del criterio y la resolución que lo autorizó, las retribuciones económicas relacionadas con el proyecto hidroeléctrico La Joya, las procedentes de las empresas [Nombre02 083]-[Nombre01 270] y el viaje a Brasil, por una razón que se desconoce no fueron incluidas, esto a pesar de que eran parte del convenio, según reconoció la licenciada Bustillo Piedra, en el expediente Nº 08-000032-0615-PE.
• 3)Si bien la dádiva entregada por la empresa [Nombre 085]. no fue contemplada en la solicitud de aplicación del criterio de oportunidad y tampoco fue mencionada por la licenciada Bustillo Piedra al solicitar la desestimación de la causa seguida contra el señor Nombre08 (lo que es comprensible, porque [Nombre01 033] tampoco la incluyó en su denuncia), al momento de la negociación del criterio de oportunidad había elementos que daban noticia de su existencia.
• 4)Tratándose de todas esas dádivas -incluida la procedente de [Nombre 085].- el Ministerio Público no efectuó investigación alguna.
• 5)Hay una inconsistencia insalvable entre lo expuesto por la licenciada Maribel Bustillo Piedra en el expediente Nº 08-000032-0615-PE referido y lo indicado tanto en la solicitud del criterio de oportunidad como en la resolución que lo aprobó. Una inconsistencia que solo se puede explicar de dos formas: i) La licenciada Bustillo Piedra habría faltado a la verdad en el expediente Nº 08-000032-0615-PE al solicitar la desestimación de la denuncia formulada contra el entonces Fiscal General de la República; o ii) la licenciada Bustillo Piedra dijo la verdad y, por tanto, hay que concluir que si bien algunos de los hechos que en principio le eran imputables a [Nombre 064] (las dádivas procedentes de Bolaños Alpízar, de las empresas [Nombre 083]-[Nombre01 270] y el viaje a Brasil), no obstante haber sido considerados al negociar el criterio de oportunidad, por razones que se desconocen no fueron contemplados ni incluidos en la solicitud de aplicación de este. Es decir, en relación con esos hechos se negoció un criterio de oportunidad “de hecho”, ayuno de control jurisdiccional. Para los suscritos, de ambas alternativas, la segunda es la que se estima razonable, no solo porque en la solicitud de desestimación que formuló la licenciada Bustillo Piedra ella recomendó a la autoridad jurisdiccional examinar los documentos relacionados con el criterio (lo que demuestra que actuó con transparencia), sino porque ninguna de las dádivas antes referidas ha sido objeto de investigación y persecución penal. Acudiendo a este mismo argumento (la ausencia de investigación y procesamiento), es factible concluir que también la aceptación por parte de [Nombre01 064] de la dádiva que le fue entregada por la empresa [Nombre 085]., fue una de las conductas negociadas sin cumplir con las formalidades legales previstas. Si bien esta no fue descrita en la solicitud de desestimación hecha por la licenciada Bustillo Piedra, como tampoco en la solicitud de aplicación del criterio de oportunidad o la resolución que lo aprobó, se trata de un hecho al que se le ha dispensado el mismo trato que a las retribuciones económicas descritas atrás y que según la fiscal tantas veces mencionada, están comprendidas en el criterio de oportunidad. En este punto y con independencia de las consecuencias que deriven de lo antes expuesto, para esta cámara es necesario subrayar los errores que han sido cometidos, no solo por el órgano requirente (que -quizás por descuido- omitió informar al órgano jurisdiccional sobre algunos de los hechos de cuya persecución penal prescindió al negociar un criterio de oportunidad con [Nombre01 064] ), sino también por el juez penal que resolvió la solicitud de desestimación formulada en el expediente Nº 08-000032-0615-PE citado, ya que como mínimo para acoger esta, debió comprobar lo expuesto por la licenciada Bustillo Piedra, tal y como esta misma profesional lo pidió al formular la solicitud de desestimación. La simple lectura de la solicitud de aplicación del criterio de oportunidad y de la resolución que lo autorizó, hubiese bastado para concluir que algunas de las retribuciones económicas recibidas por [Nombre02 064] , ajenas al tema de las 400.000 líneas, no estaban contempladas (al menos no formal y expresamente) en la negociación que se efectuó en este asunto. Es importante acotar que el vicio que interesa, entiéndase, el que se dio en este proceso, tampoco fue corregido por el órgano requirente a pesar de que se contó con esa posibilidad, sea cuando el imputado [Nombre01 033] denunció penalmente a don Nombre08 por incumplimiento de deberes, el 1 de julio de 2008 (f. 1, expediente Nº 08-000032-0615-PE), o bien en el debate, cuando se cuestionó el tema por parte de la defensa (cfr. folios 13.676 a 13.705 vuelto, tomo XXVIII). El voto de mayoría afirma que los hechos sometidos al criterio de oportunidad son únicamente los relacionados con la adjudicación de las 400 mil líneas de telefonía móvil, pues solo estos están comprendidos en el fundamento fáctico de su solicitud de aplicación y en la resolución que lo aprobó, de ahí que no llevan razón los defensores al afirmar que se engañó a la jueza penal para favorecer a [Nombre01 064], garantizándole impunidad por delitos no comprendidos en la gestión (f. 16.079 frente, tomo XXXIII). No se comparte este criterio. Como ya se explicó, es evidente la discrepancia que hay entre lo planteado en la solicitud de desestimación formulada en el expediente Nº 08-000032-0615-PE y lo que se contempló en la solicitud de aplicación del criterio de oportunidad en esta causa, sin que para establecer cuáles fueron los alcances del acuerdo, sea plausible atenerse solo a lo indicado en la segunda, pues el Ministerio Público, además de ser uno solo, fue el que a través de uno de sus representantes admitió y aseguró de manera categórica que una serie de hechos que en principio eran atribuibles al imputado colaborador no habían sido investigados porque estaban comprendidos en la negociación. Incluso en el debate, [Nombre01 064], que se negó a rendir declaración en cuanto a todos los temas ya referidos, a saber, las ventajas económicas procedentes de [Nombre01 083], [Nombre01 270], [Nombre 085] y la vinculada con el proyecto denominado La Joya (cfr. folios 14.975 y 14.976 frente, tomo XXXI), se negó también a indicar si algunos de esos hechos estaban comprendidos por el criterio de oportunidad (f. 14.995, primera línea). Para los suscritos, la tesis del voto de mayoría, en el sentido de que lo trascendente es lo expuesto en el acuerdo y no lo que haya sucedido al margen de él, supondría admitir que el Ministerio Público puede manejar un doble discurso en materia de negociaciones, uno del que se deja constancia dentro del proceso y con base en el cual se examina el cumplimiento de los requisitos legales para la aplicación de la figura jurídica, y otro ajeno al control jurisdiccional, donde sencillamente se puede prescindir de perseguir ciertos hechos a cambio de colaboración. Se trata de una postura que es inadmisible en términos constitucionales, pues -como ya se explicó- en razón del principio de legalidad que rige nuestro sistema, el Ministerio Público está obligado a ejercer la acción penal, deber que solo puede ser excepcionado en los casos señalados taxativamente por el legislador y bajo control jurisdiccional. Y este control solo se puede efectuar cuando el órgano requirente, al solicitar la aplicación de un criterio de oportunidad, de forma objetiva y transparente contempla todos los hechos comprendidos en el convenio, sin omitir información medular. Solamente Nombre02 la autoridad jurisdiccional puede determinar si la conducta del imputado colaborador, de cuya persecución penal se prescinde, es menos reprochable que la de los imputados que son afectados con el criterio. Se trata de una cuestión que adquiere mayor importancia en ordenamientos jurídicos como el nuestro, donde la conducta criminal del colaborador cuya persecución se prescinde no necesariamente es parte del hecho cuya continuación evita o cuya persecución penal facilita (así, Nombre54. “El testigo de la corona”. En: Derecho Procesal Penal Costarricense. San José, Asociación de Ciencias Penales de Costa Rica, 2007, pp. 592 y 599. En igual sentido, Sala Tercera, resolución Nº 2001-0737). Y es que si, con ocasión del criterio de oportunidad, se puede garantizar al colaborador la impunidad por hechos distintos a los que son investigados y resueltos con su ayuda (en este caso, los relacionados con las 400.000 líneas y las dádivas que [Nombre01 046] le entregó como agradecimiento por sus gestiones de cobro ante [Nombre02 091]), es notoria la importancia que tiene que el Ministerio Público, al solicitar la aplicación del instituto jurídico, no omita ningún detalle sobre todas las conductas que se dejarán de investigar y perseguir, no limitándose a la descripción de aquellas cuya persecución penal facilita el denominado testigo de la corona , pues será sobre el conjunto de hechos que deberá hacerse la valoración o comparación de reproches. En resumen, si el acuerdo comprende, tal y como sucedió en este caso, conductas del colaborador que no son parte del hecho investigado, la solicitud de aplicación de un criterio de oportunidad debe comprenderlas, ya que de lo contrario, el órgano jurisdiccional carece de la información necesaria para controlar si se justifica aplicar el instituto jurídico mencionado -que tiene clara connotaciones utilitaristas- en detrimento del principio de legalidad y obligatoriedad en el ejercicio de la acción penal. Por todo lo anterior, esta cámara entiende que, al solicitar la aplicación del criterio de oportunidad, el órgano requirente tenía el deber de exponer todos los hechos involucrados en el pacto, sea que estos tuviesen relación con el hecho investigado o que fuesen distintos e independientes. Si estaban comprendidos por el acuerdo y se pretendía prescindir de su persecución penal debían ser descritos, lo anterior porque el control jurisdiccional se da sobre el acuerdo y no, como podrían interpretar algunos, sobre una parte de él, esto es, la que está relacionada con una investigación particular, posición que -se reitera- abriría la puerta para que el órgano requirente disponga de forma arbitraria del ejercicio de la acción penal, haciendo por un lado, dentro del proceso, negociaciones que sean favorables a sus intereses y en las cuales se satisfagan los requerimientos de una menor reprochabilidad o culpabilidad del colaborador y, por otro lado, al margen del ordenamiento jurídico, otros convenios, exentos de cualquier control jurisdiccional. Según las licenciadas Criss González Ugalde y Maribel Bustillo Piedra (f. 171.400 y 171.401 frente, tomo XXXVIII), no se puede aseverar que el órgano requirente ocultó información al juez penal pues si bien el trámite del criterio se realizó en un legajo aparte, en la solicitud se mencionó la causa en que aquel se requería (a saber, la N° 04-6835-647-PE). Es decir, según dichas profesionales, bastaba con que el juez que debía resolver sobre la solicitud de aplicación del criterio se impusiera del contenido de la investigación para descubrir que [Nombre01 064] había recibido otras retribuciones económicas. Tal razonamiento de las licenciadas González y Bustillo es erróneo, ya que según el art. 22 del C.P.P., es el Ministerio Público el que debe decidir si prescinde de la persecución penal de forma total o parcial, o si limita esta a una o varias infracciones. Es decir, el examen que debe hacer el juez penal Nombre11 deberá partir de los límites que establece aquel órgano. Tan es Nombre02 que, incluso asumiendo hipotéticamente que el tribunal detectó que en la causa se ventilaban hechos adicionales a los contemplados en la solicitud, esto no tenía ninguna importancia, ya que de conformidad con las normas que regulan la materia, bien se podía entender que en relación con aquellos la persecución penal se mantenía vigente, cosa que al día de hoy se sabe no sucedió en este caso, no solo por las afirmaciones que hizo la licenciada Bustillo Piedra en el expediente Nº 08-000032-0615-PE, sino también porque a pesar del transcurso del tiempo, no se han investigado y perseguido la aceptación hecha por [Nombre01 064], de una serie de ventajas de contenido patrimonial que le fueron presentadas al margen de los hechos sometidos a juzgamiento en este asunto. Esto confirma lo que se ha venido planteando, en el sentido de que el órgano requirente está obligado a actuar con extremas transparencia, objetividad, lealtad y rigurosidad, reflejando en el convenido TODOS los hechos sometidos a negociación y no solo aquellos que le parecen oportunos. Finalmente, no se puede dejar de lado la situación del mismo [Nombre01 064], ya que si este prestó colaboración fue porque el órgano requirente se comprometió a prescindir de la persecución penal de una serie de conductas, siendo inadmisible avalar prácticas que hagan dudar de los alcances del acuerdo, impidiéndole al mismo imputado colaborador, en caso de ser necesario, demandar el cumplimiento de lo pactado.
• 3)Inclusión hipotética de las conductas omitidas por el órgano requirente al solicitar el criterio de oportunidad y nueva valoración acerca del reproche que cabe formular en cuanto a las conductas imputadas a [Nombre01 064], en comparación con las de otros imputados. Ponderación de los argumentos esgrimidos por el tribunal de juicio en cuanto al tema en particular. La resolución que autorizó aplicar el criterio de oportunidad a favor de [Nombre01 064] no solo carece de fundamentación, sino que, además, se adoptó sin contar con toda la información necesaria para tales efectos, ya que el Ministerio Público omitió incluir en la solicitud algunos de los hechos cuya persecución penal había acordado (al parecer “de hecho”) prescindir. Este vicio adquiere relevancia en la medida en que, con la inclusión de esos hechos, el órgano jurisdiccional hubiese podido concluir que la conducta del colaborador no era menos reprochable que la de aquellos imputados en contra de los cuales se negoció el mencionado instituto jurídico. Nombre02 las cosas, para determinar la esencialidad del yerro, es necesario proceder a hacer ese ejercicio de inclusión hipotética, no sin antes señalar algunos extremos: 1) Como ya se indicó antes, tratándose de [Nombre01 041], [Nombre01 078] y [Nombre01 046], ni el órgano requirente al solicitar la aplicación del criterio de oportunidad, ni la jueza penal que resolvió sobre esa solicitud, se pronunciaron sobre el reproche que cabía hacer a estos en comparación con el que correspondía formular a [Nombre01 064]. Es un tema que simplemente se pasó por alto, contrario a lo que sucedió con [Nombre 033], ya que al solicitar la aplicación del criterio de oportunidad, el órgano requirente aludió a él, explicando los motivos por los cuales consideraba que le correspondía un reproche mayor que a [Nombre01 064], motivos que, como se explicó supra, el órgano jurisdiccional se limitó a transcribir, sin hacer ponderación o verificación algunas. 2) El examen acerca del reproche que cabía hacer a los imputados se hizo por primera vez en la sentencia recurrida, considerándose al respecto únicamente los hechos que estaban descritos en la documentación elaborada con ocasión del convenio efectuado, dejando de lado aquellas conductas de [Nombre01 064] en relación con las cuales se negoció y acordó (“de hecho” y no de derecho) prescindir de la persecución penal. 3) El análisis que ahora debe hacer esta cámara se debe retrotraer al momento en que se autorizó el criterio de oportunidad, considerando a partir de una visión ex ante, tal y como lo indica el artículo 22 inciso b) del código de rito, las conductas cuya persecución penal se buscaba facilitar con el aporte del colaborador, no pudiendo incluirse conductas distintas a estas (aunque, a partir de un análisis ex post, el a quo las haya tenido por demostradas apoyándose en ese aporte y le hayan sido útiles para argumentar que el reproche que cabe hacer a algunos imputados es mayor que el que corresponde a [Nombre01 064]. Nombre02 p. ej., el tribunal de mérito afirmó que la conducta de [Nombre02 041] es más reprochable que la del colaborador pues aquel cursó promesas de dádivas a varios funcionarios públicos y no solo a [Nombre 064], extremo en relación con el cual [Nombre01 064] no podía hacer algún aporte, ya que negó saber si además de su persona y [Nombre01 033], había otros funcionarios públicos involucrados. 4) La comparación, que se debe retrotraer al momento en que tuvo lugar el convenio, se debe efectuar entre la conducta o conductas de [Nombre01 064] cuya persecución penal se prescinde, y aquellas de los imputados cuya persecución penal se facilita con la aplicación del instituto jurídico, no siendo legítimo considerar para establecer la magnitud del reproche, las conductas de otros imputados que el tribunal sentenciador tuvo por demostradas apoyándose en el testimonio de [Nombre01 064] pero en relación con quienes no se negoció el criterio de oportunidad (este es el caso, p. ej., de [Nombre01 001] , de [Nombre01 022], o de [Nombre01 028]). Es decir, el estudio se debe circunscribir al reproche que cabe formular a los actos de [Nombre01 064] en comparación con el que cabe a [Nombre01 078], a [Nombre 033], a [Nombre02 046] y a [Nombre01 041], pues fue solo en relación con estos justiciables que el órgano requirente solicitó aplicar el criterio de oportunidad. En este punto, es importante subrayar que esta cámara no está poniendo en entredicho que la declaración de [Nombre01 064], una vez incorporada al debate, se ponderase como una probanza más, incluso en perjuicio de algunos imputados en contra de los cuales no se negoció el criterio de oportunidad (en este mismo sentido, léase la sentencia de la Sala Tercera N° 1030-2014, de las 10:00 horas del 27 de junio de 2014), sin embargo, esto no significa, ni de lejos, que para examinar el grado de la reprochabilidad, en lo que al artículo 22 inciso b) citado respecta, esa circunstancia deba ser ponderada, ya que al momento en que se realizó la negociación, que es justamente al que nos debemos retrotraer, no se contemplaba la causación de tales efectos y tan es Nombre02 que la negociación se dio, se reitera, solo en perjuicio de imputados específicos ([Nombre01 033] , [Nombre01 046], [Nombre01 041] y [Nombre01 078] ). Aclarado lo anterior, pasamos al fondo del asunto, indicando que, por las razones que de seguido se expondrán, para este tribunal de apelación de sentencia las conductas imputadas a [Nombre01 064] no son, ni eran al momento de la negociación, menos reprochables que aquellas cuya persecución penal facilitaba con su declaración, y -en ese tanto- el criterio de oportunidad también resulta ilegal por este motivo. Al suscribir el convenio, había elementos para sospechar que [Nombre01 064] era un funcionario público proclive a la recepción de ventajas económicas irregulares. Según se afirmó en los hechos demostrados números 113 y 114 (f. 15.450 frente), de los dos millones quinientos sesenta mil doscientos cincuenta y tres dólares con treinta y dos centavos ($2.560.253,32) que recibió con ocasión del contrato de las 400.000 líneas, él trasladó a [Nombre01 033] la suma de quinientos ochenta y nueve mil quinientos sesenta y tres dólares ($589.563.00), más la suma de doscientos treinta y un mil dólares ($231.000) entregados en efectivo. Es decir, [Nombre01 064] se apropió de $1.739.690,32, convirtiéndose Nombre02 en el funcionario público que obtuvo las mayores ventajas económicas de la trama criminal asociada con el tema de las 400.000 líneas, conclusión que no se modifica por el hecho de que, posteriormente, al negociar con el Ministerio Público un procedimiento abreviado y luego un criterio de oportunidad, estuviese dispuesto a entregar a favor del Estado importantes sumas de dinero y algunos bienes (así, cfr. f. 3 y 4 de la prueba N° 308 y f. 3, prueba N° 776). Además de lo ya dicho, [Nombre01 064], antes de los hechos aquí investigados, había recibido $63.083,59 que le fueron entregados por [Nombre 046]; $110.207,00 pagados por las empresas [Nombre 083].- [Nombre 270]., $29.833,95 procedentes de la empresa [Nombre 085]. y, finalmente, un aproximado de $56.000 relacionados con el proyecto La Joya, lo anterior sin mencionar el viaje a Brasil que, según denunció [Nombre01 033], pagó [Nombre01 091]. En síntesis, para cuando se negoció y solicitó aplicar el criterio de oportunidad, había elementos para pensar razonablemente que [Nombre01 064] había cometido varios hechos criminales, unos relacionados con el tema de las 400.000 líneas y otros tantos ajenos a este, todos -al parecer- de una naturaleza similar: recepción de dádivas en su condición de funcionario público. No obstante ello, se optó por garantizar su impunidad para que, a cambio, declarase en contra de [Nombre01 033], [Nombre01 041], [Nombre01 046] y [Nombre01 078] (este último no fue sometido a este proceso penal). Tratándose de [Nombre01 041], el colaborador estaba dispuesto a declarar que este le giró una promesa de dádiva relacionada con el contrato de las 400.000 líneas y que, luego, le trasladó los fondos prometidos mediante [Nombre02 058]. En tanto que la colaboración de [Nombre 064], al momento de pactar el criterio de oportunidad y en lo que a [Nombre01 041] respecta, permitía demostrar un único hecho , a saber, que este le giró una oferta de retribución económica anterior al contrato de las 400.000 líneas, la impunidad que se garantizó a aquel era por conductas en extremo censurables por su cantidad (hablamos de reiteradas aceptaciones de dádivas, lo que, como mínimo, demuestra que para [Nombre01 064] esto era un hábito); por las sumas involucradas ([Nombre01 064] fue el funcionario público que más dinero recibió con ocasión del contrato de las 400.000 líneas, incluso restando la parte que le entregó a [Nombre01 033], y recibió también cuantiosas ganancias de otras personas físicas y jurídicas); y finalmente, por su condición de miembro director del ICE, cargo del cual se valió para recibir todas las retribuciones económicas descritas. Sabemos que el legislador sanciona al corruptor, al menos en ciertos casos, con la misma pena que corresponde al funcionario público corrupto, sin embargo, en materia de reproche, o dicho en otras palabras, de la culpabilidad de los involucrados (y que en el caso de [Nombre01 064] se establece de manera hipotética, ya que en cuanto a él no se ha formulado acusación ni celebrado juicio algunos), es imposible desconocer cómo este, a pesar de tener la obligación de desempeñar su cargo con probidad, abusó de su posición de poder como miembro del consejo director del ICE, para obtener beneficios económicos a costa de distintos proveedores de la citada institución autónoma. Frente a esto, tenemos a [Nombre01 041], un particular que, si nos atenemos a lo expuesto por [Nombre02 064], le ofreció una dádiva a cambio de que ayudarse a [Nombre01 091] en tres áreas específicas (migración a GSM, uso de licitaciones y voto favorable en la adjudicación de las 400.000 líneas), lo que de paso le permitiría a él (a [Nombre01 041]) obtener una ganancia. Si bien tanto pagar como recibir son conductas censurables, a [Nombre01 064] no le cabe un reproche menor que a [Nombre01 041] y, en ese tanto, no es legítimo otorgar ventajas procesales al primero en aras de conseguir la condena del segundo, pues como se indicó, [Nombre01 064] era un funcionario público que no solo estaba involucrado en los hechos relacionados con las 400.000 líneas, sino en otros tantos, lo que demuestra que la recepción de dádivas era para él una costumbre, siendo [Nombre01 041] tan solo uno de los sujetos que, al parecer, le ofreció una de esas retribuciones económicas. Esta cámara no desconoce que la declaración de [Nombre01 064] resultó esencial para demostrar que [Nombre01 041] hizo ofrecimientos de dádivas a otros funcionarios públicos, lo que sin duda incrementa el reproche, sin embargo, cabe reiterar, este es un resultado no esperado ni previsto cuando se negoció el criterio de oportunidad, al punto que el mismo [Nombre01 064] manifestó no saber si otros funcionarios estaban en su misma situación (cfr. p. ej., declaración de [Nombre02 064] , f. 14.957 frente, últimas líneas, tomo XXXI). Es decir, al momento en que se dio el acuerdo, no se pretendía que [Nombre01 064] hiciera algún aporte para demostrar la culpabilidad de otros funcionarios públicos más allá de [Nombre02 033] y la prueba de esto es que el instituto jurídico se solicitó solo en perjuicio de [Nombre01 078], [Nombre01 046], [Nombre01 041] y [Nombre01 033]. Por ello, mal haría este tribunal si se valiese de esa consecuencia, hasta cierto punto imprevista, para tratar de dar soporte -de manera retroactiva, además- a una resolución que carece de todo fundamento, no solo porque efectivamente el órgano jurisdiccional no hizo ningún análisis, sino también porque, de haberlo hecho considerando toda la información que sabemos fue omitida, hubiese concluido que a [Nombre01 064] no le correspondía un menor reproche. La situación es similar tratándose del imputado [Nombre01 033]. En lo que al criterio de oportunidad respecta, a este se le imputó haber instigado a [Nombre01 064] para aceptar la promesa de dádiva que le fue cursada por [Nombre01 041] y [Nombre01 078] y, luego, haber recibido el dinero que le trasladó el imputado colaborador, con el propósito de cumplir lo prometido. Según se tuvo por demostrado (cfr. hechos números 113 y 114, f. 15.450 frente), de los dos millones quinientos sesenta mil doscientos cincuenta y tres dólares con treinta y dos centavos ($2.560.253,32) que recibió [Nombre 064] , este le entregó a [Nombre 033] la suma de quinientos ochenta y nueve mil quinientos sesenta y tres dólares ($589.563.00), más la suma de doscientos treinta y un mil dólares ($231.000) entregados en efectivo. Frente a esta conducta aislada de [Nombre01 033], se tienen las conductas reiteradas de [Nombre01 064] que fueron señaladas atrás, a saber, la aceptación de varias retribuciones económicas pagadas por empresas y personas particulares con las que tenía contacto en razón de su cargo en el ICE (a saber, $1.739.690,32 procedentes de [Nombre01 091] con ocasión del contrato de las 400.000 líneas; $63.083,59 que le fueron entregados por [Nombre 046]; $110.207,00 pagados por las empresas [Nombre 083].-[Nombre01 270]., $29.833,95 procedentes de [Nombre01 085]. y finalmente, un aproximado de $56.000, relacionados con el proyecto hidroeléctrico La Joya, Nombre02 como el viaje a Brasil que también se mencionó antes). Nombre02 las cosas, la diferencia entre el cargo que ocupaba [Nombre01 033] frente al desempeñado por [Nombre01 064], es el único argumento que se invoca en el fallo de mérito para afirmar que la conducta imputada al primero es más reprochable que todas las ejecutadas por el segundo, lo cual es insostenible, pues si bien es cierto que las condiciones personales del sujeto activo que son determinantes para la comisión del delito deben ser consideradas, esto no Nombre05 ignorar la gravedad de la conducta efectivamente realizada y, en el caso particular de las 400.000 líneas, la actuación de [Nombre01 033] no fue tan decisiva, al punto que el mismo [Nombre01 064] no tuvo problemas para desconocer la repartición de las ganancias irregulares dispuesta por el primero (donde -según Nombre02 lo afirmó- [Nombre01 033] obtendría 60% y él un 40%). Por otra parte, el hecho de que [Nombre01 033] fuese su superior jerárquico en casa presidencial, y que -además- fuese el Consejo de Gobierno de la administración [Nombre02 033] el que lo nombró como miembro del Consejo Director del ICE, a efectos de determinar el grado de reprochabilidad de ambas conductas no tienen mayor importancia, ya que, a pesar de esa relación de jerarquía, como se explicó, [Nombre01 064] no habría tenido ningún inconveniente para negarse a entregar a [Nombre01 033] el porcentaje de las ganancias que habían acordado, al considerarlo injusto. De hecho, en el debate, no obstante afirmar que la diferencia en los porcentajes de distribución de la ganancia se justificaba “… desde el punto de vista de los partícipes porque don [Nombre01 033] era el [...]”, al ser interrogado, reconoció haber afirmado en declaraciones anteriores que esos porcentajes eran injustos y desproporcionados, ya que fue él quien asumió la totalidad del riesgo, en tanto, “… los dineros llegaban a las cuentas que yo suministré y yo me entendí con [Nombre02 091] para proteger al [...], Nombre56 sólo me entendí con gente alta de [Nombre01 091] . Del dinero recibido yo tenía la responsabilidad de darle a don [Nombre01 033] los dineros que a él le correspondieran...” (F. 14.991 frente de la sentencia, tomo XXXI). Es decir, partiendo (conforme a un análisis ex ante) de los hechos que sustentaban la solicitud fiscal de homologación del criterio de oportunidad, Nombre02 como del mismo relato que brindó [Nombre01 064], él no era una persona que, de forma esporádica y por azares del destino, recibió una promesa de dádiva y, ante ello, buscó el apoyo del entonces [...] Nombre57 aceptarla. Al contrario, era un funcionario público avezado en esos temas, que sabía cómo actuar, y que si buscó a [Nombre01 033] fue por entender que el acto futuro que se esperaba de él podía requerir de alguien más influyente. Tan claro es el tema, que no obstante ser [Nombre01 033] el [...] Nombre25 superior jerárquico de [Nombre01 064], este no tuvo inconveniente en abandonar el compromiso asumido con él y entregarle una suma menor de dinero, al considerar que los porcentajes de distribución pactados eran injustos. Es decir, con el propósito de conservar la mayor parte de la ganancia ilícita, [Nombre01 064] (según lo declaró) dejó de lado el cargo de [Nombre01 033], lo que permite concluir que la relación de jerarquía, contrario a lo esbozado por el órgano requirente al solicitar el criterio, no es un elemento que, al menos a la luz del caso concreto, se pueda considerar determinante a efectos de estimar que la conducta de [Nombre02 033] era más reprochable. Este tribunal de apelación no desconoce que (según se deriva del dicho de [Nombre01 064]) al entonces [...] del país le era exigible censurar a su subalterno y denunciar lo ocurrido. Sin embargo, el que en lugar de esto lo respaldase de una manera que solo él podía, no permite afirmar que los actos de [Nombre01 064] hayan sido menos reprochables, al punto de justificar el costo de la impunidad que se garantiza al colaborador con el único propósito de obtener la condena de una persona que para entonces ostentaba un rango superior. Este parece haber sido el único propósito que movió al órgano requirente pues, según se ha venido señalando, no obstante haber negociado el criterio de oportunidad para obtener información contra [Nombre01 046], [Nombre01 041] y [Nombre02 078], en la solicitud que formuló el Ministerio Público ni siquiera se intentó explicar por qué se entiende que a estos les corresponde un reproche mayor que a [Nombre 064] , lo que sí se intentó justificar tratándose de [Nombre01 033], aunque con poco éxito, pues el único argumento que se expuso es el ya reseñado, a saber, la consideración de que [Nombre01 033] era [...] y superior jerárquico de [Nombre01 064] , sin reparar en varias cuestiones que ya han sido mencionadas, específicamente, que [Nombre01 064] también era funcionario público, que había hecho de la recepción de dádivas un hábito; que frente a las múltiples conductas criminales que podían atribuírsele, a [Nombre01 033] solo se le imputaba el haber sido partícipe de un delito en el que [Nombre01 064] figuraba como autor y, finalmente, que la retribución económica que obtuvo el colaborador con ocasión de las 400.000 líneas fue la más importante de todas, siendo que las recibidas por otros hechos también fueron cuantiosas. Por todo esto, no se puede estimar que la conducta de instigación atribuida a [Nombre01 033], cuya persecución penal se facilitaba con la declaración de [Nombre01 064], fuese más reprochable que las atribuidas a este. De igual forma, la aseveración contenida en la sentencia impugnada, en el sentido de que a [Nombre01 064] le cabe un reproche menor porque ha estado anuente a colaborar con la administración de justicia es en extremo cuestionable, ya que, en primer término, si partimos de la tesis asumida por el tribunal de mérito, en el sentido de que la versión que rindió tras negociar con el Ministerio Público es la verdadera, tendríamos que concluir que durante meses, al negar la promesa de dádiva, pretendió confundir a las autoridades respectivas, con el único propósito de evadir su responsabilidad. De igual manera, Nombre02 como no se puede derivar de esa colaboración, la conclusión de que [Nombre01 064] está arrepentido, pues es clarísimo que su ayuda no ha sido gratuita, del ejercicio del derecho de defensa, que es lo que ha caracterizado a los otros imputados, incluido a [Nombre01 033], no se puede extraer una falta de arrepentimiento por los hechos que, según el tribunal, ha cometido. Finalmente, en lo que a [Nombre01 046] respecta, la situación también es bastante clara. Si bien tanto él como el mismo [Nombre01 064] eran personas con una amplia trayectoria en el sector público, para el momento de los hechos que aquí interesan era el segundo quien se desempeñaba en la función pública. Nombre02 las cosas, se dejaron de investigar y perseguir varios delitos que, al menos en principio, eran imputables a [Nombre01 064] (incluido el relacionado con el contrato de las 400.000 líneas GSM, que supuso para el colaborador una descomunal ganancia), a cambio de facilitar la persecución penal de una persona que antes de los hechos aquí investigados le habría prometido (según el dicho de [Nombre01 064]) una retribución económica a cambio de que le ayudase a cobrar a [Nombre01 091] una suma de dinero que se le adeudaba, propuesta que el funcionario público aceptó y tradujo en acciones de cobro, para después recibir, también sin poner obstáculo alguno, las sumas que le trasladó [Nombre01 046] como muestra de agradecimiento por esa ayuda. Es decir, el órgano requirente estaba dispuesto a garantizar impunidad a un funcionario público que recibió de forma reiterada dádivas, algunas de cuantía sorprendente, a cambio de facilitar la condena de un particular que figuró como corruptor en uno solo de esos hechos, uno anterior y ajeno a la contratación de las 400.000 líneas. En resumen, las conductas del imputado [Nombre01 064] , por reiteradas, por la cuantía de las retribuciones económicas obtenidas y, claro está, por el empleo del cargo para obtener esas ganancias ilícitas, no son menos reprochables que la conducta de [Nombre01 046] que se pretendía demostrar con la declaración del primero y que se circunscribe a un único evento, donde tanto [Nombre01 046] como el mismo [Nombre01 064] habrían tenido participación y habrían obtenido un beneficio patrimonial ilícito. Dicho lo anterior, es importante señalar que el tribunal, en la sentencia, no obstante insistir en que carece de competencia para pronunciarse sobre los requisitos “sustanciales” que prevé el art. 22 inciso b) del C.P.P., dedicó un acápite a exponer algunas razones por las cuales entiende que el requisito de la menor reprochabilidad sí se cumplió, mismas que se pueden esquematizar de la siguiente manera: i) lo trascendente es que el reproche hecho al colaborador sea menor que el de quienes fueron sometidos a proceso, tema que no tiene que ver con los conceptos de autoría y participación; ii) la reprochabilidad se mide desde la culpabilidad. Se debe tomar en cuenta la culpabilidad en el injusto penal, de conformidad con el artículo 71 del Código Penal. El juicio de reproche Nombre05 la determinación de la conducta típica, antijurídica y culpable ejecutada por el colaborador y la realizada por el acusado, la capacidad de comprensión y actuación conforme a derecho de ambos, el reproche al colaborador y al imputado. Las condiciones personales [art. 71 inciso d) del Código Penal], deben ser consideradas en la medida en que hayan influido en la comisión del delito. Por ende, ningún error cometió la jueza penal al considerar esas condiciones para establecer que correspondía un menor reproche a [Nombre01 064]. No se puede afirmar que tal valoración sea la propia de un derecho penal de autor (como lo considera el voto de minoría del tribunal de juicio), ya que la misma Sala Constitucional ha avalado la consideración de esas circunstancias personales al fijar la pena, siendo que, además, lo que se juzga es una conducta determinada y no lo que se es y, tratándose de delitos relacionados con la función pública, los alcances del cargo ostentado dejan de ser una condición irrelevante para tener relación con la prohibición típica; iii) la comparación es respecto de “los reproches”, no de las conductas o delitos, ni sobre las penas, como tampoco sobre los efectos del beneficio acordado al colaborador. No corresponde examinar el delito o delitos, cuando fueron varios, cometidos por el colaborador o por el imputado. La norma habla de “conducta” y “hecho punible”, con lo cual el análisis, más que sobre delitos y penas, debe ser cualitativo. No basta con conocer los parámetros sancionatorios y establecer los más bajos y los más altos, sino que el examen se debe centrar en los presupuestos del artículo 71 del Código Penal respecto, por un lado, de la conducta señalada y por otro, del hecho punible. Por eso, tampoco basta con comparar en abstracto, otras conductas ilícitas y beneficios económicos que supuestamente recibió [Nombre01 064]; iv) el tribunal de juicio debe controlar la concurrencia de requisitos formales y no de fondo, entiéndase, no puede controlar si la conducta del colaborador es menos reprochable. Aquí se reitera lo dicho antes, a saber, que es la fiscalía la que ex ante debe hacer esa valoración y que el control de dicho mecanismo corresponde al juez de la etapa preparatoria o intermedia, siendo que el tribunal de juicio no puede analizar ese tema antes de dictar la sentencia, ya que esto sería adelantar criterio. Ahora, en el caso concreto, aduce, el tribunal resolvió que el criterio se ajustó a las exigencias formales, con lo cual no se puede afirmar que no hubo pronunciamiento. Además, el órgano competente para controlar la procedencia del instituto lo hizo, por lo que no se puede argumentar que hubo denegación de justicia cuando cada órgano jurisdiccional cumplió con sus tareas, sin excederse en las propias ni arrogarse las que no le corresponden, aunque no sea del agrado de alguna de las partes del proceso; v) la conducta de [Nombre01 064] es menos reprochable que la de [Nombre 041], [Nombre01 033] y [Nombre01 046], cuya persecución facilita. A partir de aquí y siguiendo los enunciados del artículo 71 mencionado, el tribunal de juicio expone los motivos en razón de los cuales califica de “menos reprochable” la conducta de [Nombre01 064], valiéndose de un ejercicio comparativo con cada uno de los imputados en contra de los cuales se solicitó el criterio de oportunidad. Sobre [Nombre 041], el tribunal señala, en cuanto a los aspectos objetivos y subjetivos del hecho punible, que toda esta situación no hubiese ocurrido sin la existencia de una proposición remuneratoria hecha por [Nombre01 041]. Puede haber una persona corruptora sin que haya una persona corrupta, pero a la inversa no, de ahí que desde la perspectiva objetiva la actuación de [Nombre01 041] sea más reprochable que la de [Nombre01 064]. Sobre la importancia de la lesión o del peligro, si bien se reconoce que la conducta de ambos afecta el bien jurídico y el orden social, el desencadenante de los hechos es el plan ideado por [Nombre02 041], dirigido a suscribir contratos de consultoría como mampara para el financiamiento de la operación, con lo cual en la producción del daño social y la lesión al bien jurídico, el mayor aporte fue de [Nombre01 041], quien actuó siguiendo un esquema previamente establecido. Él sabía cómo poner en marcha el plan, podía definir el monto adecuado para hacer la promesa y provocar su aceptación, acciones que revelan que actuó de forma calculada, no Nombre02 [Nombre01 064], quien desconocía toda la maquinación ilícita antes reseñada, al punto de ignorar que hubiese otras personas involucradas, o la magnitud de las propuestas corruptoras de [Nombre01 041], con lo cual también el mayor reproche le cabe a este último. En cuanto a las circunstancias de modo, tiempo y lugar, [Nombre01 041] se comunicó con los demás corruptores para generar una estrategia de financiamiento y para ello se propuso engañar a la corporación [Nombre01 060]. Coordinó aproximaciones con funcionarios públicos, mantuvo reuniones con esos funcionarios -entre ellos [Nombre01 064]- y suministró información a las demás personas corruptoras para que realizaran los pagos. Es decir, [Nombre01 041] venía trabajando en la estructuración y montaje de un plan que le permitía mediante el pago de dádivas a funcionarios públicos, que el ICE adquiriese los productos ofrecidos por [Nombre01 091]. En contraste, la actuación de [Nombre01 064] no solo depende del plan descrito, sino que ocurrió a partir de las reuniones en que ambos participaron, siendo que los pagos que recibió son eslabones singulares dentro de una cadena de eventos que envuelve el comportamiento delictivo del primero. En cuanto a la calidad de los motivos determinantes, la afectación al bien jurídico probidad se dio tanto con los actos de [Nombre01 064] como con los de [Nombre01 041], sin embargo, en tanto el primero buscó procurarse un beneficio patrimonial a título individual, en el caso de [Nombre01 041] la suma fue mayor, pues era él quien disponía, junto con los demás corruptores, los dineros para sus propósitos ilícitos. En cuanto a las demás condiciones personales del sujeto activo o la víctima en la medida en que hayan influido en la comisión del delito, [Nombre01 041] era el gerente general de la empresa [Nombre01 091], de ahí que conocía cómo estaba organizada la corporación, siendo que además había laborado en el ICE y conocía su dinámica. Él se ganó la confianza de la corporación al punto que debía proponer los consultores a contratar y participaba en el trámite de pago de desembolsos a estos. También conocía el ICE y su relación con [Nombre01 091], lo que le proveyó de los mecanismos para identificar a los personajes claves, cómo contactarlos, cómo incidir en sus decisiones para que fuesen favorables a la empresa y cómo obtener el dinero para vencer sus barreras. Por su parte, [Nombre01 064] era solo una de las piezas en esa estrategia delictiva, uno de los funcionarios que debía convencer con su propuesta. Finalmente, en cuanto a la conducta del agente posterior al delito, en tanto que [Nombre01 041] no ha hecho nada por reparar el daño, [Nombre01 064] ha reconocido su indebido proceder y ha devuelto gran parte del dinero recibido, con lo cual la conducta de este es menos reprochable. En el caso de [Nombre02 046], en el fallo se afirma que el reproche que cabe hacer a [Nombre01 064] es menor por cuanto: En cuanto a los aspectos subjetivos y objetivos del hecho punible, [Nombre01 046] tenía una trayectoria pública amplia, mayor que la de [Nombre01 064]. En cuanto a la importancia de la lesión o peligro, si bien [Nombre01 064] era funcionario público y [Nombre01 046] no, la afectación al bien jurídico probidad de mayor entidad es causada por el último, ya que es el promotor de la acción delictiva. En cuanto a las circunstancias de modo, tiempo y lugar, [Nombre01 046] se presentó ante [Nombre01 064] y le solicitó ejercer acciones cobratorias ante [Nombre01 091] para que le pagaran los dineros adeudados al primero. [Nombre01 064] aceptó y actuó en consecuencia, razón por la cual [Nombre01 046] le pagó luego diversas sumas de dinero. Dice el voto de mayoría que fue [Nombre01 046] quien acudió a [Nombre02 064] , quien lo buscó en el ICE a sabiendas de su condición y a sabiendas de que [Nombre01 091] era proveedor del ICE. Con base en el dominio de esos antecedentes, planteó la promesa remuneratoria a [Nombre01 064], lo que abona su mayor reprochabilidad. En lo que a los motivos determinantes respecta, a ambos los movió un interés monetario, sin embargo, es [Nombre01 046] el gestor del mecanismo (la promesa y entrega de una dádiva) que motivó a [Nombre01 064]. Sobre las demás condiciones personales del sujeto activo o de la víctima en la medida en que influyan en la comisión del delito, se aprecia que [Nombre01 046] se valió del conocimiento obtenido en el desempeño en el sector público (ocupó un cargo en el ICE) y de su contacto con personas del medio político nacional, entre ellas [Nombre01 033], para lograr comunicarse con [Nombre01 064]. Finalmente, sobre la conducta posterior al delito por parte del agente, [Nombre01 046] no ha efectuado ninguna acción para reparar el daño, en tanto que [Nombre01 064] sí, entregando dinero y bienes muebles. En el caso de [Nombre01 033], el tribunal indica, en cuanto a los aspectos objetivos y subjetivos del hecho punible, que este imputado ocupó uno de los cargos más relevantes de la función pública, cargo que para la comisión del delito atribuido tiene trascendencia, pues no cualquiera puede ser sujeto activo del delito de cohecho. Además, el ser [...] Nombre58 es una condición personal que solo se relaciona con la tipicidad de la conducta, sino que también tiene que ver con el bien jurídico -la probidad- pues no genera el mismo daño social que un funcionario público del mínimo escalafón sea condenado por este delito a que lo sea quien ocupa la cima de la administración pública. Si bien [Nombre01 064] era también funcionario público, [Nombre01 033] tenía mayor rango y jerarquía y, por ser el [...], Nombre59 era exigible una conducta proba; era de él de quien se esperaba un comportamiento honesto y orientado en exclusiva al cumplimiento del interés público, razón por la cual es mayor el reproche que le cabe. Sobre la importancia de la lesión o peligro, aunque tanto [Nombre01 033] como [Nombre01 064] contribuyeron a provocar la lesión, el aporte más significativo, dice el voto de mayoría, lo hizo [Nombre02 033], ya que al tipificar conductas como el cohecho, el legislador pretendió resguardar la probidad, rectitud, honradez e imparcialidad en el cumplimiento del cargo, de manera que quienes los ocupen de forma remunerada, lo hagan interesados en satisfacer el interés público y no sus propios intereses, menos todavía para enriquecerse indebidamente por ese medio. El [...], Nombre60 tener una alta representatividad popular, goza de una amplia autoridad y se ubica en un plano central, tanto para el control público como para la integración de la nación y la definición de su rumbo. No es solo quien designa el gabinete y lo remueve, es quien lo encabeza y dirige tareas relevantes tanto a nivel nacional como internacional. Y si la cabeza flaquea, el cuerpo tiende a desplomarse. Se concluye que las flaquezas en [Nombre01 033] son las que mayormente contribuyen al daño. Tratándose de las circunstancias de modo, tiempo y lugar , el tribunal de juicio considera que si bien puede pensarse que [Nombre01 064] fue quien contactó a [Nombre02 033] para trasladarle la propuesta de [Nombre01 041], siendo por ello iniciativa del primero el desarrollo del delito, hay que considerar que [Nombre01 064] acudió a [Nombre01 033] por la confianza que existe entre ambos, porque había un apoyo político del uno para el otro, Nombre02 como un nexo laboral y una relación de amistad ([Nombre01 064] era miembro del consejo director del ICE y su designación correspondía al consejo de gobierno presidido por [Nombre01 033], siendo también asesor presidencial). Además, antes de que [Nombre01 064] trasladase a [Nombre01 033] la propuesta descrita, ya este había impulsado a aquel para que participara en una actuación delictiva previa, a saber, cuando le pidió interceder ante [Nombre01 091] para que se honrara el pago de dineros a [Nombre01 046]. Incluso le pidió atender este asunto aprovechando un viaje que [Nombre01 064] haría fuera del país. Así, en lugar de que [Nombre01 033] llamase a cuentas a [Nombre01 064] y le exigiera una conducta proba, lo que hizo fue instarlo a aceptar la propuesta, a pedir un porcentaje mayor e incluso, le propuso la fórmula de distribución del dinero. Es decir, aunque [Nombre01 064] es quien debía cumplir con la propuesta, acudió a [Nombre01 033] para tomar una decisión, pues sabía que no podía decidir por sí solo. Esto revela el papel determinante de [Nombre01 033], al ser él quien determinó a [Nombre01 064]. En cuanto a la calidad de los motivos determinantes, el bien jurídico probidad fue lesionado por ambos justiciables y en ese tanto, el reproche fue semejante. Revelador es el interés económico que demuestra [Nombre02 033], cuando al escuchar a [Nombre01 064], lo primero que hace es preguntar cuánto será el monto a recibir y luego decide la fórmula de distribución, abultada a su favor y es lo que luego, también reflejo de la ambición de [Nombre01 064] , lleva a este a decirle que no está conforme con tal distribución. Sobre las condiciones personales del sujeto activo o de la víctima en la medida en que han influido en la comisión del delito, el tribunal de juicio indica que cuando [Nombre01 033] conoce la propuesta corruptora es la máxima autoridad del país y uno de los pocos funcionarios a los que la mayoría de la población ha elegido con su voto, por lo que era esperable de su parte mayor celo, Nombre02 como un inagotable esfuerzo por ser correcto en el ejercicio de su función. A pesar de esto, optó por lo contrario, impulsó la aceptación de la propuesta corruptora y se benefició con las dádivas entregadas. Quien declinó su deber de probidad, apunta el a quo , no fue un funcionario público cualquiera, sino el de mayor jerarquía, incluso determinando a [Nombre01 064] para aceptar la propuesta. Del mismo modo, [Nombre01 064] no acudió a cualquier persona para informarle de la propuesta, sino al [...] Nombre61 todos los costarricenses y jerarca de la administración, por lo demás una figura influyente en [Nombre01 064], no solo por su amistad sino por su vínculo funcional. En ese tanto, tenemos por un lado a [Nombre01 064] , directivo de una institución autónoma y asesor presidencial, y por otro a [Nombre01 033] , jerarca máximo con poder de decisión en los nombramientos que ostentaba aquel y al que le era exigible en mayor medida, comportarse conforme a derecho, como mayor es el reproche por no hacerlo. En cuanto a la conducta del agente con posterioridad al delito, [Nombre01 033] no ha realizado acción alguna para reducir el impacto del daño causado con su actuación, en tanto que [Nombre01 064] aceptó su responsabilidad, estuvo dispuesto a pactar un abreviado y descontar una pena privativa de libertad para lo cual no aplicaba como abono el arresto domiciliario. Esta opción no prosperó pues quienes figuraron como querellantes en este proceso se opusieron, siendo que la fiscalía optó por el criterio de oportunidad. [Nombre01 064], además, se presentó al debate y aceptó su comportamiento, siendo que además ha entregado parte del dinero recibido y dos vehículos. Si bien la defensa ha cuestionado que no ha devuelto la totalidad del dinero y que los vehículos son antiguos, lo cierto es que, si se parte de ese parámetro, habría que concluir que [Nombre01 033] no ha devuelto nada. El tribunal de juicio finaliza su exposición señalando que los anteriores razonamientos explican por qué, en su momento, estimó que no podía resolver sobre el tema de la mayor o menor reprochabilidad, a saber, porque compete a otro tribunal y porque se podía comprometer la imparcialidad al hacer ese análisis por más “abstracto” que fuera (folios 15.395 a 15.415 frente del tomo XXXI). Hasta aquí la argumentación del tribunal. Para quienes suscriben esta resolución, los anteriores razonamientos son erróneos no solo por lo dicho supra, al examinar el tema del reproche que cabe hacer a cada imputado en relación con [Nombre01 064], sino por lo que de seguido se expondrá . En primer término, se desprende que para determinar la intensidad del reproche en el caso de [Nombre01 041], el a quo no solo consideró la culpabilidad de este en relación con el hecho concreto que se pretendía demostrar mediante la declaración de [Nombre01 064] (a saber, que el primero le hizo al segundo una promesa de dádiva en el restaurante [Nombre01 094] y que luego le trasladó una fuerte suma de dinero a través de [Nombre01 058].), sino también la culpabilidad por todos los demás hechos que tuvo por demostrados en contra de aquel y que eran desconocidos por [Nombre 064] al momento en que se negoció el criterio de oportunidad , p. ej., que era coautor de un plan criminal que comprendía a otros funcionarios públicos, que hubo acercamientos con estos y entrega de retribuciones económicas en circunstancias modales y temporales semejantes; o bien, que [Nombre01 041] tuvo a su disposición mayores sumas de dinero que [Nombre01 064], lo anterior en la medida en que fue él quien identificó a los funcionarios públicos a los que debía pagarse y cuáles cantidades. Como se observa, hablamos de cuestiones que son ajenas a los hechos que, al momento de la negociación, pretendían demostrarse con el testimonio de [Nombre01 064], con lo cual no se podían considerar al ponderar el tema del reproche (al menos no con el propósito de legitimar el criterio de oportunidad), ni pueden tomarse en cuenta ahora, ya que ese examen (ex ante) necesariamente se debe retrotraer a la fecha en que se suscribió el convenio, teniendo presente los hechos que se pretendían dilucidar con la declaración del colaborador, y no los que, tras el debate, se han tenido por acreditados con su ayuda. Los suscritos no desconocen que la declaración de [Nombre01 064] fue un indicio que le permitió al tribunal de mérito confirmar que, además del imputado colaborador, hubo otros funcionarios públicos involucrados y que [Nombre01 041] de común acuerdo con [Nombre01 028] , usó la sociedad anónima [Nombre02 058] para legitimar y luego repartir los fondos procedentes de [Nombre01 060]. Tampoco es posible ignorar, haciendo un examen a posteriori, que la declaración de [Nombre01 064] y, en particular, su afirmación de que se le cursó una promesa de dádiva anterior al contrato de las 400.000 líneas, fue el indicio de mayor importancia al que acudió el tribunal de mérito para tener por demostrado que a los restantes funcionarios públicos imputados se les hizo una promesa similar. Sin embargo, estas consecuencias derivadas de la declaración de [Nombre02 064], que no se contemplaban al negociar el criterio de oportunidad, no se pueden considerar a efectos de establecer el mayor o menor reproche que cabe hacer a [Nombre01 041] frente al imputado colaborador, pues la declaración de este se negoció únicamente para ser utilizada contra [Nombre01 041], [Nombre01 033] y [Nombre01 046], y no para facilitar la persecución penal de otros imputados, p. ej., de [Nombre01 028], o de los funcionarios públicos que también recibieron retribuciones económicas y cuyo vínculo con los hechos era desconocido por el mismo [Nombre02 064]. Es decir, tratándose de [Nombre01 041] , al momento de negociar el criterio de oportunidad lo que se podía demostrar con la declaración del colaborador era que aquel le había cursado una promesa de dádiva y que, luego de la adjudicación del contrato, le entregó una suma superior a los dos millones y medio de dólares a través de [Nombre01 058]., misma que él compartió con [Nombre01 033]. Así, para facilitar la persecución penal de una conducta particular, el órgano requirente optó por garantizar la impunidad de quien además de aceptar esa promesa y recibir la suma mencionada, recibió otras retribuciones económicas nada despreciables, ello en su condición de funcionario público, quebrantando los deberes que le habían sido encomendados. Es importante insistir en que para examinar el reproche no cabe considerar la trascendencia que tuvo la declaración de [Nombre01 064] en la demostración de otros hechos, pues esto no era previsible al momento en que se negoció el criterio y tan es Nombre02 que la aplicación del instituto jurídico se solicitó solo en perjuicio de [Nombre01 033] , [Nombre01 041], [Nombre01 078] y [Nombre02 046]. Finalmente, es importante acotar que la tesis del tribunal de mérito, en el sentido de que es más reprochable la conducta del que paga o corrompe que la del funcionario público que recibe la dádiva o se deja corromper, carece de todo asidero, por varias razones. La primera, porque, según el delito de penalidad del corruptor, la sanción que corresponde a este es la misma que prevé la legislación para el funcionario público. La segunda, porque a diferencia de lo que sucede con el corruptor, es el corrupto el que desconoce sus deberes y compromete la confianza de la ciudadanía en sus instituciones, al usar su cargo para enriquecerse. Nombre02 las cosas, argumentar, sin más, que la conducta de [Nombre01 041] es más reprochable que la de [Nombre01 064] porque el primero cursó la promesa y el segundo solo la aceptó, es -en el menor de los casos- una aseveración que no encuentra sustento alguno. En cuanto a [Nombre01 033], se tiene la misma situación. De los argumentos que cita el tribunal se extrae con meridiana claridad que el mayor reproche en contra de este se asienta en la jerarquía de las funciones públicas que desempeñaba. Se dejó de lado todo análisis sobre la gravedad de la conducta efectivamente realizada por el entonces [...], Nombre17 Nombre02 compararla con las conductas que se dejaron de perseguir. No se consideró que [Nombre01 064], al momento de la negociación, aparece como un sujeto involucrado en múltiples hechos criminales de similar naturaleza, lo que demuestra que era proclive a la recepción de dádivas; que fue él y no [Nombre01 033] quien, según el mismo voto de mayoría, asumió la autoría del hecho criminal y que también fue quien, de ambos, obtuvo mayor provecho económico, pues a pesar de que [Nombre01 033] solicitó el 60% de las ganancias criminales, [Nombre01 064] no tuvo reparos en variar ese reparto por considerarlo “injusto”. No hay razones para dudar acerca de que [Nombre02 033] tenía una relación de jerarquía con [Nombre01 064] al momento de los hechos. No se desconoce que lo había designado ministro, luego asesor presidencial y luego, a través del Consejo de Gobierno que él presidía, lo nombró miembro director del ICE. Esto, que ciertamente desde una perspectiva ética hace más censurable la conducta de [Nombre01 033] (pues si las cosas sucedieron como narró [Nombre01 064] , debió denunciar de inmediato en lugar de apoyar sus intenciones), desde el punto de vista jurídico no permite establecer que el reproche que cabe al segundo sea de menor entidad si se considera todo lo demás. Incluso, es importante acotar que en el caso de [Nombre01 064], la condición de funcionario público también tuvo un papel medular, no solo para lo relacionado con el contrato de las 400.000 líneas, sino para todas las otras recepciones de dádivas en las que figuraba como sospechoso. Finalmente, véase cómo el tribunal de instancia, en tanto consideró más reprochables las conductas de [Nombre01 041] y [Nombre01 046] con el argumento de que fueron estos los promotores de la ejecución del delito, los que tuvieron la iniciativa de buscar a [Nombre01 064], en el caso de [Nombre01 033] desconoce este razonamiento, al concluir que si bien fue [Nombre01 064] quien decidió trasladar la propuesta a [Nombre01 033], esto no hace su conducta más reprochable toda vez que actuó Nombre02 por la confianza y el apoyo que le daba el entonces presidente. Nombre02 las cosas, si bien es cierto que [Nombre01 033] era para el momento de los hechos el funcionario público de mayor rango, esta sola circunstancia no permite justificar la decisión de garantizar impunidad a [Nombre01 064], ya que los hechos en relación con los cuales se prescinde de la persecución penal (y que incluyen aquel con respecto al cual se afirma que [Nombre01 033] es el instigador y [Nombre01 064] el autor instigado), contrario a lo que apunta el a quo, merecen un mayor reproche que la conducta que se pretende perseguir. No aceptarlo así, también lleva a entender que el reproche, en lugar de depender de la gravedad del hecho y la personalidad del partícipe, responde en exclusiva a las características personales del sujeto activo y, tratándose de funcionarios públicos, al cargo desempeñado, de forma tal que al margen de las conductas efectivamente efectuadas, a mayor jerarquía Nombre11 será mayor el reproche. En resumen, por todo lo expuesto, se concluye que el criterio de oportunidad otorgado a [Nombre01 064] es ilegal. Como consecuencia de lo anterior, la declaración que este rindió en el debate como imputado colaborador es prueba ilícita y Nombre02 se declara. A mayor abundamiento, se procederá a resolver algunos cuestionamientos formulados por [Nombre01 033] en relación con la credibilidad que se puede otorgar al dicho de [Nombre01 064] y con ocasión de los cuales, este tribunal de apelación concluye que es inverosímil.
• 4)En cuanto a la valoración del testimonio rendido por [Nombre01 064] en el debate. Un tema fuera de toda discusión, es la obligación del tribunal de juicio de analizar la declaración rendida por el colaborador [Nombre01 064] con apego a las reglas de la sana crítica. El tribunal la ponderó, concluyendo -erróneamente, según lo estima esta cámara- que era creíble. Para tales efectos tomó en cuenta varias circunstancias, algunas generales y otras particulares, descritas en relación con cada imputado. De folios 16.073 frente en adelante del tomo XXXIII, la sentencia recurrida explica: i) La declaración de [Nombre01 064], contrario a lo dicho por los defensores de los imputados, era verosímil y desinteresada, ya que se gestó, no al amparo de un criterio de oportunidad, sino meses antes de acordarse este, en condiciones más gravosas para el colaborador, a saber, con ocasión de un procedimiento abreviado. En este, aceptó su responsabilidad y estuvo dispuesto a que se le impusiera una pena de 4 años de prisión, procedimiento que no prosperó por la oposición de quienes solicitaron intervenir como querellantes, entre ellos personas cercanas a don [Nombre01 033]; ii) ante la expectativa de someterse a un procedimiento abreviado, [Nombre01 064] entregó la suma de $1.401.000 dólares y dos vehículos, a modo de compensación económica; iii) pensar como lo hace el licenciado Gairaud, que [Nombre01 064] aceptó tal pena privativa de libertad porque sabía que en razón del arresto domiciliario sufrido se le concedería el beneficio del artículo 55 del Código Penal, es desconocer que desde el 9 de mayo de 2005, habiéndose iniciado el proceso a fines de 2004, [Nombre01 064] estuvo dispuesto a aceptar los hechos y a ser sancionado; que para mayo de 2005 no habían transcurrido dos años y por ende, no se podía dar por cumplida la mitad de la pena, siendo que además la concesión de ese beneficio es resorte del Instituto Nacional de Criminología y no del Ministerio Público; iv) desde un primer momento, [Nombre01 064] estuvo anuente a que se investigaran sus cuentas bancarias, tarjetas, llamadas telefónicas y ofreció lo que estaba a su alcance para la investigación; igual su esposa y su madre. Su primera declaración tuvo lugar el 30 de septiembre de 2004 y ya para el 5 de octubre estaba autorizando la apertura de sus cuentas y la obtención de información bancaria; v) el 12 de octubre de 2004 mostró interés en compensar el daño causado cuando procedió a entregar al juzgado penal un certificado por la suma de $1.401.241,36; vi) como ya se indicó, el 9 de mayo de 2005, 8 meses después de iniciada la causa, convino la aplicación de un procedimiento abreviado en los términos señalados, a saber, descontando una pena de cuatro años de prisión sin beneficio alguno, obligándose a rendir declaración en juicio y pagando las sumas mencionadas a la Procuraduría General de la República y al ICE, Nombre02 como entregando dos carros. Señala el tribunal que para entonces, [Nombre01 064] no podía hacerse acreedor del beneficio contemplado en el artículo 55 del Código Penal; que tal opción no fue negociada con el Ministerio Público ni estaba dentro de las competencias de este órgano. Añade que si el proceso en cuestión no se concretó, fue por la negativa de los querellantes Fernando Apuy Sirias y Freddy Coto Varela, en donde, al menos el primero, tenía vinculación con [Nombre01 033]. Esto es lo que, a la postre, llevó a la fiscalía a pactar un criterio de oportunidad. No es cierto, por ende, que de buenas a primeras [Nombre01 064] fuese beneficiado con el criterio de oportunidad para que, a cambio de su impunidad, “hundiera” a los demás imputados, sino que fueron las gestiones efectuadas por los allegados a [Nombre01 033] las que impidieron aplicar el procedimiento abreviado, siendo que ya desde este, [Nombre01 064] se había comprometido a declarar en el debate; vii) con otros imputados en esta causa se negociaron procedimientos abreviados, con penas de tres años de prisión y el beneficio de ejecución condicional (v.g., [Nombre01 068], [Nombre01 105]). Así, no puede decirse que hubo un trato preferencial para [Nombre01 064] cuando con este se pactó una pena de cuatro años de prisión; viii) según el voto de minoría, a [Nombre01 064] se le permitió conservar alrededor de un millón de dólares en dádivas a cambio de rendir declaración, pero de esto no hay prueba alguna. Lo que sí consta es que con abreviado o sin él, con criterio de oportunidad o sin él, [Nombre01 064] entregó desde octubre de 2004 una suma de $1.401.241,36 dólares. Para el voto de mayoría, si [Nombre01 064] hubiese querido dejarse algún dinero a cambio de su impunidad, no hubiese entregado esa suma, menos hubiese negociado tal posibilidad. Además, según la dinámica insinuada por la defensa, si el Ministerio Público quería compensar a [Nombre01 064] por su declaración, habría que pensar que igual quiso compensarlo cuando por esa misma suma, convino aplicar el procedimiento abreviado e imponerle 4 años de prisión, o que quiso compensar a [Nombre01 105] cuando este solo devolvió $100.000 habiendo recibido más de $1.000.000, pero que no quiso hacerlo con [Nombre02 068] cuando negoció con él un abreviado y la devolución de más de $1.000.000. Esto lo que refleja es que la negociación con los imputados no estuvo supeditada al tema de la devolución exacta del monto por el cual se beneficiaron; ix) si bien [Nombre01 064] no respondió algunos cuestionamientos de los defensores de [Nombre01 033], [Nombre01 041] y [Nombre01 018], esto obedeció a que fue interrogado en relación con hechos en los que su relato lo auto incriminaría, de ahí que le asistiese el derecho de abstención, o bien porque eran hechos ajenos a los acusados. En cualquier caso, fue el tribunal quien le apercibió (al colaborador) en ese sentido, con lo cual esta situación no mina en nada su credibilidad. A partir del folio 16.085 frente del mismo tomo, el a quo se dio a la tarea de exponer las razones por las cuales considera que el relato de [Nombre01 064] se puede comprobar con otros elementos probatorios de carácter directo o indirecto. Aclara, eso sí, que esa verificación es en relación con los aspectos generales de su versión y no con respecto a cada uno de los hechos relatados por este, pues esto haría inocuo el criterio de oportunidad: a) [Nombre01 033] fue [...] del 8 de mayo de 1998 al 8 de mayo de 2002. b) [Nombre01 064] tenía una amplia trayectoria en el servicio público. Fue ministro consejero encargado de negocios de la Embajada de Chile de 1978 a 1983; diputado en los períodos de 1986 a 1990 y de 1990 a 1994; ministro en la administración de [Nombre01 033] de mayo de 1998 a julio de 1999. Posteriormente, en esta misma administración, desde el 1 de agosto de 1999 al 9 de mayo de 2002, fue designado asesor presidencial y director general de la casa presidencial. También fue nombrado por el Consejo de Gobierno como director del ICE, a partir del 3 de agosto de 1999, ambos puestos (como ministro consejero o director general de la presidencia de la República y como miembro del consejo directo del ICE), desempeñados simultáneamente (de lo anterior, hay abundante prueba, p. ej., las números 15, 303, 304, 305, 638.1 y 638.2, todas citadas a folio 16.091 frente y siguientes). De todo esto se extrae que [Nombre01 064] era una persona cercana a [Nombre01 033], que dependía jerárquicamente de él. También se descartó que [Nombre01 064] guardase un sentimiento de animadversión contra [Nombre01 033]; c) a pesar de que el ICE era una institución autónoma, mantenía un nexo con el gobierno central. Esto no es resultado únicamente de la práctica institucional, sino del ordenamiento jurídico que Nombre02 lo prevé, al dejar en manos del Consejo de Gobierno el nombramiento de los directores de las instituciones autónomas y atribuir al [...] Nombre62 potestad de dirección y coordinación de las tareas; d) hay abundante prueba que permite demostrar que, desde antes de los hechos aquí investigados, era frecuente la política de dar atenciones a los funcionarios públicos del ICE. [Nombre01 041] aceptó espontáneamente haber pagado dádivas a funcionarios públicos. [Nombre02 105] y [Nombre01 078] se sometieron a procedimiento de conformidad, con la consiguiente aceptación de cargos. Hay además tres funcionarios del ICE que han admitido su responsabilidad ([Nombre01 068] en un procedimiento abreviado, [Nombre01 001] admitió espontáneamente ante un medio de comunicación haber recibido dinero de [Nombre01 091] y [Nombre01 064] lo admitió ante el tribunal), con lo cual está corroborada la manifestación del colaborador, en el sentido de que [Nombre01 041] y [Nombre01 078] le hicieron una promesa de dádiva y que él la aceptó tras someterla a conocimiento de [Nombre01 033]; e) los almuerzos y otras actividades entre los empleados de [Nombre01 091] y funcionarios públicos eran frecuentes. Hubo encuentros entre los corruptores y [Nombre01 064], [Nombre01 001], [Nombre01 018], [Nombre01 063] y [Nombre01 022]. Hubo también otra serie de atenciones para los funcionarios públicos, p. ej., el pago de un tiquete de viaje a París para “[Nombre01 064]” y su esposa (prueba Nº 55, folio 91), o reservas de hotel para [Nombre01 022]. f) Algunos funcionarios públicos frecuentaban las instalaciones de [Nombre01 091], por ejemplo, [Nombre02 022] y [Nombre01 001]. Igualmente, [Nombre 041] les enviaba a algunos funcionarios públicos ([Nombre02 022], [Nombre01 001] y [Nombre01 018] ), sobres que contenía la leyenda “confidencial y personal” a sus domicilios y oficinas. También se los enviaba al corruptor [Nombre02 028]. g) [Nombre01 046] tenía relación con [Nombre01 033]. Según [Nombre 064], él hizo gestiones de cobro desde mediados del año 2000 ante [Nombre 041] por solicitud de [Nombre01 046] y por intercesión de [Nombre02 033]. [Nombre 046] escribió un artículo de opinión (prueba Nº 592.7), donde afirma que él, a solicitud de [Nombre01 078], realizó una transacción a [Nombre01 110] (empresa ligada a [Nombre01 033]) y que nunca cobró comisión alguna por favores hechos a dos [...], uno que lo nombró embajador y otro director bancario (este último es [Nombre01 033]). Con esto, dice el tribunal, se corrobora la relación entre [Nombre01 046] y [Nombre01 033] y aunque el primero exonera al segundo de responsabilidad en ese artículo, ya se conoce la verdadera explicación que hay detrás de esos pagos. h) Dos de los directivos nombrados en la administración [Nombre01 033] están vinculados a estos actos de corrupción ( [Nombre01 064] y [Nombre01 068]). Un tercero, [Nombre 022], si bien fue nombrado en la administración Figures Olsen, tenía vínculos con [Nombre01 033]. i) Antes de hacer la propuesta a [Nombre01 064], [Nombre 041] ya había iniciado similar abordaje con respecto a [Nombre01 001], esto al reunirse con él el viernes 1 de diciembre de 2000, con la asistencia también de [Nombre01 078], [Nombre01 111] y [Nombre01 112]. La prueba N° 81 demuestra que ese almuerzo existió, “… lo cual permite apreciar como los corruptores estaban acudiendo a similar estrategia para las propuestas remuneratorias ya no sólo respecto de [Nombre01 064] …” (f. 16.129 frente); j) Al momento en que tuvo lugar la reunión en el restaurante [Nombre 094] entre [Nombre01 064], [Nombre02 041] y [Nombre01 078] y luego, al día siguiente, entre [Nombre 064] y [Nombre01 033] en la casa de este último, todos los involucrados estaban en el país. La llamada de [Nombre01 078] a [Nombre 064] se produjo, dice el tribunal, el 1 de diciembre de 2000, fecha en que también se reunió con [Nombre 041] y [Nombre02 001]. El encuentro en [Nombre01 094] fue el sábado 2 de diciembre de 2000 y el encuentro entre [Nombre01 033] y [Nombre01 064] tuvo lugar el domingo 3 de diciembre de 2000. Según el tribunal, si [Nombre01 064] estuviese mintiendo no se hubiese logrado coincidencia entre los datos obtenidos a partir de los movimientos migratorios de los implicados ([Nombre01 064], [Nombre01 078], [Nombre01 041] y [Nombre01 033]), las liquidaciones de gastos de [Nombre01 041] (que dan cuenta de que el 1 de diciembre de 2000 hubo un encuentro entre [Nombre01 078], [Nombre02 041], [Nombre01 111], [Nombre01 112] y [Nombre01 001]) y los itinerarios de vuelo. k) La existencia de estas reuniones también se demuestra al considerar que [Nombre01 064] votó a favor de la adjudicación de las 400.000 líneas y que meses después de esa votación, recibió la dádiva que compartió con [Nombre01 033]. La distribución de los dineros refleja una estrategia dirigida a ocultar su origen. Además, [Nombre01 064] recibió una suma semejante a otros imputados pero doblada, lo que revela que se les había comunicado a los corruptores que estaban pagando a dos funcionarios y no a uno. Además, hay coincidencia en las circunstancias modales y temporales para la entrega y recepción de las dádivas pagadas a los tres directores del ICE, sea [Nombre01 022], [Nombre01 068] y [Nombre02 064], lo mismo que a [Nombre02 001] y [Nombre01 018]; l) hay prueba de que si bien hasta el 5 de diciembre de 2000 se mencionó formalmente la cantidad de 400.000 líneas celulares, ya con antelación se conocía ese dato por los corruptores, tal y como lo afirmó [Nombre01 064]. Hay una nota de 10 de noviembre de 2000, donde [Nombre01 098] le hace ver a [Nombre02 041] que si bien es favorable el anuncio que hizo [Nombre02 095] sobre la futura licitación de las 600.000 líneas celulares GSM, debían mantener la presión para no permitir que siguieran favoreciendo a Lucent y Ericsson, pues parecía que el ICE planeaba una compra por 200.000 para ampliar las actuales (TDMA). Esto pone al descubierto que los corruptores estaban informados de lo que estaba sucediendo y cómo, a pesar del anuncio de la migración, pensaban que [Nombre01 091] no debía quedarse de brazos cruzados, pues debía acelerar ese proceso (como también sugiere la nota del 22 de noviembre remitida también por [Nombre01 098] a [Nombre01 041] en relación con el nombramiento de [Nombre02 001], prueba Nº 396), aparte de advertirse que si se realizaba una compra directa de 200.000 líneas TDMA, quedarían 400.000 líneas en tecnología GSM. Según las juezas, ese es el dato que para el 22 de noviembre de 2000 manejaban [Nombre01 041] y [Nombre01 078] y, por ende, se descarta que [Nombre01 064] armase erróneamente su declaración, anticipándose a una información que no sería conocida hasta el 5 de diciembre de 2000. m) [Nombre01 091] buscaba ser tratado con equidad y sentía la necesidad de defender sus derechos. En la sesión del 5 de diciembre de 2000, en la que se aprobó el proyecto plan integral de telecomunicaciones, se presentó una propuesta para adquirir 600.000 líneas, específicamente, 200.000 a las empresas Lucent y Ericsson en tecnología TDMA y 400.0000 que se adjudicarían a [Nombre01 091], Siemens, Nortel, Ericsson y Lucent con tecnología GSM. En una segunda etapa, se aprobarían 200.000 líneas móviles para la licitación de tercera generación (3G). Se observa cómo, si bien se propone la apertura a GSM mediante la adjudicación de 400.000 líneas y la inclusión de [Nombre01 091] como oferente, también se respeta un “derecho de piso” a las empresas Lucent y Ericsson, lo que denota un proceder ambivalente del ICE, al seguir fomentando la compra de líneas TDMA. La prueba también demuestra que a [Nombre01 091] se le había negado participar en la contratación de líneas celulares, lo que cambió a partir del 27 de febrero de 2001, luego de hechas las promesas remuneratorias, esto al ser considerada por el consejo director del ICE como posible oferente en la adquisición de las 160.000 líneas celulares por contratación directa, siendo que para entonces ya estaba en curso la contratación de las 400.000 líneas. Igualmente, la prueba permite acreditar que el 28 de agosto de 2001 se adjudicó a [Nombre01 091] el contrato de las 400.000 líneas celulares, sesión en la que estuvo presente [Nombre01 064], [Nombre01 068], [Nombre02 022], Nombre02 como otros funcionarios públicos del ICE. n) Se descartó que a [Nombre01 064] se le pagase solo por la adjudicación de las 160.000 líneas, ya que este imputado no estuvo presente en la sesión Nº 5271, en que se decidió el tema. o) Se demostró a través de abundantes elementos probatorios -periciales, documentales y testimoniales- que [Nombre01 064] recibió dinero de [Nombre01 060] y trasladó parte de él a [Nombre02 033]. Hasta aquí las razones del tribunal de mérito para otorgarle credibilidad, según su criterio, a la declaración brindada por [Nombre01 064] en juicio. Analizados los anteriores indicios, los suscritos jueces de apelación consideran que la conclusión del a quo, en el sentido de que la declaración de [Nombre01 064] es creíble en cuanto a la promesa de dádiva que le fue cursada en relación con el contrato de las 400.000 líneas GSM, es contraria a las reglas de la sana crítica. Es innegable que [Nombre01 064] rindió declaración desde los inicios del presente proceso, sin embargo, fue muchos meses y varias declaraciones indagatorias después que afirmó haber recibido de parte de [Nombre01 078] y [Nombre01 041] una promesa de dádiva relacionada con el contrato de las 400.000 líneas de telefonía GSM. Ahora, no es que [Nombre01 064] inicialmente hubiese guardado silencio sobre la causa de las retribuciones económicas recibidas, para luego decidir pronunciarse al respecto, sino que de forma expresa y reiterada había indicado al Ministerio Público que los dineros recibidos le fueron ofrecidos y entregados tras la adjudicación, a manera de “premio”. Es decir, [Nombre01 064] descartó que se le hubiese cursado una promesa de dádiva anterior a la adjudicación del mencionado contrato. Según se extrae de la revisión de los registros de audio y video del debate, específicamente de lo relacionado con el testimonio que rindió [Nombre01 064] ante el tribunal de instancia, Nombre02 como de la misma sentencia recurrida, tenemos que en varias oportunidades y con fundamento en el artículo 343 del Código Procesal Penal, se incorporaron las declaraciones que el imputado colaborador rindió ante el órgano requirente en lo que resultaba contradictorio con lo que estaba manifestando en el juicio, estableciéndose con meridiana claridad que desde el 30 de septiembre de 2004 y de forma reiterada (cfr. p. ej., la ampliación de declaración que rindió el 15 de octubre de 2004, segundo párrafo del folio 9.003, incorporado por lectura al debate según consta a f. 14.996 frente de la sentencia, tomo XXXI), [Nombre01 064] manifestó que fue luego de la adjudicación e incluso cuando se estaba dando la ejecución del contrato, que se le contactó para avisarle que había “un premio” de parte de [Nombre01 091] . Como se concluye sin esfuerzo, el imputado colaborador fue categórico al descartar que se le hubiese cursado una promesa anterior, siendo tiempo después, el 9 de mayo de 2005, cuando por primera vez indicó algo completamente distinto, específicamente, que [Nombre01 041] y [Nombre01 078] a fines del año 2000 o inicios del año 2001, en el restaurante [Nombre01 094], le cursaron una promesa de dádiva a cambio de que él ayudase a [Nombre01 091] con la migración a tecnología GSM, con la implementación de licitaciones en lugar de contrataciones directas y con su voto favorable a la empresa en el contrato de las 400.000 líneas (cfr. f. 2.992 a 3.010 frente, tomo VIII). A solicitud de parte, el tribunal incorporó el párrafo segundo del folio 2.999, que en lo que interesa, indica: "Entonces ahí llegó don [Nombre01 078] en compañía de don [Nombre01 041] , se dio un intercambio de frases introductorias y don [Nombre01 078] me dice que están preocupados, que tienen cada vez más certeza de que se va a obviar la licitación para perjudicar a [Nombre01 091]. Asimismo me manifestó que don [Nombre01 046] les había señalado que él tenía el poder de traerse abajo dicha licitación, incluso con ayuda de Nombre63, por esas razones me piden ayuda para que no se aborte el proceso y que si todo sale bien la empresa me daría una regalía. Yo le pregunté que era lo que debía hacer, entonces ellos me indicaron que simplemente lo que necesitaban era que se diera la licitación, yo les pregunté si no había que hablar con alguien y me dijeron que no, que lo único que necesitaban era que la licitación no se abortara. Posteriormente yo les pregunté en que consistía el premio y me indicaron que entre un uno punto cinco por ciento (1.5%) y dos por ciento (2%) de la licitación, fuera de gastos..." (Transcripción hecha a f. 15.001 de la sentencia, tomo XXXI). Es decir, fue aproximadamente ocho meses después de haber rendido su primera declaración, que [Nombre01 064] manifestó que hubo una promesa de dádiva anterior a la contratación de las 400.000 líneas, misma que compartió con [Nombre01 033] . La declaración en la que [Nombre01 064] cambió su versión de los hechos se empezó a rendir el mismo día en que suscribió un acuerdo con el Ministerio Público para que se aplicara un procedimiento abreviado, en el cual el órgano requirente condicionó su anuencia a que la ampliación indagatoria de [Nombre01 064] cumpliese con ciertos términos, a saber, “… exponer de manera clara la existencia de negociaciones y de una promesa de entrega de dinero anterior a la aprobación del contrato de las 400 K entre el Instituto Costarricense de Electricidad y la empresa [Nombre 091]. Asimismo el imputado [Nombre01 064] dará a conocer el Nombre01 de un testigo de referencia, el cual tiene conocimiento porque Nombre02 se lo hizo saber el imputado [Nombre01 064], de la promesa de entrega de dinero anterior a la aprobación del contrato Nombre64 091]. Por otra parte, realizará una declaración aún más amplia sobre la entrega de dineros al co-imputado [Nombre01 033], aclarando cada una de las transacciones realizadas respecto del dinero correspondiente a las dádivas o pagos de [Nombre01 091]. Referirá además sobre el conocimiento que tenía el co-encartado [Nombre01 033] de la promesa de dádivas o pagos hechas por [Nombre01 091], Nombre02 como la aprobación de éste para que [Nombre01 064] recibiera dichos dineros… La pena que se acuerda será de cuatro años de prisión sin ningún tipo de rebajo.” (F. 2, prueba Nº 308, documento acuerdo previo para aplicación de procedimiento abreviado). Es cierto, como apunta el tribunal de mérito, que el procedimiento abreviado no se aplicó por razones ajenas a [Nombre01 064] y que la pena pactada no permitía la aplicación de beneficios tales como la condena de ejecución condicional. Esta circunstancia, sin embargo, tampoco permite concluir que la primera versión de [Nombre01 064] fue falsa y que la segunda fue verdadera, sobre todo si se considera que esta última se rindió precisamente al amparo de una negociación con el Ministerio Público, que desde entonces, supeditó el abreviado a que [Nombre01 064] incluyese en su relato determinada información (específicamente, sobre la promesa de dádiva que se le cursó antes de la adjudicación, la identificación de un testigo de referencia y mayores detalles sobre la conducta de [Nombre01 033], el conocimiento que tenía de la promesa y la anuencia que prestó para que [Nombre01 064] recibiera los dineros). Es decir, al negociar con el órgano requirente, el relato de [Nombre01 064] cambió de forma drástica sobre un aspecto medular, en concreto, sobre la existencia de una promesa de dádiva anterior a la adjudicación. Es una inconsistencia que adquiere importancia mayúscula al valorar la credibilidad de la declaración, no solo porque la configuración del delito -corrupción agravada por cohecho impropio- depende de la demostración de la promesa previa hecha por [Nombre01 041] y [Nombre01 078], sino porque contrario a lo indicado por el a quo, sobre su existencia solo se cuenta con el propio dicho del imputado colaborador. Según la sentencia recurrida, lo expuesto por [Nombre 064] es cierto porque todos los involucrados estaban en el país para el sábado 2 de diciembre de 2000. Esto, a todas luces, es insostenible, ya que de ese único indicio (la presencia de [Nombre01 041] , [Nombre01 078] y [Nombre01 064] en territorio nacional) no se podría extraer como una conclusión razonable y natural que la reunión haya existido, menos todavía que la promesa se haya cursado. Es importante acotar que si bien hay prueba de que [Nombre01 078] y [Nombre01 041] se reunieron el día 1 de diciembre de 2000 con [Nombre02 001] y otras personas (cfr. voucher de folio 6 bis y factura de folio 7, liquidación de folio 1, prueba Nº 81 que esta cámara ha tenido a la vista) y de que [Nombre01 041] también se encontró con [Nombre02 001] el 29 de noviembre de 2000 (cfr. también la prueba Nº 81), esto es absolutamente intrascendente para lo que aquí interesa, ya que, según reconoció el mismo tribunal, estas reuniones eran frecuentes, sin que se pueda aseverar que estaban dirigidas a hacer propuestas ilícitas a esos servidores (f. 16.112 frente, tomo XXXIII). Por eso, es una simple suposición de las juezas que suscriben el voto de mayoría el concluir que el encuentro que tuvo lugar un día antes del que describió [Nombre02 064], permite demostrar que “… los corruptores estaban acudiendo a similar estrategia para las propuestas remuneratorias ya no sólo respecto de [Nombre01 064], sino también de otro co-imputado y funcionario del ICE...” (F. 16.129 frente, tomo XXXIII). Otro tanto cabe sostener en relación con la reunión entre [Nombre01 064] y [Nombre01 033]. El que ambos se encontraran en el territorio nacional, indicio que se constata a través de los documentos que dan cuenta de sus movimientos migratorios, no permite siquiera establecer con un grado de probabilidad que el citado encuentro existió. Es importante recordar que [Nombre01 064] no es en este proceso un testigo, sino un imputado colaborador que, como tal, no está obligado a decir verdad o a declarar bajo juramento. Su aporte además no es gratuito. Se articula a sabiendas de que, si satisface las expectativas por las cuales se suspendió el ejercicio de la acción penal en su contra (art. 23 C.P.P.), obtendrá a modo de beneficio o premio, la extinción de esa acción. Si bien esa sola circunstancia no permitiría negar credibilidad a su dicho, lo cierto es que este debe ponderarse con extrema precaución, al punto de ser indispensable contar con elementos probatorios adicionales que ratifiquen sus palabras. En igual sentido, señala Nombre54: “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 datos 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 asuma 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.” (Nombre54, op. cit., p. 595). Se trata de una preocupación que no es exclusiva de nuestro medio. En otros países donde se ha incorporado la figura del “arrepentido” en el contexto de la lucha contra la criminalidad organizada, también se formulan cuestionamientos en relación con la valoración procesal que se puede hacer de sus declaraciones y sobre la necesidad, a efectos de estimar verosímil el relato, de su constatación por otros medios de prueba: “La simple delación de otros individuos realizada por el imputado autodeclarado culpable, que presta su testimonio incriminando a otros partícipes de la organización criminal buscando un mejor trato punitivo, plantea graves problemas probatorios. Difícilmente puede identificarse la declaración delatoria de un coimputado con la de un testigo procesal, en tanto en cuanto, el propio interrogatorio del imputado está construido como un medio de defensa que le permite no responder a las cuestiones planteadas e, incluso, mentir sobre los hechos, mientras que el testigo procesal está obligado a decir la verdad sobre los hechos bajo la amenaza de ser imputado por un delito de falso testimonio. La introducción en los ordenamientos jurídicos de la “figura híbrida del imputado-testigo” abre las puertas al peligro de la “degeneración del sistema probatorio.” (Nombre15, op. cit., p. 29.). En el caso particular, lo que se está valorando es si es creíble el testimonio rendido por un imputado en cuanto a la existencia de un hecho (la promesa de retribución económica anterior a la adjudicación), cuando él mismo a lo largo del proceso había negado expresamente el punto, manifestando de manera contundente que las sumas recibidas le fueron ofrecidas luego de la adjudicación del contrato de las 400.000 líneas de telefonía celular. Esta cámara no tiene dudas acerca del malestar experimentado por los jerarcas de [Nombre01 091] durante los años 1999 y 2000, ya que por el uso de tecnologías cautivas -TDMA- en Costa Rica, [Nombre01 091] quedaba prácticamente fuera del mercado de telefonía móvil. Tampoco tiene dudas acerca de la estrategia que, al menos formalmente, la citada compañía diseñó para resolver ese problema (ruta de acción de [Nombre01 124]) y que contemplaba acercamientos a figuras claves en diferentes ámbitos del quehacer nacional; sobre los vínculos entre [Nombre01 064] y [Nombre01 033], Nombre02 como entre el primero y otros funcionarios públicos con la empresa [Nombre 091] y sus representantes. Se demostró también que [Nombre02 041] a través de dos sociedades anónimas ([Nombre01 058]. e [Nombre01 114] .) trasladó fondos a una serie de funcionarios ligados al ámbito de las telecomunicaciones después de que [Nombre02 091] obtuvo la adjudicación de las 400.000 líneas, funcionarios entre los cuales figuraba [Nombre 064] , quien, también se demostró, trasladó parte de esos fondos a [Nombre01 033] o a personas, físicas o jurídicas, allegadas a este. No obstante, lo que no se puede establecer con un grado de certeza es que [Nombre01 041] y [Nombre01 078] le hayan cursado a [Nombre 064], en el restaurante [Nombre 094], sita en Alajuela, una promesa de retribución económica antes de que se concretase el contrato de las 400.000 líneas y, menos todavía, que esa promesa se hizo a cambio de que ese funcionario público actuase en tres áreas, en concreto, favoreciendo la migración a GSM, impulsando el uso de licitaciones públicas en reemplazo de contrataciones directas y votando de manera favorable a [Nombre01 091] en el contrato antes referido. Del mismo modo, salvo lo expuesto por [Nombre 064], no cabe tener por demostrado con certeza que este trasladó la citada promesa a [Nombre01 033] al día siguiente, en los términos que explicó el órgano requirente. No se puede perder de vista que sobre el citado hecho (la promesa de dádiva cursada en diciembre de 2000), lo único con que contó el a quo fue la declaración del imputado colaborador, misma que a todas luces no se puede considerar confiable porque ha variado con el paso del tiempo; porque los cambios se produjeron justamente al negociar con el Ministerio Público, al punto de que se hizo condicionó el procedimiento abreviado a lo que [Nombre01 064] declarase en cuanto a la promesa de dádiva; porque los cambios no versan sobre cuestiones tangenciales, sino todo lo contrario, sobre un hecho medular que no había pasado desapercibido para el mismo imputado colaborador, pues durante meses había descartado cualquier ofrecimiento anterior al contrato mencionado y, finalmente, porque [Nombre01 064] era un funcionario público proclive a la recepción de retribuciones económicas irregulares (“premios” según dijo él), originados en personas físicas y jurídicas con las que tenía vínculos por su cargo, con lo cual tampoco se puede descartar que las cosas hayan sucedido de otras maneras no contempladas en la acusación, p. ej., en los términos que él narró durante meses (configurándose en ese caso el delito de aceptación de dádiva por acto cumplido), o bien, de otros modos también censurados en nuestro ordenamiento jurídico (p. ej., que fuese él quien exigió el pago de la retribución económica, alternativa que tampoco es descartable si se considera que el mismo [Nombre01 064] en el debate reconoció que antes de los hechos aquí investigados y por insistencia de [Nombre01 046] y [Nombre01 033], le “sugirió” a [Nombre01 041] y al mismo [Nombre02 078] “la conveniencia de pagar” a [Nombre01 046] lo que le habían prometido en el pasado; cfr. f. 14.940 y 14.941 frente, tomo XXXI). Es importante subrayar que [Nombre01 064] tuvo responsabilidad penal en los hechos investigados y, en ese tanto, sus aportes como colaborador están condicionados al interés que tiene de satisfacer las expectativas del órgano requirente. Su testimonio (término usado en sentido impropio, pues no declaró bajo juramento) no puede considerarse una prueba suficiente para tener por demostrada la existencia de una promesa de dádiva anterior (elemento que es determinante para hablar de un delito de corrupción agravada por cohecho impropio), siendo que además, contrario a lo que señala la sentencia recurrida, no existen otros indicios que confirmen ese extremo. Es importante acotar que para esta cámara, en razón del principio de libertad probatoria contemplado en el artículo 182 del Código Procesal Penal, no existe ningún impedimento para tener por demostrado un hecho de interés para la resolución del caso basándose únicamente en la información que brinda el imputado colaborador cuando se baste a sí sola, sin embargo esto no sucede aquí, ya que, como se ha venido explicando, hay cuestionamientos de peso sobre el relato suministrado y sobre su veracidad, que pese a los esfuerzos hechos por el órgano requirente, no han podido ser eliminados. Hay una serie de indicios (expuestos atrás) que ciertamente se pueden tener por demostrados sin contar con la declaración de [Nombre01 064], a saber, que entre 1999 y 2000 los personeros de [Nombre01 091] en el país consideraban que la empresa era objeto de un trato irregular por parte del ICE; que se elaboró una estrategia para resolver ese problema, misma que contemplaba el acercamiento a personas de importancia en distintos ámbitos; que si bien se vislumbraba la necesidad de que el ICE migrara a la tecnología GSM y la institución había dado algunos pasos en ese sentido, para el año 2000 no era una decisión consolidada; que varios funcionarios públicos relacionados con el ámbito de las telecomunicaciones y con vínculos con [Nombre01 091] recibieron, en circunstancias similares y a través de los mismos canales ([Nombre01 058]. e [Nombre 114].), sumas originadas en [Nombre01 060] y, claro está, que [Nombre01 091] se hizo con el contrato de las 400.000 líneas. Ahora, de todos esos indicios se puede derivar razonablemente que los funcionarios públicos recibieron dineros de parte de la citada empresa, e incluso se podría sospechar que esos fondos tenían alguna relación con la adjudicación del citado contrato, sin embargo, lo que no es plausible es asegurar con certeza que esos fondos, todos trasladados a los funcionarios públicos después de la adjudicación, eran para cumplir una promesa que les fue cursada previamente y por separado a cada uno de ellos, a cambio de apoyar a la citada empresa, sobre todo considerando que, según se demostró, [Nombre01 091] fue favorecida con el contrato no por casualidad o por actos irregulares de los imputados, sino por cumplir con todos los requerimientos del cartel, lo que no sucedió con la competencia (hecho demostrado Nº 41). Es decir, en cuanto a la existencia de una promesa anterior cursada a [Nombre01 064] (y que el a quo emplea para establecer que a los demás imputados que tenían la condición de funcionarios públicos también se les cursó una propuesta similar), la única prueba con que se cuenta es la palabra de aquel imputado colaborador, persona que durante meses negó de forma expresa tal extremo. Es importante hacer ver que en el debate, a [Nombre01 064] se le preguntó en cuanto a esta y otras inconsistencias detectadas en su versión. Él, a pesar de reconocer haber dicho que el ofrecimiento fue posterior a la adjudicación, negó haber mentido el día 30 de septiembre de 2004, argumentando que entonces solo había tratado de “cubrirse o auto protegerse”, siendo que luego fue “precisando” (f. 14.962 y 14.986 frente, tomo XXXI). Incluso, afirmó que “… era obvio que esa afirmación no se iba a sustentar por sí sola; por eso la Fiscalía me dijo 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.” (F. 14.962 frente del mismo tomo). Y es que a pesar de que [Nombre01 064] negó de manera insistente haber falseado los hechos, es indubitable, evidente, que alguna de las dos versiones que ofreció no se corresponde con la realidad. O mintió al señalar que no hubo ofrecimiento anterior, o mintió al afirmar que lo hubo, siendo imposible establecer con base en un testimonio tan cuestionable e interesado, si efectivamente se le cursó una promesa de retribución económica antes de que se concretara el contrato de las 400.000 líneas, o si semejante aseveración solo responde a su interés de satisfacer al Ministerio Público para obtener el beneficio procesal que le fue prometido. Para el tribunal de mérito, la comprobación del dicho de [Nombre01 064] debe ser en cuanto a lo general y no con respecto a cada uno de los hechos relatados, ya que pretender esto haría improductivo el criterio de oportunidad. Tal conclusión, en el caso particular, no es de recibo, ya que la declaración del imputado colaborador ha sido inconsistente sobre un hecho que si bien es específico, es el de mayor importancia de toda su versión, a saber, la existencia de una promesa de dádiva anterior al procedimiento concursal abreviado N° 1-2001. Nombre02 las cosas, no es posible ignorar lo anterior y estimar verosímil el relato únicamente porque en cuanto a algunos hechos generales, coincida con otros elementos probatorios (v.g., en cuanto al panorama que enfrentaba [Nombre01 091] en un mercado que trabajaba con tecnologías cautivas). Se debe insistir en que si bien el artículo 182 C.P.P. contempla la posibilidad de probar cualquier circunstancia de interés para el caso por cualquier medio de prueba permitido, lo que incluiría la declaración del imputado colaborador, conforme a las reglas de la sana crítica no es lo mismo afincar un juicio de certeza en el relato que ha sido coherente, consistente, que en uno abiertamente contradictorio sobre el hecho medular imputado (la promesa de dádiva), contradicción que, además, surgió al llegar a un acuerdo con el órgano requirente, primero para aplicar un procedimiento abreviado y luego un criterio de oportunidad. Aunado a esto, en la declaración de [Nombre01 064] se presentan otras inconsistencias que son imposibles de ignorar. Por ejemplo, el 30 de septiembre de 2004 [Nombre01 064] declaró que, tras el primer envío de dinero por parte de [Nombre01 091], entregó a [Nombre01 033] en el despacho de este y en efectivo, la cantidad de $370.000. Sin embargo, resultó ser que el monto que [Nombre01 091] le había entregado a él en esa oportunidad fue de tan solo $225.000. Interrogado al respecto, [Nombre01 064] señaló que la confusión fue involuntaria “…por lo tribulado de los acontecimientos” (f. 14.987 frente) y que de esos $225.000, lo que trasladó a [Nombre01 033] en su despacho, fue la suma de $130.000 de la siguiente manera: “…un certificado de $100.000 y 6 por $5.000…” (f. 14.987 frente). El tribunal, en su voto de mayoría, aceptó las excusas de [Nombre01 064], tras considerar que la prueba documental permite confirmar que el imputado colaborador entregó a [Nombre01 033] los certificados antes expuestos. Sin embargo, una cosa es tener por demostrado que ese traslado de certificados tuvo lugar y otra distinta es tener por demostrado el concepto por el cual este traslado ocurrió, extremo que solo puede ser acreditado a través del dicho de [Nombre01 064] y en ese tanto, es medular que su relato sea verosímil. Se reitera, en cuanto a la promesa de dádiva anterior y la intervención de [Nombre01 033] en la aceptación de esa promesa, la única prueba que existe es el dicho de [Nombre01 064] (que no es un testigo, sino un imputado cuya situación jurídica depende de lo que se resuelva en este proceso), de ahí que cualquier inconsistencia que se aprecie en él deba ser valorada con extremo cuidado. En ese contexto, llama la atención que este deponente haya incurrido en “confusiones” de nada despreciable envergadura como la ya apuntada, pues no todos los días se entregan $370.000 dólares en efectivo procedentes de un hecho criminal, al [...]. Nombre11 en esta línea de ideas, llama la atención cómo [Nombre01 064], al ser cuestionado por los defensores de los encartados sobre este y otros temas de importancia, manifestó no recordar. Es imposible de ignorar que diga no recordar por ejemplo, si en sus declaraciones ante el órgano requirente él había insistido en que el “premio” fue posterior a la adjudicación, o si le había contado a [Nombre01 115] de su acuerdo con [Nombre01 033] o con [Nombre01 091] (f. 14.990 frente), cuestiones que resultan elementales y medulares en su testimonio. Aunado a esto, nótese que -según [Nombre01 064]- la promesa de dádiva no tenía que ver solamente con la migración a tecnología GSM, o el uso de las licitaciones en lugar de las contrataciones directas, sino con la adjudicación del contrato de las 400.000 líneas (f. 14.963 frente), sin embargo, el procedimiento licitatorio abreviado para el arrendamiento con opción de compra de 400.000 líneas celulares GSM nació por haberlo ordenado Nombre02 la Contraloría General de la República tiempo después de que, según [Nombre01 064], la promesa de retribución económica se hubiese cursado . Aunque, como indica el tribunal, para inicios de diciembre de 2000 ya se había desarrollado alguna propuesta, que es justamente la que se discute el día 5 (sesión Nº 5249), en el voto de mayoría se opta por ignorar que en ella se hablaba de 600.000 líneas, 200.000 para ampliar las actuales -con tecnología TDMA- y 400.000 en tecnología GSM a obtener no por licitación pública sino por compra directa a 5 proveedores ([Nombre01 091] , Siemens, Nortel, Ericsson y Lucent), siendo la Contraloría la que después de esa fecha (y, por ende, después de que según [Nombre01 064] se le cursó la promesa de dádiva) se negó a autorizar más compras directas, abriendo la puerta a un proceso concursal abreviado. En ese tanto, es difícil creer que la promesa de retribución que [Nombre01 064] ubicó a inicios de diciembre de 2000 contemplase, como él dijo, un voto favorable en relación con un procedimiento licitatorio que para entonces no existía ni se vislumbraba (de nuevo, lo que se había diseñado en relación con las 400.000 líneas GSM era la compra directa a varios proveedores). En resumen, aunque hay elementos probatorios que permiten confirmar algunos extremos del relato dado por [Nombre01 064] (p. ej., que luego de la adjudicación, [Nombre01 091] le entregó una importante suma de dinero), en lo medular (esto es, el haber recibido el día 2 de diciembre de 2000 una promesa de retribución económica que trasladó a [Nombre01 033] el día 3 de ese mismo mes y año; cfr. hechos probados identificados con los números 85 a 92), su relato no solo no encuentra respaldo en otras probanzas, sino que además ha sido contradictorio, al punto de resultar imposible descartar que las cosas también hayan ocurrido de otro modo, a saber, que fuese él -[Nombre01 064]- y otros funcionarios públicos quienes demandaron a los jerarcas de [Nombre01 091] la entrega de retribuciones económicas; que estas se hubiesen dado luego de adjudicado el contrato de las 400.000 líneas sin que hubiese una promesa anterior (tesis que, se reitera, él mantuvo durante varios meses), o que la promesa, si es que existió, tuviese un contenido distinto al que [Nombre01 064] menciona. Para los suscritos, el dicho de [Nombre01 064] es sencillamente inverosímil y por ello, no es suficiente para tener por demostrada la causa por la cual los funcionarios públicos recibieron pagos originados en [Nombre02 060]. Es importante subrayar que la concesión a [Nombre01 064] de un criterio de oportunidad en modo alguno tiene relación con la credibilidad que se le pueda dar a su testimonio. Nombre02 las cosas, no se comprende por qué el Ministerio Público, a sabiendas de que este imputado, que era proclive a la recepción de retribuciones económicas, les suministró dos versiones distintas en cuanto a un tema tan medular como lo es la promesa de retribución económica, optó por aplicar en relación con él un criterio de oportunidad, dejando de lado las circunstancias referidas que, a la postre, tal y como ahora sucede, hacen imposible estimar creíbles sus palabras. A mayor abundamiento, esta cámara también se ha dado a la tarea de escuchar el registro de audio y video de la declaración de este imputado colaborador en el debate, determinando que las respuestas que dio a una cantidad importante de preguntas formuladas por los defensores de los otros justiciables, no fueron espontáneas. Nótese que en múltiples casos, antes de responder, [Nombre01 064] hablaba con su abogado defensor, el licenciado Edwald Acuña Blanco, profesional que estaba sentado a su lado. Esta situación inclusive fue objeto de cuestionamiento no solo por reiterada, sino porque tuvo lugar tratándose de preguntas cuyas respuestas no podían generar responsabilidad a [Nombre01 064] en relación con hechos criminales ajenos a los negociados con el criterio de oportunidad. Sin embargo, el tribunal se negó a corregir la situación, argumentando que no se podía asegurar que el licenciado Acuña Blanco estuviese recomendando a [Nombre01 064] qué responder (cfr., p. ej., la grabación correspondiente al día 16 de septiembre de 2010, archivo c0002100916102255.vgz, de las 10:42:10 horas en adelante). Se trata de una conclusión que este tribunal no comparte. [Nombre01 064], como imputado colaborador que es, tenía derecho a conversar en forma privada con su abogado antes de rendir declaración, para que este lo asesorase. También tenía derecho a declarar en su presencia (art. 82 inciso e), 93 y 95 del Código Procesal Penal) y claro está, a que el licenciado Acuña Blanco, en caso de considerarlo necesario, le recomendase guardar silencio ante las preguntas cuyas respuestas, eventualmente, le pudiesen suponer alguna responsabilidad en relación con hechos distintos a los negociados con el órgano requirente. Lo que constituye un abuso de esos derechos es que cualquier imputado (y más [Nombre01 064], quien obtendría una ventaja procesal importante a cambio de su declaración) se limite a comunicar las respuestas de su asesor, siendo ingenuo estimar, como lo hace el voto de mayoría, que las conversaciones dadas entre imputado y abogado después de cada interrogante y antes de responder, no tenían el propósito de guiar sus respuestas, diálogos que además no tenían razón de ser tratándose de preguntas relacionadas con los hechos contemplados al menos formalmente, en el criterio de oportunidad, pues en cuanto a estos fue que [Nombre01 064] se comprometió a colaborar. Pero es que incluso, asumiendo hipotéticamente que un imputado que ha decidido declarar puede hacerlo en semejantes condiciones, lo no se puede negar es que este proceder abona a las dudas que se suscitan en cuanto a la veracidad de su versión, ya que no fue siquiera capaz de responder de manera espontánea a muchas de las preguntas que le fueron formuladas. Finalmente, nótese que además del dicho de [Nombre01 064], la única prueba que de algún modo se relaciona con el tema de la promesa anterior, es la sentencia Nº 586-07, dictada el 16 de octubre de 2007 contra [Nombre 068] y en la cual se le condena por haber aceptado una promesa de dádiva por parte de [Nombre 105] (prueba Nº 747), sin embargo, se trata de una sentencia emitida años después de que [Nombre01 064] rectificara su declaración (y de que, con base en esta, el órgano requirente asumiese una determinada teoría del caso) en el marco de un procedimiento abreviado, donde la aceptación de cargos por parte de [Nombre01 068] tuvo un carácter formal , con lo cual no tiene el peso suficiente para convertir en verosímil un relato tan cuestionable como el ya expuesto. Y es que si la pretensión del órgano requirente era respaldar el testimonio de [Nombre01 064] con el de [Nombre01 068], o bien con el de cualquier otro imputado que hubiese pactado con el órgano requirente (p. ej., [Nombre01 105]), debió ofrecer sus declaraciones para que fuesen recibidas al momento del debate y no pretender asignar a una sentencia, que incluso en cuanto al punto en cuestión -la aceptación de la promesa de dádiva- es bastante escueta, una trascendencia probatoria que no tiene, ya que no se trata de un documento que contenga una declaración rendida con todas las formalidades que prevé el ordenamiento jurídico para ser incorporada por lectura al debate y examinada en este proceso, como si de un anticipo jurisdiccional de prueba se tratase. Aunado a esto, no se puede perder de vista que en tanto [Nombre01 064] habla de una promesa de dádiva que le fue cursada desde diciembre de 2000 con tres objetivos específicos (migración a GSM, licitación pública en lugar de contratación directa y adjudicación de las 400.0000 líneas), en relación con [Nombre01 068] la sentencia solo alude a una promesa que fue articulada cuando ya estaba en marcha el proceso licitatorio, de ahí que no se trate de situaciones idénticas, donde de la demostración de una, se pueda derivar la existencia de la otra. Tratándose de las manifestaciones de [Nombre01 041], reconociendo haber hecho pagos a funcionarios públicos, y la de [Nombre01 001], aceptando haberlos recibido, es importante acotar que ni uno ni otro indicaron el concepto por el cual se hicieron o recibieron los pagos. Es decir, sigue manteniéndose la duda acerca de si los montos fueron para cumplir con una promesa de dádiva cursada antes de la adjudicación (lo que nos lleva a dudar acerca de si esa promesa de dádiva que describió [Nombre01 064] y el órgano requirente en relación con los funcionarios públicos involucrados, efectivamente existió), o si los pagos respondían a otras dinámicas igualmente plausibles, que además de no estar contempladas en la acusación, encuadrarían en tipos penales distintos (p. ej., cohecho propio, aceptación de dádivas por un acto cumplido, o concusión). Es importante añadir que el Ministerio Público, con ocasión de la audiencia oral realizada ante esta cámara, aportó un documento denominado “Registro escrito de la exposición oral del Ministerio Público/Vista Nombre64 091]” , en el cual afirma que el tribunal, en su voto de mayoría, analizó gran cantidad de prueba tanto documental como testimonial que permite verificar la veracidad de la declaración de [Nombre01 064] en una serie de extremos, mismos que el órgano requirente expuso en 24 puntos, a saber: 1) [Nombre01 091] hizo uso de numerosos instrumentos de formación de opinión pública para explicar su interés por migrar a nuevas tendencias. Este fue el inicio de una discusión pública que se unía a la demanda insatisfecha. Además, [Nombre01 091] Nombre11 sostuvo que fue objeto de un trato discriminatorio por parte del ICE y cuestionó las compras hechas a otras empresas; 2) para mayo de 2000 no se había tomado la decisión de migrar a la tecnología GSM; 3) hay prueba de que [Nombre02 041] conocía lo que iba a suceder en cuanto a la contratación directa de 160.000 líneas a [Nombre02 091] , lo que confirma lo dicho por [Nombre01 064] en el sentido de que el primero lo llamó y le pidió asistir a la sesión del consejo directivo donde se ponía en entredicho un acuerdo sobre el tema que había sido adoptado en la sesión anterior, a la que [Nombre01 064] no se presentó; 4) entre [Nombre01 064] y [Nombre01 033] hubo una relación de cercanía; 5) [Nombre01 064] y [Nombre 041] tenían contacto; 6) [Nombre01 041] reconoció a [Nombre 116] que [Nombre01 058] era una especie de fideicomiso. El pagador era [Nombre01 058]., no [Nombre01 091] directamente, lo que ratifica lo expuesto por [Nombre 064], en cuanto a la consulta que él le hizo a [Nombre01 041] sobre esa sociedad anónima; 7) en cuanto al contenido de la promesa remuneratoria, [Nombre01 064] mencionó que era a cambio de migrar de tecnología, impulsar la licitación y votar afirmativamente la oferta de [Nombre01 091]. Por su parte, [Nombre01 128] describió cómo la empresa contactó con [Nombre02 018] para hablar sobre la eliminación de las contrataciones, señalando además que [Nombre01 018] le pidió conversar con sus superiores. Consta también que a [Nombre01 018] se le hizo llegar por el mismo canal y en la misma época que a [Nombre01 064], una cantidad de dinero y se cuenta con prueba documental que da cuenta del malestar de uno de los gestores del plan corruptor y que se asocia con los tres objetivos ya mencionados; 8) en cuanto a la promesa que describe [Nombre01 064], hay prueba de que a este imputado se le trasladó dinero por medio de [Nombre01 058].; 9) para cuando [Nombre01 064] dijo que se le hizo la propuesta para favorecer la migración, esta no se había dado; 10) del proceso de seducción descrito por [Nombre01 064], existe abundante prueba que da cuenta de los encuentros, invitaciones y atenciones de [Nombre01 091] para con varios funcionarios públicos; 11) [Nombre01 064] ubicó la oferta a fines del año 2000, siendo que ese año resultó decisivo para [Nombre01 091], según se extrae de las denuncias que formuló y de otras pruebas documentales (p. ej., campos pagados); 12) de la reunión entre [Nombre01 064] y [Nombre01 033] hay prueba documental que da cuenta de la forma en que se repartieron el dinero de [Nombre01 091]; 13) según [Nombre01 064], por la promesa hecha fue que se le pagó el dinero. Nombre02 lo confirma el hecho de que tanto a él como a otros funcionarios públicos, se les pagara por medios similares -a través de [Nombre01 058].-; 14) dijo [Nombre01 064] que parte del dinero era para [Nombre01 033]. En cuanto a esto, la prueba demuestra que [Nombre01 064] recibió una suma similar a los demás funcionarios públicos pero doblada, lo cual revela que por su medio se pagaba a dos funcionarios y no a uno. Se demostró el traslado del dinero de [Nombre01 064] a [Nombre01 033] y se descartó que se tratase de un préstamo, como lo dijo el segundo; 15) y 16) hay prueba que confirma la relación de [Nombre01 046] con [Nombre01 091] , el traslado de fondos de esa empresa a [Nombre02 046] y el traslado de fondos de este a [Nombre01 064]. Se comprueba Nombre02 el dicho del colaborador en el sentido de que [Nombre01 046] le retribuyó por haber cobrado a [Nombre01 091] lo que le debían; 17) de las entregas de dinero de [Nombre01 064] a [Nombre01 033] que el primero describe, hay prueba documental; 18) [Nombre01 064] dijo en un primer momento haber transferido fondos a la cuenta de [Nombre02 110], siendo que luego aclaró que no fue así. Esto es verosímil pues [Nombre01 064] suministró un documento donde constaba el número de la citada cuenta, siendo que además el vínculo de esa sociedad con [Nombre01 033] no era conocido siquiera por personas allegadas a [Nombre01 033]; 19) se demostró que [Nombre01 064] hizo un primer pago a [Nombre01 033] con unos certificados BICSA de su madre, ya que su cuenta estaba siendo cuestionada, tal y como él lo señaló; 20) se estableció que parte del segundo pago hecho por [Nombre01 064] a [Nombre01 033] se usó en beneficio de este último; 21), 22 y 23) en cuanto otros pagos hechos por [Nombre01 064] al entonces [...], Nombre65 prueba documental y testimonial que da cuenta del tránsito seguido por el dinero y de cómo acabó en manos de personas ligadas a [Nombre01 033], siendo que además parte de esos pagos fueron aceptados por [Nombre01 033]; 24) [Nombre01 064] dijo que en relación con los últimos pagos que le hizo [Nombre 091], él no trasladó dinero a [Nombre01 033] pues era difícil ya que este se encontraba en Washington y porque creía injusto el reparto, lo que -dicen los fiscales- usó el tribunal para explicar por qué se truncó el traslado de fondos (f. 176.960 a 176.965 vuelto, tomo XLIV). Para esta cámara, los indicios antes mencionados en modo alguno permiten confirmar que la promesa de dádiva tuvo lugar en los términos que describió [Nombre01 064] en el debate, menos todavía permite descartar de manera categórica otras alternativas igualmente plausibles, que no fueron acusadas. Y es que nadie ha puesto en tela de duda que los personeros de [Nombre01 091] estaban insatisfechos con el trato que recibían de parte del ICE (debe recordarse que en el país se usaban tecnologías cautivas y que, por eso, [Nombre01 091] no podía competir); que denunciaron la situación y diseñaron una estrategia para corregirla, misma que pasaba por acercarse a ciertas figuras públicas, contacto que efectivamente tuvo lugar y que se demostró, tampoco era extraño. Del mismo modo, se acreditó que algunos funcionarios públicos, lamentablemente, tenían la costumbre de recibir e incluso solicitar favores a las empresas que tenían negocios con el ICE, y que esto sucedió desde antes de los hechos aquí investigados. Tampoco se ha puesto en tela de duda que [Nombre01 064] haya transferido fondos a [Nombre01 033], o a personas físicas o jurídicas cercanas a él (de hecho, hay abundante prueba documental que da cuenta de lo anterior), sin embargo, de esto no se puede derivar, con certeza, que esos fondos hayan sido para cumplir una promesa anterior, aceptada antes de la adjudicación, tal y como lo afirmó el Ministerio Público. Esto tampoco se extrae del hecho de que a varios imputados se les entregasen tiempo después de la adjudicación, sumas similares, en condiciones modales también semejantes, lo anterior en tanto que, con el mismo panorama, otros escenarios son igualmente plausibles, por ejemplo, que los dineros fuesen aceptados por esos funcionarios públicos por un actos realizados y no por haber asumido el compromiso de realizar actos futuros (lo que configuraría el delito de aceptación de dádivas por un acto cumplido y descartaría el cohecho); que hayan sido esos funcionarios los que abusando de su calidad o funciones, obligasen o indujesen la promesa o el pago del beneficio patrimonial (concusión), lo que se añade, no sería de extrañar, ya que como veremos más adelante, hubo funcionarios públicos que solicitaban ventajas económicas a las empresas proveedoras, entre ellos el mismo [Nombre01 064], quien reconoció haber hecho “gestiones de cobro” ante [Nombre01 091] para que la pagase a [Nombre 046]. Tampoco se puede descartar que existiendo una promesa anterior al procedimiento concursal abreviado 1-2001, su contenido fuese otro. Lo mismo cabe decir en cuanto a la actuación de [Nombre01 064] y otros directivos en relación con el tema, pues ciertamente, no se demostró ninguna irregularidad en el trámite del contrato de las 400.000 líneas (que, se reitera, inició algún tiempo después del momento en que [Nombre01 064] ubicó la promesa de dádiva, siendo que además, nació por haberlo dispuesto Nombre02 la Contraloría General de la Republica y no el ICE). Se insiste, el único deponente que dio cuenta de la promesa de dádiva fue [Nombre02 064] , siendo que su testimonio, por las razones apuntadas antes, además de ilícito, es poco confiable. En resumen, siendo que la declaración del imputado colaborador es prueba ilícita y además inverosímil, corresponde establecer las consecuencias de su exclusión hipotética, teniendo presente -claro está- que, en razón del efecto extensivo contemplado en el artículo 443 del Código Procesal Penal, este ejercicio se deberá efectuar para todos los imputados en relación con los cuales se ha considerado tal probanza, y no solo para quienes reclamaron su uso por parte del tribunal de mérito. Por todo lo anterior, se declara con lugar el segundo motivo de apelación de sentencia formulado por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre01 041], Nombre02 como la sección segunda punto D), y la sección tercera punto A), del recurso de apelación de sentencia formulado por el imputado [Nombre02 033], a título personal.

VI.- Consecuencias de lo antes resuelto. Si bien los vicios descritos supra (la ilegalidad del criterio de oportunidad otorgado a [Nombre01 064] y, por ende, de la declaración que este rindió en el debate, Nombre02 como el quebranto a las reglas de la sana crítica en la valoración de ese relato) tienen carácter formal o procesal, este tribunal considera innecesario ordenar el reenvío, lo anterior porque habiéndose efectuado una investigación exhaustiva, no se vislumbra posibilidad alguna de que en un eventual debate se incorporen de forma legítima otros elementos de prueba adicionales a los ya existentes y, en ese tanto, tampoco hay impedimento para que los suscritos procedan a resolver directamente lo que corresponda de conformidad con lo preceptuado en el artículo 465 del Código Procesal Penal, determinando a través del análisis de las probanzas que restan tras suprimir hipotéticamente la declaración referida, cuáles hechos de los que ha tenido por demostrados el tribunal de mérito se mantienen incólumes. Se trata de una solución que, aunque puede resultar atípica tratándose de yerros procesales, puede ser adoptada en atención del principio de justicia pronta y cumplida, ya que no tiene sentido prolongar el proceso cuando hay razones suficientes para estimar que el estado de las cosas no va variar (en ese sentido, consúltense las resoluciones de la Sala Tercera números 827-F-96, de las 12:35 horas del 23 de diciembre de 1996 y 1173-1997 de las 9:30 horas del 31 de octubre de 1997). Nombre02 las cosas, de seguido se procederá a efectuar ese estudio para cada uno de los imputados.

• 1)[Nombre01 001]: El tribunal tuvo por demostrado, en el hecho Nº 131, que [Nombre01 001] recibió de parte de los corruptores una promesa de dádiva a cambio de realizar 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 [Nombre01 091]. Con base en esto, lo consideró autor responsable de un delito de corrupción agravada por cohecho impropio. En cuanto al delito de cohecho impropio, es importante hacer algunas acotaciones. El tipo penal contempla dos acciones, a saber: i) recibir una dádiva o cualquier otra ventaja indebida para hacer, en el futuro, un acto propio de sus funciones y ii) aceptar la promesa de una retribución de esa naturaleza con el mismo propósito. Como señala Nombre66, refiriéndose a la legislación argentina que en cuanto al tema presenta algunas similitudes con la nuestra, recibe “el que entra en la tenencia material del objeto que se le entrega” y acepta “quien admite recibir en el futuro lo que se le promete”, siendo que en ambos casos se persigue la misma finalidad, específicamente, que el funcionario público realice un acto futuro concerniente a sus funciones, de ahí que se pueda sostener que la dádiva entregada para retribuir una conducta funcional ya adoptada por el funcionario no cae dentro de los límites del cohecho (así, Nombre66. Derecho Penal. Parte Especial. Buenos Aires, Editorial Astrea, Tomo II, 1° reimpresión de la 6° edición, 1998, pp. 272 y 273). En el caso de [Nombre01 001], entre ambas conductas típicas se ha tenido por configurada la segunda, pues según se indicó supra, él aceptó una promesa de retribución económica a cambio de ejecutar -acto futuro- las acciones necesarias para que [Nombre01 091] resultase favorecida en el proyecto de las 400.000 líneas GSM. Precisar lo anterior es fundamental, ya que según se ha tenido por demostrado, [Nombre01 001] recibió los fondos procedentes de [Nombre01 060] después de la adjudicación del contrato. Si la adjudicación ya se había dado, no es plausible sostener que [Nombre01 001] recibió una dádiva a cambio de favorecer a [Nombre01 091] -acción futura- en esa adjudicación y, por ende, se excluye por completo el otro supuesto contemplado en el tipo penal (a saber, recibir la retribución a cambio de comprometerse a realizar un acto futuro, propio de sus funciones). Descartada Nombre02 la hipótesis de la recepción de la dádiva, nos centramos en la que fue acusada y se tuvo por demostrada, a saber, que este imputado aceptó una promesa de dádiva anterior a esa adjudicación para favorecer en esta a [Nombre01 091]. En este caso, la condena requiere la constatación de una serie de elementos del tipo penal que son medulares, a saber, la promesa de dádiva, su contenido -el acto propio de las funciones a cambio del cual se formula la promesa- y su aceptación. Según se explica en la sentencia, de folios 15.894 a 15.980 frente del tomo XXXIII, Nombre02 como en los acápites generales de ella, referidos al marco general en torno a la contratación de las 400.000 líneas celulares GSM (f. 15.512 frente y siguientes), lo expuesto en relación con los supuestos corruptores, su identificación, la planeación delictiva, la suscripción de los contratos de consultoría por parte de [Nombre01 058]. e [Nombre01 114]. y la canalización de los dineros para el pago de dádivas y su distribución (f. 15.572 frente y siguientes), para tener por demostrada la promesa hecha a [Nombre01 001] (y aceptada por este), se consideró lo siguiente: i) [Nombre01 001] ingresó a laborar al ICE a fines del año 2000 -lo que incluso aceptó la defensa en conclusiones, f. 15.895, tomo XXXIII-, siendo que la relación laboral se formalizó en enero de 2001. [Nombre01 001] estuvo a cargo del proceso abreviado 1-2001, correspondiente a las 400 mil líneas celulares. Era el coordinador del proyecto y el que tenía relación con la empresa proveedora; ii) [Nombre01 001] admitió ante los medios de comunicación haber recibido dineros de [Nombre01 091]; iii) En la prueba, figuran tres notas confeccionadas en papel con membrete de [Nombre01 058]. En la primera, con fecha de 22 de noviembre de 2000, remitida por [Nombre01 098] a [Nombre 041] -que el tribunal de primera instancia entiende son [Nombre02 041] y [Nombre01 098]-, se afirma que se están haciendo gestiones para que [Nombre01 001], recién nombrado por [Nombre01 095], sea el interlocutor de [Nombre01 091] en las negociaciones sobre las nuevas ampliaciones, pues es una persona con la que se podrá avanzar ya que es más político y por su reciente nombramiento no está contaminado por las influencias que afectan la administración tradicional. En la segunda, fechada el 23 de noviembre de 2000 y que es continuidad de la anterior, se afirma que se logró que [Nombre01 001] lleve la batuta de la negociación a partir de ahora y que en consecuencia, se puede esperar una posición más flexible del grupo negociador del ICE. Finalmente, en la nota del 29 de noviembre de 2000, se hace referencia a la eventual negativa de la Contraloría para aceptar la propuesta de [Nombre01 095] de contratar con todos los suministradores, lo que según dice la nota, fue idea de [Nombre01 095] para evitar objeciones, pero que en todo caso, también permitía mantener a raya la pretensión de ampliar el sistema para entonces vigente y acelerar la publicación de la nueva licitación por GSM y por ende mantener viva la capacidad de pelea de [Nombre01 091] (todas estas notas, según constató este tribunal de apelación de sentencia, están visibles en la prueba Nº 686, denominada “Expediente principal de la causa Número 04-7810-0647-PE”, folios 295, 298 y 299 frente); iv) [Nombre01 041] invitó a almorzar a [Nombre01 001] el 29 de noviembre de 2000; v) en la nota interna PE-0102-P del 22 de febrero de 2002, remitida por la presidencia ejecutiva del ICE a las diferentes unidades estratégicas de negocios, se les informa que para el proceso de contratación abreviada de las 400 mil líneas se nombró una comisión coordinada por [Nombre02 001], que estaría a cargo del estudio y adjudicación del proyecto (estudio de ofertas, contestación de aclaraciones, evaluación en todos los aspectos, recomendación de adjudicación, consulta y resolución de posibles apelaciones, etcétera, trabajo que concluiría cuando el contrato estuviese refrendado), comisión que dependería de un órgano de alto nivel integrado por [Nombre01 095], [Nombre01 122] y [Nombre01 068] . Se trata de comunicados que a pesar de ser para uso interno del ICE le fueron remitidos a [Nombre 041], quien se mantenía al tanto de lo que sucedía en el ICE con el proyecto de las 400.000 líneas, en especial de las funciones asignadas a [Nombre01 001], con lo cual estuvo altamente complacido. Según el tribunal, el nombramiento de [Nombre01 001] también fue parte del plan ideado por [Nombre02 041] (f. 15.902 frente); vi) aun cuando, en efecto, [Nombre01 001] no tenía la última palabra sobre el proyecto, como sí sucedía con los Nombre10 del consejo directivo (p. ej., [Nombre01 022], [Nombre01 064] y [Nombre01 068]; el segundo que aceptó haber recibido dádivas de [Nombre01 091] y el último que fue condenado por hechos de similar naturaleza), para esta empresa era imprescindible contar con el coordinador del proyecto, garantizándose Nombre02 que actuase a su favor. Hablamos de quien tenía acceso a cualquier información y cuya opinión además tenía un gran peso ante funcionarios como [Nombre01 095], [Nombre01 122] y [Nombre01 068], quienes finalmente tomaron la decisión y la llevaron al seno del consejo directivo. Es importante recordar, indica el fallo, que [Nombre01 068], al igual que [Nombre01 105], fueron condenados por la comisión de delitos relacionados con el ofrecimiento y recepción de dádivas procedentes de [Nombre01 091]; vii) para el tribunal, desde antes de su nombramiento como asistente en la presidencia ejecutiva del ICE y luego como coordinador del proyecto de las 400 mil líneas, [Nombre01 041] y [Nombre01 028] conocían a [Nombre02 001] como una persona más política, con la que se podía avanzar, de ahí que fuese el adecuado para el plan propuesto. Por ello, una vez que este asumió el cargo de coordinador, en atención a sus funciones, [Nombre01 041] y [Nombre01 078] le prometieron el pago de una dádiva a cambio de que realizara las acciones necesarias dentro del ámbito de sus deberes para hacer efectiva la contratación favoreciendo los intereses de [Nombre01 091] ; viii) el tribunal ponderó que el nombramiento de [Nombre02 001] tuvo lugar en noviembre de 2000, cuando ya estaba en el seno del consejo directivo la inquietud de migrar hacia la tecnología GSM, lo que aunado a los conflictos suscitados entre [Nombre01 091] y el ICE que se explicaron ampliamente en la sentencia, hacían necesario contar con adeptos a la causa de [Nombre01 091], propósito que se logró al prometer dádivas a [Nombre01 022], [Nombre01 064] , [Nombre01 068] y el mismo [Nombre02 001]. También retomó el a quo el tema de la denominada “propuesta de acción” de [Nombre01 124], en el sentido de que eran recomendables acercamientos entre la empresa y personas de distintos ámbitos y bandos, empresarial, religioso y político, sugerencia que tomó [Nombre01 041] como representante de [Nombre01 091] en Costa Rica para llevar a cabo un plan que incluía un acercamiento a [Nombre01 001] y a otros imputados en este proceso; ix) finalmente, se ponderó la existencia de abundante prueba que permite demostrar con certeza que [Nombre01 001] recibió y dispuso de las dádivas procedentes de [Nombre01 060]. Además de lo ya expuesto, al examinar la situación de [Nombre 022], el tribunal de mérito citó otros indicios que, según entiende, también comprometen a [Nombre01 001], a saber: x) un oficio de [Nombre 126], fechado 17 de febrero de 2005, donde consta que [Nombre01 091] inició relaciones con este empresa en enero de 2000 y que, según sus registros, [Nombre01 105], [Nombre 064], [Nombre02 001] y [Nombre01 022] usaron sus servicios, lo que permite concluir que tres de las personas favorecidas con los viajes, eran funcionarios del ICE, viajes que se dan luego del refrendo del contrato de las 400.000 líneas y por ende, no son ajenos a este tema (f. 15.845 y 15.846 frente, tomo XXXII); xi) la promesa de dádiva se prueba también a través del dicho de [Nombre01 064]. Este, dice el tribunal de mérito, es verosímil, pues a pesar de algunas diferencias con sus relatos anteriores, en los puntos relevantes se ha mantenido igual. Según [Nombre01 064], [Nombre01 041] y [Nombre01 078] le ofrecieron un premio si ayudaba en tres áreas, a saber, migración a GSM, uso de licitación o concurso público y voto favorable a [Nombre01 091]. Dice el tribunal que si esto era una práctica constante, no es extraño que se hayan acercado a otros funcionarios como [Nombre01 022] o a [Nombre01 001] (f. 15.862 a 15.864 frente, tomo XXXII). Ejercicio de supresión mental hipotética de la declaración de [Nombre01 064] y examen de los indicios restantes con apego a las reglas de la sana crítica: Como señaló la licenciada Greysa Barrientos Núñez en la audiencia oral celebrada en este asunto, no hay dudas acerca de que los personeros de [Nombre01 091] pensaban que la empresa estaba siendo excluida del mercado de telefonía móvil y que diseñaron un plan para lograr posicionarse en ese ámbito. Como acertadamente se explica en la sentencia, el ICE dio sus primeros pasos con tecnología TDMA, la cual es una tecnología cautiva, pues las ampliaciones de la red solo se podían hacer con equipos producidos por las mismas compañías que ofertaban esa tecnología y que en el caso de nuestro país, eran Lucent Tecnologías de Costa Rica S.A. y Ericsson, empresas que eran contratadas por el ICE bajo la modalidad de compras directas, lo que impedía que otras empresas tuviesen acceso a ese mercado, p. ej. [Nombre01 091], empresa que proveía al ICE de equipos para telefonía fija, siendo que además [Nombre01 091] ofrecía equipos de tecnología GSM (cfr. folios 15.540 y 15.541 frente, tomo XXXII). Con base en la declaración de varios deponentes (p. ej., [Nombre01 095], [Nombre01 128], [Nombre01 132] , entre otros), en el fallo recurrido se concluyó que para los años 1999 y 2000 la tecnología GSM se posicionaba en el mundo; que en 1999 había una relación “tensa” entre [Nombre01 091] y el ICE y que durante el año 2000, [Nombre01 091] luchó por ser un competidor más en el mercado de telefonía móvil. Esta empresa, además de explicar a la junta directiva del ICE las bondades de migrar a la tecnología GSM (al parecer con poco éxito, pues aunque se admitían esas bondades, se continuaba con las contrataciones directas, algunas que también cuestionó [Nombre01 091], p.ej., la contratación directa de 100.000 líneas en el año 2000, f. 15.563, tomo XXXII), diseñó toda una estrategia que implicó hacer del asunto un tema de dominio público y de interés nacional, razón por la cual se contactó con personas de distintos ámbitos, p. ej., legisladores, formadores de opinión, políticos, medios de comunicación y órganos públicos de control (v.g., la Contraloría General de la República), entre otros, a fin de denunciar lo que consideraban prácticas ayunas de transparencia, siendo que a raíz de estas acciones, indica el voto de mayoría, [Nombre01 095], el 6 de octubre de 2000, anunció públicamente la migración a la tecnología GSM, lo que en todo caso ocurrió unos meses después (cfr. 15.540 a 15.572 frente, tomo XXXII). De la misma manera, no hay dudas acerca de que varios funcionarios públicos recibieron sumas de dinero de la citada empresa, en circunstancias de modo y tiempo similares. Esto, sin embargo, no basta para tener por demostrado, tal y como lo hizo el voto de mayoría recurrido, con un grado de certeza y no de probabilidad, que los pagos efectuados tiempo después de la adjudicación fueron producto de una promesa de retribución formulada previamente y aceptada por [Nombre01 001], a cambio de que este ejecutase actos propios de su cargo para favorecer a [Nombre01 091] con el contrato de las 400.000 líneas . Según la sentencia recurrida, el nombramiento de [Nombre01 001] fue parte del plan corruptor. Sin embargo, examinado el tema, se establece con facilidad que esta conclusión no se deriva de las pruebas y que por ende, quebranta las reglas de la sana crítica. La designación de [Nombre01 001] la hizo [Nombre01 095], persona que nunca fue involucrada en la trama criminal. Además, según explicó [Nombre01 095], lo que pretendía con esa designación era contar con una persona más dispuesta al diálogo, que permitiese recuperar la paz tras los hechos que se dieron con el denominado combo eléctrico. Así, [Nombre01 095] indicó: “A [Nombre01 001] lo nombré directamente yo, llegó a la institución como un especialista en solución de conflictos y ayudó mucho en el proceso de recuperar la paz laboral a raíz de los hechos que se dieron con el combo eléctrico. [Nombre01 001] llegó muy cerca de mi llegada al ICE, parte de la problemática que tenía la institución en ese momento era satisfacer el servicio eléctrico y en telecomunicación. A [Nombre01 001] lo conocí en la Universidad Nacional, en la Escuela de Planificación, se me presentó, me describió sus características y habilidades y yo creí que él nos podía ayudar a recuperar la paz social en la institución. Yo no pedí referencias de él, me fue suficiente con la entrevista. Me pareció que él tenía mucha capacidad en el tema de resolución de conflictos y escuchar posiciones y dar solución a los conflictos y Nombre02 lo demostró. Yo andaba buscando rescatar la paz laboral en la institución y por eso [Nombre01 001] me pareció bien. Yo no sabía si él tenía conocimiento en telecomunicaciones; él era un asesor de la Presidencia Ejecutiva, coordinaba las reuniones con los diferentes grupos sindicales, percibía las inquietudes de esos grupos.” (Nombre67. 14.712 frente, tomo XXX). El mismo tribunal reconoció que fue [Nombre01 095] quien llevó a [Nombre01 001] a trabajar en la institución desde los últimos meses del año 2000, siendo en enero de 2001 en que se formalizó su designación como Asistente Ejecutivo en la Presidencia Ejecutiva (f. 15.894 a 15.896, tomo XXXIII). Por todo lo anterior, yerra el voto de mayoría al señalar que desde antes de su nombramiento y luego como coordinador del proyecto de las 400.000 líneas, [Nombre01 041] y [Nombre01 028] conocían a [Nombre02 001] como una persona más política y por tanto, adecuado para el plan propuesto, al punto de llegar a sostener que la designación de este funcionario público fue parte de la estrategia seguida por los corruptores. Por otra parte, aunque -en efecto- [Nombre01 001] fue el encargado del proceso abreviado 1-2001 correspondiente a las 400.000 líneas celulares, es importante señalar que este se originó en el año 2001, no por interés del ICE o de sus jerarcas, sino porque Nombre02 lo planteó la Contraloría General de la República, siendo que, además, esa circunstancia no demuestra que se le haya cursado una promesa de retribución económica a finales del 2000 o inicios del 2001, como lo aseguró el tribunal de mérito. Esto tampoco se extrae del almuerzo que tuvo [Nombre01 041] con [Nombre02 001] el 29 de noviembre de 2000, o de los contactos que hubo entre el citado funcionario público y los empleados de [Nombre01 091], ya que según aceptó el mismo tribunal y se demostró con abundante prueba, que incluso documenta los abusos de parte de funcionarios públicos que solicitaban regalías a las empresas proveedoras desde tiempo atrás (ej., caso de [Nombre01 022]), ese tipo de encuentros eran frecuentes (f. 16.112 frente, tomo XXXIII). Nombre11 en esta línea de ideas, también es claro que [Nombre01 001] aceptó ante un canal de televisión nacional haber recibido dinero de [Nombre01 091], no obstante, nunca explicó por cuál concepto. De esta manera, lo único que puede derivarse de la citada prueba es la aceptación del dinero, que, no se omite indicar, también se probó a través de abundante prueba documental, sin embargo, no se trata de un indicio del que se derive, como un hecho cierto, que a [Nombre01 001] se le cursó una promesa de retribución anterior a la adjudicación. Otro tanto se puede señalar en cuanto a las notas examinadas en la sentencia y que se mencionaron atrás. De la primera de ellas, fechada 22 de noviembre de 2000, lo que se desprende es que el nombramiento de [Nombre01 001] fue responsabilidad de [Nombre01 095], con lo cual, se reitera, no podría afirmarse que la citada designación fue también parte del plan criminal. Además, en esa nota lo que se indica es que la designación buscaba acelerar las cosas en los planes de expansión del ICE, tanto en telefonía fija como celular y que se estaban haciendo negociaciones para que fuese [Nombre01 001] el interlocutor de [Nombre01 091] en las negociaciones sobre nuevas ampliaciones, ya que por ser una persona “más política” y por su reciente nombramiento, no estaría contaminado por “las influencias que afectan a la administración tradicional”, de ahí que fuese posible avanzar más. Como se observa, se trata de una nota en la que tan solo alude a las características de [Nombre01 001] como negociador, incluso favorable a los intereses del imputado en la medida en que se le considera libre de influencias y de la que además no se desprende, ni por asomo, que haya existido una promesa de retribución económica, o que se trate al menos de un funcionario público que estuviese anuente a prestar colaboración a la empresa con el contrato tantas veces mencionado, máxime si considera que en la prueba analizada se hace mención tanto a la telefonía fija como a la celular. Como si lo anterior no bastase, hay que tomar en cuenta que para el 22 de noviembre de 2000 el contrato de las 400.000 líneas no había nacido a la vida jurídica y que, por tanto, [Nombre01 001] no había sido designado encargado de la ejecución del proyecto. Otro tanto hay en relación con la nota fechada 23 de noviembre de 2000 en la que sencillamente se afirma que [Nombre01 001] será el que lleve la batuta de la negociación con [Nombre01 091] y se habla de contrataciones directas con esa empresa, aspectos que no abonan a la demostración de la promesa previa en relación con el contrato de las 400.000 líneas, o a la demostración del contenido de esa promesa. Finalmente, en cuanto a la nota del 29 de noviembre de 2000, hablamos de una misiva en la que “[Nombre02 098]” (entendemos, [Nombre01 098]), le comunica a “ [Nombre01 041]” ([Nombre01 041] ) lo siguiente: 1.- que se ha introducido con éxito la idea de incluir a todos los suministradores y que “[Nombre01 095]” (entiende esta cámara, [Nombre01 095]) cree que podrá convencer a la Contraloría para que apruebe un esquema que permita contratar con todos, Nombre17 Nombre02 objeciones; 2.- que aunque él ([Nombre01 098]) piensa que esto no será posible, reconoce que con esto se logra mantener a raya la pretensión de ampliar el sistema actual, acelerar la publicación de la nueva licitación en tecnología GSM y mantener la capacidad de pelea de [Nombre01 091] ; 3.- que [Nombre01 001] le comentó que los suecos (entiéndase, Ericsson) están muy dolidos por haber perdido el control de las cosas y que no están dispuestos a ceder a [Nombre01 091] la supremacía en el área metropolitana; 4.- que [Nombre01 091] no debe ceder nada de lo logrado, que Siemens y Nortel están entrando en el esquema gracias al esfuerzo de [Nombre01 091] y que el ICE sabe que sin la anuencia de esta empresa no podrá avanzar. Se trata de una nota que tampoco permite vislumbrar la formulación de una promesa a [Nombre01 001] a cambio de efectuar las acciones necesarias dentro del ámbito de sus funciones para hacer efectiva la contratación de las 400.000 líneas favoreciendo a [Nombre01 091]. A lo sumo, confirma que [Nombre01 001] había conversado con [Nombre01 098] para noviembre de 2000, fecha en la que -se reitera- ni el contrato de las 400.000 líneas había nacido a la vida jurídica, ni el imputado había sido designado encargado de su ejecución. Dice el a quo en su voto de mayoría, que otro indicio en contra de [Nombre01 001] es que a otros funcionarios públicos se les cursó la misma promesa y que aceptaron dineros de [Nombre01 091]. En cuanto a esto, nótese que aunque -en efecto- hay prueba que permite establecer de manera categórica que [Nombre01 001], al igual que otros imputados, recibieron dineros originados en esa empresa, no la hay para tener por acreditada, al menos no con grado de certeza, una promesa de dádiva anterior a la adjudicación, al punto de no ser plausible descartar otras hipótesis, por ejemplo, que sin existir promesa anterior, [Nombre01 001] haya aceptado la retribución económica por un acto cumplido, o que fuese él quien indujese a los personeros de [Nombre01 091] o darle o prometerle una retribución económica. Para los suscritos, únicamente considerando la declaración de [Nombre01 064], que fue explícito en cuanto al tema, cabía sostener que otros funcionarios públicos recibieron promesas de dádiva y, en ese tanto, hacer razonable la conclusión del a quo, en el sentido de que [Nombre01 001] también la recibió. Suprimiendo esta declaración, lo que resta en cuanto al punto es una sentencia dictada en contra de [Nombre01 068], sin embargo, de esta tampoco puede derivarse un juicio de certeza acerca de que [Nombre01 001] recibió la citada promesa, ya que la resolución referida se dictó en el contexto de un procedimiento abreviado, donde el imputado -[Nombre01 068]- se limitó a aceptar los hechos atribuidos y la sanción acordada (cfr. prueba Nº 747, legajo denominado Copia certificada de la sentencia Nº 586-07 Expediente 06-000045-621-PE Delito corrupción agravada, contra [Nombre01 068]). Aunque en efecto, en esa sentencia se tiene por demostrado que [Nombre01 105], contando con la colaboración de [Nombre01 046], le ofreció a [Nombre01 068] una promesa de dádiva a cambio de votar a favor de la empresa [Nombre 091] en la licitación de las 400.000 líneas, promesa que [Nombre01 068] aceptó, esto no permite tener por demostrado que a [Nombre01 001] se le cursó la misma promesa, ya que la aceptación que realizó [Nombre01 068] de esos hechos tiene un carácter personal y, además, formal, al tratarse de un requisito para que el procedimiento abreviado se pueda aplicar, con lo cual su trascendencia probatoria, al menos para lo que a este proceso respecta, es bastante limitada, argumentos que son justamente los mismos que cabe exponer en relación con la sentencia condenatoria N° 260-09, dictada en contra de [Nombre02 105] por el delito de penalidad del corruptor, sentencias que el mismo fallo recurrido reconoce, solo han sido consideradas “…en relación con quienes se sometieron a tales procedimientos y únicamente con el tipo de delito por el que resultaron condenados, la sanción, partes y eventuales reparaciones u otros datos meramente referenciales, sin que en ningún caso se valoren los hechos probados y demás contenido.” (F. 15.767 y 15.768 frente, tomo XXXII). A mayor abundamiento, según se afirma en la citada resolución, [Nombre01 068] recibió una oferta de parte de [Nombre02 105] y del mismo [Nombre 046], siendo que tratándose de los demás justiciables, entre los cuales está [Nombre01 001] , la formulación de las promesas se imputan a otros personajes, específicamente, a [Nombre01 078] o a [Nombre01 041], con lo cual tampoco podría afirmarse que son situaciones idénticas, con el propósito de asignar a esa sentencia un valor que no tiene. En cuanto a la denominada ruta de acción elaborada por [Nombre01 124], lo primero que hay que indicar es que en este documento no se contempla la realización de hechos criminales, sino tan solo la necesidad de que [Nombre01 091] recabase apoyos en diferentes ámbitos del quehacer nacional (sector empresarial, iglesia católica, partidos políticos, etc.). Además, de él tampoco se deriva razonablemente que [Nombre01 041] y [Nombre01 078] le haya cursado una promesa de dádiva a [Nombre02 001]. Tal y como se ha venido señalando, no hay dudas acerca de que [Nombre01 001] aumentó de forma ilegítima su patrimonio y que hizo una serie de transacciones dirigidas a distanciar los fondos recibidos tanto de su origen como de su persona (lo que es un elemento más para confirmar que él conocía el carácter irregular de esos fondos), sin embargo, para declararlo autor responsable del delito de cohecho impropio en su modalidad de corrupción agravada, no basta con tener por demostrado lo anterior, incluso no basta con tener por demostrado que el dinero que recibió de parte de [Nombre01 091] tenía alguna relación con el tema de las 400.000 líneas, sino que era indispensable acreditar que [Nombre01 001], con anterioridad a la adjudicación, aceptó una promesa de retribución económica a cambio de que realizara las acciones necesarias dentro del ámbito de sus funciones para hacer efectivo el contrato de las 400.000 líneas favoreciendo a [Nombre01 091] , lo que Nombre05 lógicamente, también descartar fehacientemente otras hipótesis igualmente admisibles, por ejemplo, que sin mediar la citada promesa, aceptó las sumas que le fueron trasladadas por actos cumplidos en su calidad de funcionario público, o que fue él quien indujo a [Nombre01 041] a darle o prometerle la citada retribución económica, lo que además de no haber sido descartado, tampoco fue acusado. Siguiendo este análisis, indica el tribunal que la prueba Nº 75, folios 324 y 325, nota PE-0102-P de 22 de febrero de 2002, es importante porque a pesar de ser de uso interno del ICE, le fue remitida a [Nombre01 041] y a la empresa [Nombre 091] en Francia, lo que permite corroborar que aquel estaba al tanto de lo que sucedía en torno al proyecto de las 400.000 líneas de tecnología GSM y de las funciones que se le habían asignado a [Nombre01 001] como coordinador del proyecto. Se afirma incluso, con base en esa prueba, que el nombramiento de [Nombre01 001] en ese puesto fue parte del plan ideado por [Nombre01 041]. Los errores en estos razonamientos son obvios. Como ya se indicó, el nombramiento de [Nombre01 001] no era resorte de [Nombre01 078], de [Nombre01 041] o de [Nombre01 028]. Además, se desconoce quién remitió esa nota interna a [Nombre01 041] y a [Nombre01 137]. Finalmente, pero no menos importante, es destacar que la prueba en cuestión tampoco agrega nada al tema de la promesa anterior, ya que en esta tan solo se mencionan los Nombre10 de la comisión que tendría a cargo el proyecto de las 400.000 líneas y los de la comisión de alto nivel de la que aquel grupo de trabajo dependería directamente, integrada -la de alto nivel- por [Nombre01 095], [Nombre01 122] y [Nombre01 068]. Es decir, como se establece sin ningún esfuerzo y reconoce el mismo a quo en la sentencia impugnada, [Nombre01 001] no tenía la última palabra sobre el proyecto, ya que había otro grupo de trabajo controlando el tema -la denominada comisión de alto nivel- y claro está, el mismo consejo directivo de la institución, siendo una especulación del órgano de mérito el concluir que, a pesar de esto, los corruptores prácticamente “designaron” a [Nombre01 001] como parte del plan criminal y que aquel era imprescindible ya que, además de acceso a la información, tenía “peso” ante funcionarios como [Nombre01 095] , [Nombre01 122] y [Nombre01 068]. Del mismo modo, carece de todo fundamento lo que señala el a quo en hecho demostrado Nombre68° 132, a saber, que [Nombre01 001] cumplió con las acciones acordadas y que una vez “que logró” junto con otros funcionarios del ICE 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 [Nombre01 091], recibió la dádiva prometida , lo anterior porque [Nombre01 001] era un mando medio, que carecía del poder de decidir en cuanto al tema antes mencionado; porque el contrato de las 400.000 líneas (proceso concursal abreviado 1-2001) surgió en el seno de la Contraloría General de la República y no en el ICE, que hasta entonces había optado por las contrataciones directas, y, finalmente, porque [Nombre01 091] fue favorecida con el contrato de manera legítima, tras cumplir con todos los requerimientos y haber sido recomendada en los estudios respectivos y no por las acciones particulares de [Nombre01 001] (quien, se reitera, no tenía el poder de abrir el concurso o de adjudicar el contrato), o de cualquier otro imputado. De hecho, en la misma sentencia se afirma que: “En el acta de sesión del Consejo Directivo del ICE Nº 5326 de 28 de agosto de 2001 de folios 4191 a 4215 (prueba Nº 2), consta que la fecha para recibir ofertas en relación con el Proceso Abreviado 01-2001 para la adquisición de 400.000 soluciones telefónicas inalámbricas en la banda 1800 Mhz con tecnología GSM, se fijó para el día 20 de julio de 2001 y que únicamente se presentaron dos oferentes: Consorcio Ericsson II y oferta conjunta entre [Nombre02 060] y Banco Centroamericano de Integración Económica (BCIE). Igualmente se desprende de la citada acta que la oferta formulada por el Consorcio Ericcson II presentaba defectos técnicos por lo que fue descalificada, mientras que la oferta que presentaron en forma conjunta [Nombre01 060] y BICIE cumplía con todos los requerimientos del cartel, por lo que se acordó en forma unánime adjudicar el Procedimiento Concursal Abreviado 01-2001 para el arrendamiento con opción de compra de los equipos necesarios para que el ICE brindara 400.000 soluciones integrales telefónicas inalámbricas con tecnología GSM en la banda de 1800 Mhz, más los servicios y componentes asociados, a la oferta conjunta formulada por [Nombre01 060] y BCIE. En relación al extremo de la adjudicación referido, los testigos [Nombre 095] , Presidente Ejecutivo del ICE, [Nombre01 287] y [Nombre01 195], Presidente y Directores del ICE en esa misma oportunidad, declararon coincidentemente que el adjudicatario del concurso de las 400.000 líneas fue la empresa [Nombre 091] , lo que se decidió por unanimidad, contando con el resultado de un análisis de estudio por varios sectores interdisciplinarios de la institución, siendo que todos ellos recomendaban la adjudicación a la citada empresa. Al mostrarle al testigo [Nombre01 095] el acta de la Sesión del Consejo Directivo del ICE Nº 5326, folios 3533 a 3557 del Tomo IX (prueba Nº 3), dijo que reconocía ese documento y que la decisión del Directorio fue unánime para otorgar esa licitación a [Nombre01 091] . Finalmente declaró que con la adjudicación de esas 400.000 líneas se resolvió en gran parte la demanda de líneas móviles, que no sabe si le generaron superávit al ICE pero que la negociación fue positiva y justificó la necesidad de migrar a la tecnología GSM en la necesidad de brindar nuevos y mejores servicios al usuario con nuevas tecnologías, extremo en el que también coincidieron los exdirectivos [Nombre01 287] y [Nombre01 195]. La empresa Ericcson, no conforme con la adjudicación de la licitación de las 400.000 líneas y la descalificación de que había sido objeto, procedió a interponer recurso de apelación contra la decisión del Consejo Directivo del ICE, el cual presentó ante la Contraloría General de la República el día 14 de septiembre de 2001, según sello de recibido del recurso, el cual consta en el ampo 5C de la prueba Nº 640, folios 2357 a 2297. El citado recurso de apelación fue declarado sin lugar por la Contraloría General de la República el día 17 de diciembre de 1991, según resolución R.C.N. 796-2001, visible a folios 3303 a 3219 del ampo 7C de la prueba documental Nº 640. La prueba Nº 640 contiene una copia certificada del expediente administrativo completo del Procedimiento Concursal Abreviado Nº 01-2001…” (La transcripción es literal, f. 15.570 y 15.571 frente, tomo XXXII, el subrayado no es del original). En suma, la prueba lícita analizada integralmente es insuficiente para tener por configurado el delito de corrupción agravada en su modalidad de cohecho impropio. Sin la declaración de [Nombre01 064] a modo de hilo conductor, lo único que resta es una serie de indicios anfibológicos en cuanto a la promesa de retribución económica que, según la acusación, cursó [Nombre01 041] a [Nombre01 001] en relación con el proyecto de las 400.000 líneas. Esta conclusión no cambia si se consideran, como ya se explicó, las sentencias condenatorias dictadas en contra de [Nombre01 068] y [Nombre01 105], ya que en estas lo único que se aprecia es una aceptación personal y formal de cargos, que en modo alguno resulta suficiente para afincar el citado juicio de certeza. Incluso, si bien del puesto que ocupó [Nombre01 001] en el ICE podemos extraer con un grado de alta probabilidad que la retribución económica que recibió tenía alguna relación con el tema de las 400.000 líneas, sin el testimonio del imputado colaborador no cabe asegurar con certeza que hubo una promesa anterior y, menos todavía, que la entrega de la dádiva estaba condicionada a la efectiva adjudicación de la oferta que presentaría [Nombre02 091] al ICE, tal y como lo asegura el a quo en el hecho demostrado número 131 (f. 15.455 frente). Sin esa declaración, cabe insistir, tampoco se pueden descartar otras hipótesis fácticas que no fueron objeto de imputación, v.g., que la retribución económica admitida por [Nombre01 001] le fuese otorgada sin promesa anterior, por un acto cumplido en su condición de funcionario público (tal y como lo había dicho originalmente [Nombre01 064] ), o incluso que haya sido [Nombre01 001] quien obligó o indujo a los personeros de [Nombre01 091] a darle o prometerle un determinado beneficio patrimonial, o que existiendo una promesa anterior, tuviese un contenido diferente. Nombre11 en esta línea de ideas, es importante acotar que, si bien [Nombre01 041] admitió ante [Nombre01 116] haber pagado a funcionarios públicos, entre ellos ha [Nombre01 001], nunca admitió haber formulado una promesa previa a cambio de que [Nombre01 091] obtuviese el contrato de las 400.000 líneas. Todo lo contrario, lo que describe [Nombre01 116] es que, según un borrador de declaración remitido por [Nombre01 041], este indicó que fueron [Nombre01 064] y otros funcionarios públicos quienes le solicitaron los premios por haber ayudado en la apertura de licitaciones públicas en lugar de contrataciones directas (f. 15.157 frente, tomo XXXI). Si bien es cierto que, según la misma testigo, en la reunión celebrada [Nombre01 041] no refirió esta circunstancia (cfr. mismo folio), lo indicado en el mencionado borrador (que es introducido al debate mediante el testimonio de [Nombre01 116]) abona a las dudas que tienen los suscritos en cuanto a si la promesa de dádiva anterior a la adjudicación efectivamente tuvo lugar. En cuanto al oficio de [Nombre02 126], en el cual se indica que esa agencia facturó a cargo de [Nombre01 091], el 24 de abril de 2002 y a Nombre01 de [Nombre 001], lo correspondiente a “Visa a Cuba y cancelación de reserva” (cfr. f. 1771, tomo V, que hemos tenido a la vista), véase que, contrario a lo que señala el tribunal, de él no se desprende que la promesa de dádiva haya existido. Al igual que sucede con los dineros que recibió [Nombre01 001], la ventaja económica suministrada a través de Nombre69 fue admitida tras la adjudicación de las 400.000 líneas y, aunque se pueda presumir que se relaciona con ese tema, no se puede descartar que haya sido recibida como retribución por un acto cumplido sin promesa anterior, o que haya sido requerida por el mismo funcionario público. Finalmente, es importante añadir que aunque al examinar el caso particular de [Nombre02 001], el tribunal de mérito no hizo una larga mención al dicho de [Nombre01 064], de la lectura integral del fallo y de lo dicho en cuanto a [Nombre01 022], se extrae que esa declaración jugó un papel medular en ambos casos, al extremo de que no obstante que [Nombre01 064] manifestó desconocer si otros funcionarios públicos habían recibido promesas similares, el a quo se valió de esa prueba para concluir que Nombre02 sucedió, conclusión que esta cámara no puede avalar en esta fase procesal, ya que como se ha venido indicando, el relato del imputado colaborador además de ilegal, es inverosímil. Nombre02 las cosas y descartado, por ser imposible de demostrar, que a [Nombre01 001] se le haya cursado una promesa de dádiva, lo que se debe analizar es si es posible tener por configurado otro delito, específicamente, el de enriquecimiento ilícito. En primer término, lo que hay que señalar es que se trata de un delito residual frente a otros más complejos, de ahí que no haya impedimento para que, no pudiéndose demostrar estos (p. ej., el cohecho impropio o propio, la aceptación de dádivas por un acto cumplido, la concusión, etcétera), se aplique la figura básica, Nombre11 y cuando sus elementos se hayan contemplado en la acusación que formuló el órgano requirente y se hayan tenido por demostrados en la sentencia. La respuesta a dicha interrogante es negativa. El tipo penal de enriquecimiento ilícito previsto en el numeral 346 inciso 3) del Código Penal vigente para la fecha de los hechos, señalaba: “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 fueron presentadas u ofrecidas en consideración a su oficio, mientras permanezca en el ejercicio del cargo; (…)”. Como se extrae de lo anterior, la acción descrita en el inciso 3) contiene dos conductas alternativas, a saber, la aceptación de dádiva ofrecida y la aceptación de dádiva presentada. En el primer supuesto la admisión, que alude a la recepción material de la ventaja económica ocurre, al igual que la presentación, mientras el sujeto activo permanece en el ejercicio del cargo. En el segundo, la admisión o aceptación está referida al ofrecimiento, donde esas acciones -el ofrecimiento de la dádiva y su aceptación- son las que deben darse durante el ejercicio del cargo. Como el delito se consuma con la admisión del ofrecimiento, la recepción material de la dádiva, si es que se da, configurará un acto posterior impune, siendo por esto intrascendente si tiene lugar mientras el funcionario público ejerce el cargo que motivó la retribución económica, o si para entonces, lo había dejado. Aclarado lo anterior, nótese que de la relación de hechos demostrados que subsiste tras suprimir hipotéticamente el ofrecimiento de una retribución económica anterior a la adjudicación del contrato de las 400.000 líneas, lo único que queda es que [Nombre01 001] admitió las dádivas que le fueron entregadas en consideración a su oficio. Hablamos de un comportamiento que, a lo sumo, se aviene con el primer supuesto del enriquecimiento ilícito antes descrito, entiéndase, la admisión de la dádiva presentada. Sin embargo, ni en la acusación formulada por el órgano requirente, ni en la sentencia, se aclaró si esa admisión tuvo lugar mientras el imputado ocupaba el cargo, elemento que también forma parte de la descripción típica y que en el caso particular es de suma importancia, ya que algunas retribuciones económicas las habría admitido cuando había dejado la función pública (a saber, la recibida el 7 de mayo de 2004, por veinticuatro mil dólares -hecho probado N° 167- y la recibida el 29 de julio de 2004, por veinticinco mil dólares -hecho probado N° 170-). Es importante añadir que si bien, al examinar la situación de este imputado, el tribunal de mérito indicó que dejó el cargo el 10 de marzo de 2004 (f. 15.895 frente, tomo XXXIII), por no ser este un extremo contenido en la imputación formulada por el Ministerio Público, no podría ser incorporado a los hechos demostrados sin lesionar el principio de correlación entre acusación y sentencia. Pero es que, incluso si se asume hipotéticamente que la citada información sí estaba disponible, especificándose cuáles montos recibió mientras era asistente ejecutivo de la presidencia ejecutiva del ICE y cuáles no (y se subraya el carácter hipotético de la situación), la acción penal, tratándose del delito de enriquecimiento ilícito, estaría prescrita. El delito en cuestión es sancionado con pena de prisión de 6 meses a 2 años, es decir, su plazo de prescripción, según el artículo 31 inciso a) del Código Procesal Penal es de 3 años y se redujo a 18 meses con la primera imputación formal (artículo 33 inciso a) del mismo cuerpo normativo), acto procesal que ocurrió el 8 de octubre de 2004 (f. 316 a 324 frente, tomo I). Es decir, el plazo de 18 meses venció el día 8 de abril 2006, siendo que para entonces no había ocurrido ningún acto procesal que tuviese por disposición legal, la virtud de interrumpir o suspender su conteo. Además, la resolución que declaró de tramitación compleja esta causa adquirió firmeza el 26 de junio de 2006, fecha para la cual la acción penal ya se encontraba prescrita. Es importante añadir que si bien la Sala Tercera, en la resolución Nº 1847-2014, indicó que de conformidad con el artículo 376 del Código Procesal Penal, la firmeza de la resolución que declara el asunto de tramitación compleja modifica la condición reductora de los plazos prescriptivos , al extremo de eliminar la reducción a la mitad del plazo de prescripción que esté en curso, también añadió que “… la única excepción a ese razonamiento, se habría presentado en el supuesto en el que el plazo fatal prescriptivo hubiera fenecido antes de ese dictado, ya que en ese supuesto habría acaecido la extinción de la acción penal por prescripción, al tornarse esa circunstancia como una situación jurídica consolidada, a la que no habría podido aplicarse los efectos del artículo 376 antes citado …” (Cfr. considerando IV.-, resolución Nº 1847-2014, el subrayado no es del original). Esto es justamente lo que sucede aquí, pues tendríamos que para la fecha en que la resolución que declaró el proceso de tramitación compleja quedó firme (a saber, el 23 de junio de 2006), la acción para perseguir penalmente el delito de enriquecimiento ilícito ya habría prescrito y, en ese tanto, había una situación jurídica consolidada no modificable por la aplicación del numeral 376 mencionado. Finalmente, esta conclusión no varía ni en un ápice si se considera el artículo 62 de la ley N° 8422, Ley contra la corrupción y el enriquecimiento ilícito en la función pública, publicada en La Gaceta Nº 212 de 29 de octubre de 2004. El citado artículo dispone: “ 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.” (El destacado no es del original). De esta norma, en especial del inciso a), se extrae que tratándose de delitos contra los deberes de la función pública y los previstos en la ley N° 8422, al darse cualquiera de los actos señalados por el Código Procesal Penal como interruptores del cómputo del plazo de la prescripción, el conteo empieza a correr de nuevo de forma completa (es decir, sin efecto reductor), lo que constituye una excepción al artículo 33 del Código recién mencionado. Se trata de un artículo que es aplicable a los actos procesales realizados a partir de su entrada en vigencia, descartándose por tanto su aplicación retroactiva a actos anteriores. Y es que justamente, se le estaría dando aplicación retroactiva a dicha norma si, por ejemplo, se sostuviera que el artículo 62 inciso a) [que -se reitera- entró en vigencia el 29 de octubre de 2004] suprimió la reducción del plazo de prescripción a la mitad que operó con el acto interruptor realizado días antes, a saber, el 8 de octubre de 2004, cuando [Nombre01 001] compareció a rendir su declaración indagatoria. Es importante aclarar que la citada postura es avalada por la misma Sala Tercera en la resolución N° 1847-2014 citada atrás, lo anterior en tanto concluyó que, por no ser conforme con la Constitución Política el dar efectos retroactivos a las normas procesales, solo con respecto a los imputados que fueron indagados con posterioridad a la entrada en vigencia de la ley N° 8422, sí les resultaba aplicable el artículo 62 de esta, según el cual según el cual el plazo de prescripción, tras un acto interruptor, debía contabilizarse completo y no reducido a la mitad (f. 176.429 a 176.431, tomo XLIII). Esta situación solo se presenta en los casos de [Nombre01 018] y [Nombre01 006], de modo que solo con respecto a ellos se apuntó una razón más a las ya dadas por ese tribunal, para sostener que la acción penal no estuviese prescrita. En igual sentido al ya expuesto, se ha pronunciado el Tribunal de Casación Penal de San José, por ejemplo, en la sentencia N° 132-2006, de las 10:30 horas del 23 de febrero de 2006, que en lo que interesa, indica: “Ya la jurisprudencia de este Tribunal (así votos No. 391-1999, No. 372-2001 y No. 1058-2001), lo mismo que la de la Sala Constitucional (ver votos No. 5821-1998 o No. 4397-1999) y la Sala Tercera de la Corte (cfr. votos No. 891-1999, No. 368-2000, No. 383-2002, No. 1017- 2002, No. 1019-2002 y No. 35-2003), ha indicado que las reglas de la prescripción, como normas de carácter instrumental que son, tienen vigencia tan solo hacia el futuro y nunca al pasado. No es posible aplicar por tanto retroactivamente la ley procesal, dado que tal posibilidad se prevé únicamente para las normas sustantivas y Nombre11 que resulten más beneficiosas al imputado. Bajo tal consideración, las reglas en materia de prescripción serán eficaces a partir de su vigencia para los hechos o los actos procesales que ella prevé, pero nunca a los ya producidos, pues no se puede retrotraer sus efectos a éstos. Nombre02 las cosas, si bien el artículo 62 de la “Ley contra la corrupción y el enriquecimiento ilícito en la función pública” (Ley No. 8422) dispone que en lo sucesivo no se aplicará la reducción prevista en el artículo 33 del Código Procesal Penal una vez interrumpido el término de la prescripción cuando sobrevenga alguna de las causales que Nombre02 lo permiten, iniciando de nuevo la totalidad del plazo del artículo 31 de ese mismo cuerpo legal, tal norma no podrá aplicarse a los supuestos o casos en los que, previo a su entrada en vigencia, ocurrida el 29 de octubre del año 2004, ya se había reducido el término de la prescripción a la mitad como consecuencia precisamente de alguna de las causales interruptoras previstas, según lo establecía para ese momento la normativa procesal. Tal norma es eficaz únicamente a partir de su entrada en vigencia para los casos en los que sobrevenga alguno de los actos interruptores que la normativa procesal prevé y Nombre11 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. Ello significa que cuando se promulga la “ ley de enriquecimiento ilícito” (29 de octubre de 2004), en este proceso ya se había interrumpido y reducido a la mitad el término de la prescripción, ello de acuerdo con la normativa que Nombre02 lo regulaba, sea de según lo previsto en el numeral 33 del Código procesal. Con esto se logra salvaguardar de mejor forma los derechos de las partes y el principio esencial de seguridad jurídica, pues se descarta que una legislación procesal posterior venga a dirimir de manera diversa lo acaecido en un proceso o trámite anterior. Esto último se produce incluso independientemente del momento en que se declare la extinción de la acción penal (sea durante el tiempo de vigencia de la reforma o antes de ella), porque la resolución que Nombre02 lo establece tiene tan solo un carácter declarativo y no constitutivo de la prescripción ya consumada. De esta forma, si en el caso bajo análisis, y según lo previsto por la ley que estaba vigente cuando se suscitó, el término de la prescripción se redujo a la mitad una vez que se presentaron los actos interruptores correspondientes, el plazo que se debe computar es el de un año y seis meses y no el de tres años como se afirma en el recurso…” (El subrayado no es del original). Ahora, además de la falta de descripción de los elementos típicos del enriquecimiento ilícito, tanto en la imputación como en los hechos demostrados, Nombre02 como el haber operado el término de la prescripción de la acción penal, tratándose de las dádivas que [Nombre01 001] recibió materialmente luego del 10 de marzo de 2004 se puede añadir una razón más que impediría tener por configurado el mencionado delito, a saber, su atipicidad. Como ya se adelantó supra, [Nombre01 001] figuró como funcionario público en el ICE del 1 de enero de 2001 al 10 de marzo de 2004 (f. 15.895, tomo XXXIII), lapso durante el cual recibió la mayor parte de los fondos irregulares. Luego de dejar ese cargo, el 7 de mayo de 2004 recibió $24.000 y el 29 de julio de 2004 recibió $25.000 (hechos probados números 167 y 170, folios 15.466 y 15.467 frente, tomo XXXII). Tal y como se explicó atrás, el tipo penal del enriquecimiento, ilícito en el supuesto que aquí interesa -admisión de dádivas presentadas- contempla solo la admisión de las dádivas que le fueren presentadas al funcionario público en consideración a su oficio mientras permanezca en el ejercicio del cargo, lo que no sucede con los montos antes referidos. Nombre02 las cosas, la conducta de [Nombre01 001], al menos en los dos supuestos ya indicados, también resultaría atípica. Por todo lo antes expuesto, se anula la sentencia recurrida en cuanto declaró a [Nombre01 001] autor responsable de un delito de corrupción agravada en su modalidad de cohecho impropio. En su lugar, por economía procesal y en aplicación del principio in dubio pro reo , se le absuelve de toda pena y responsabilidad por el mencionado delito. Por innecesario, se omite pronunciamiento sobre los recursos planteados por su defensora pública, la licenciada Yamura Valenciano Jiménez. En cuanto al recurso que [Nombre01 001] presentó a título personal, en conjunto con otros imputados, esta cámara se referirá posteriormente.
• 2)[Nombre01 022]. Según se extrae de folios 15.837 a 15.893 frente del tomo XXXII y de folios 15.972 a 15.980 frente del tomo XXXIII (donde se hace una valoración conjunta de la situación de [Nombre01 001] y [Nombre01 022] ), así como de los acápites generales de la sentencia, también mencionados por esta cámara al examinar el caso de [Nombre01 001], a saber, los relacionados con el marco general en torno a la contratación de las 400.000 líneas celulares GSM (f. 15.512 frente y siguientes) y con los supuestos corruptores y la trama criminal (f. 15.572 frente y siguientes), para determinar la responsabilidad de [Nombre01 022] el a quo consideró una serie de circunstancias. Las expuestas de folios 15.837 a 15.893 frente del tomo XXXII se pueden sintetizar de la siguiente forma: i) Existe abundante prueba documental que permite establecer que [Nombre01 022] fue miembro del consejo directivo del ICE desde el 1 de junio de 1994 hasta el 31 de mayo de 2002; ii) como miembro del citado consejo, el imputado tenía voz y voto en las decisiones que se adoptaban y, en lo que aquí interesa, en lo concerniente al tema de las 400 mil líneas celulares (el tribunal cita aquí las actas de algunas de las sesiones de junta directiva); iii) entre [Nombre01 041], [Nombre01 078] y [Nombre01 022] existía una relación de confianza y amistad, relación que se mantuvo después del año 2002 en que cesó su nombramiento en el consejo directivo. Existe abundante prueba documental, toda examinada a profundidad en el fallo, que da cuenta de las atenciones que [Nombre01 041] y [Nombre01 078] dispensaban a [Nombre 022]. Por ejemplo, hicieron reservas de hoteles en Madrid y París para [Nombre 022] (año 1996); le pagaron viajes, entre ellos uno a España (1999), y gestionaron lo necesario para que [Nombre01 139] le dispensara atenciones en un viaje que efectuó a ese país (1996). El tribunal analizó uno de los documentos que [Nombre01 022] remitió a [Nombre02 078] , solicitándole hacer reservaciones en Madrid y París. En esa misiva, además de indicarle que luego le escribiría, [Nombre01 022] se despide con las palabras “abrazo [Nombre01 290] ”. Esta misiva la respondió [Nombre01 078] con copia a [Nombre01 041], confirmándole las reservaciones. También destaca el a quo que en algunos de estos hechos intervino [Nombre01 105], quien se acogió a un procedimiento abreviado; por ejemplo, en el año 1997, con ocasión de un viaje de [Nombre01 022] a España, es [Nombre01 105] quien pidió a [Nombre 078], con copia a [Nombre01 041] , ayuda para los gastos de hotel de [Nombre01 022], ayuda que efectivamente se le brindó; iv) el tribunal ponderó prueba documental de la que se deriva que [Nombre01 091] inició relaciones con la agencia de viajes Nombre69 en enero de 2000 y que, según los registros contables de esa empresa, [Nombre01 105], [Nombre01 064], [Nombre01 001] y [Nombre01 022] usaron sus servicios, este último imputado en mayo de 2002. Según el tribunal, esto no es casualidad. Tres de los favorecidos con los viajes eran funcionarios del ICE y otro estaba relacionado con la empresa [Nombre 114], a su vez vinculada con [Nombre01 060]. Si bien son viajes que tienen lugar luego de que se refrendara el contrato de las 400.000 líneas, dice el fallo recurrido, no son ajenos a esos hechos, como tampoco lo son las transferencias de dinero que recibió [Nombre01 022] a partir de marzo de 2002 (fecha del refrendo); v) los ofrecimientos y entregas de las dádivas a los imputados son coincidentes, tanto en lo temporal como en cuanto a los montos recibidos, Nombre02 como en cuanto a la sociedad que emitió los certificados de inversión, la sociedad que ordenó las transferencias de los dineros y la persona que administraba la cuenta bancaria; vi) carece de sentido pensar que las dádivas se entregaron a [Nombre01 022] y a [Nombre01 001] porque “les caían muy bien” a [Nombre01 041]. Lo fueron porque habían sido prometidas a cambio de que estos promoviesen la migración a la tecnología GSM; vii) el informe 011-SDI-206, prueba 630, archivo denominado Refrend 114363, es un mensaje de correo electrónico remitido el 5 de septiembre de 2001 por [Nombre01 022] a [Nombre01 078]. Tiene que ver con un estudio que aquel imputado solicitó a un funcionario del ICE para su uso personal y, cuando lo tuvo en su poder, lo remitió a [Nombre01 078] con la finalidad de ponerlo al tanto del “ambiente negativo de la Contraloría” con respecto, entre otras cosas, a las contrataciones directas 108212 y 108213 aprobadas el 5 de diciembre de 2000 por el Consejo Directivo del ICE, dirigidas a ampliar las centrales marca [Nombre01 091] y Siemens que existían en el país y que, a la fecha de ese informe, no habían sido refrendadas. Se trata de información que si bien se remitió a [Nombre01 078] el 5 de septiembre de 2001, es decir, después de que se había adjudicado el proceso abreviado de las 400 mil líneas a [Nombre01 091] (en fecha 28 de agosto de 2001), seguía siendo de su interés, pues esta adjudicación no había sido refrendada por la Contraloría General de la República, con lo cual era urgente que supiese cuáles eran los criterios y exigencias de la Contraloría en materia de contratación directa y la posibilidad que se abría para [Nombre01 091] de ampliar en un 50% el contrato de las 400 mil líneas; viii) la relación entre [Nombre01 041] y [Nombre01 022] se prolongó más allá del 31 de mayo de 2002, cuando el segundo dejó de ser directivo del ICE. Esto se demuestra con prueba documental que se examinó en el fallo (f. 15.850 frente); ix) de la prueba testimonial también se extrae esa relación de cercanía, pues hay varios testigos que dan cuenta de la presencia de [Nombre01 022] en las oficinas de [Nombre02 091], de un vínculo entre [Nombre02 041] y [Nombre01 022] y del envío de sobres cerrados -cuyo contenido no se pudo precisar- por parte de [Nombre01 041] a [Nombre 022], específicamente al domicilio de este y no a las oficinas del ICE, como sí sucedía con lo enviado a [Nombre01 095] (p. ej., los testimonios de [Nombre01 142], [Nombre01 144], [Nombre01 148] y [Nombre01 150], examinados de folios 15.851 a 15.855 frente); x) si bien no hay prueba directa sobre la promesa de dádiva (lo que es comprensible tratándose de un acto ilegal), su existencia se puede demostrar a través de varios elementos: 1) Los dineros recibidos no obedecen a negociaciones legales y transparentes y, tan consciente es [Nombre01 022] de esta situación, que usó mecanismos para tratar de poner distancia entre los bienes recibidos y su persona, no obstante lo cual, a través de exhaustivos estudios, se logró determinar que los fondos procedían de [Nombre01 060] . 2) [Nombre02 041], como representante de [Nombre02 060], y [Nombre01 078], estimaron necesario contar con ayuda de funcionarios del ICE y de otras dependencias para que se abriera un concurso público en el cual la empresa pudiese participar y ser la adjudicataria de las 400 mil líneas móviles. Para arribar a esta conclusión, el tribunal consideró los antecedentes nada favorables que dicha empresa tenía en la contratación con el ICE. Con base en el testimonio de [Nombre01 128] y en abundante prueba documental que se especifica en la sentencia (f. 15.857 a 15.861 frente), se explica la inconformidad de [Nombre01 091] con las políticas del ICE, en particular las asumidas para contratar 83.000 líneas en el año 1999 y 100.000 líneas en el año 2000, mismas que colocaban a la empresa en franca desventaja frente a otros competidores, p. ej., Ericsson, situación que fue denunciada por [Nombre 091] en distintos ámbitos, a saber, el mismo ICE, la Contraloría General de la República, la Asamblea Legislativa y la misma prensa (f. 15.857 a 15.861 frente). Esta situación es la que en primer término hace ver la necesidad y urgencia que tenían [Nombre01 041] y [Nombre01 078], en las vísperas de un contrato como el de las 400 mil líneas celulares, de contar con personas dentro del ICE que les fuesen afines, proyecto del cual estaban al tanto aquellos, pues como reconoce la defensa, desde tiempo atrás se discutía el tema de la migración de tecnología. Incluso, desde 1998 [Nombre01 091] ofreció donar un equipo GSM-PCS para 2000 terminales. 3) Un elemento probatorio adicional es el testimonio de [Nombre02 064], en el sentido de que [Nombre01 041] y [Nombre01 078] le ofrecieron un premio a cambio de ayudar a materializar la migración a tecnologías abiertas o GSM; de avanzar hacia un concurso público o licitación y de votar a su favor. [Nombre01 064] fue claro en que ambos corruptores le hablaron de las gentilezas o premios para quienes les ayudaban. También describió el ambiente previo a la contratación de las 400 mil líneas, el déficit en tecnología fija y sobre todo en la móvil, señalando que para entonces, en la fija el mayor proveedor era [Nombre01 091] en tanto que en la móvil, por el uso de tecnologías cautivas -TDMA-, otras compañías no podían competir. Ya desde entonces, se tenía claro que el futuro era la tecnología celular y se detectaba un interés en migrar a GSM, pues no había cautividad en cuanto a la tecnología. Indicó que [Nombre01 091] usó instrumentos de opinión pública para explicar la importancia de migrar a otras tecnologías y señaló que dicha empresa Nombre11 sostuvo que estaba siendo objeto de un trato discriminatorio. Esta apreciación de [Nombre02 064] confirma que, antes del contrato de las 400 mil líneas, [Nombre01 091], por medio de [Nombre01 041], se mostraba disconforme con las políticas seguidas en relación con contrataciones directas en las que no podía participar. 4) Otro elemento que permite tener por demostrada la promesa de dádiva es la denominada “propuesta de ruta de acción”, diseñada por [Nombre01 124] (f. 15.863 y siguientes). Según el fallo, si bien [Nombre01 124] se abstuvo en juicio, el documento en cuestión describe acciones para enfrentar los problemas de [Nombre01 091] con el ICE. En él [Nombre01 124] (que -según [Nombre01 132] - era un estratega político que conocía bastante el medio), habla de la necesidad de recabar apoyos en el sector empresarial, la iglesia católica, partidos minoritarios y el sector político. Específicamente, menciona la necesidad de conseguir el apoyo de tres diputados, un precandidato a [...], Nombre10 del directorio del partido Liberación Nacional y la asesoría privada de un expresidente. De nuevo, un elemento que revela la urgencia y necesidad que tenía [Nombre01 091], en la persona de [Nombre01 041], de agotar instancias para que su oferta respecto a la tecnología GSM fuese aceptada por el ICE. 5) Otro indicio que da cuenta de la promesa es el procedimiento abreviado al que se sometió [Nombre02 068], por hechos de igual naturaleza a los ya conocidos (prueba Nº 747). 6) Si bien en las actas de las sesiones del consejo directivo donde participó [Nombre01 022] este nunca se manifestó abiertamente a favor de [Nombre01 091], lo anterior no es de extrañar, ya que para entonces la discusión era favorable a esa empresa (f. 15.866 frente). Por otra parte, las circunstancias señaladas por el a quo de folios 15.972 a 15.980 frente del tomo XXXIII (y que en mucho son una reiteración de las ya referidas), son las siguientes: xi) La relación entre [Nombre01 091] y el ICE antes del contrato de las 400.000 líneas era tensa. A modo de ejemplo, en la contratación directa de 83.000 líneas en el año 1999 no se permitió la participación de [Nombre01 091] , razón por la cual esta empresa denunció al ICE ante la Contraloría General de la República e hizo una campaña pública para explicar esa denuncia. Lo mismo puede argumentarse con el proyecto del año 2000, para ampliar mediante contratación directa en 100.000 líneas. En este se vuelven a presentar problemas entre ambas partes y, una vez más, [Nombre01 091] hizo campaña en contra de lo que considera es un problema de transparencia en el ICE. Todas estas campañas perseguían que [Nombre02 091] se posicionara con el ICE y se rompiera la cadena de contrataciones directas a proveedores específicos; xii) la ruta de acción preparada por [Nombre01 124]; xiii) la declaración de [Nombre01 064] en los términos antes expuestos; xiv) la declaración de [Nombre01 116], que, en lo que interesa, habló de las manifestaciones hechas por [Nombre01 041] ante ella y otros Nombre10 de la comisión que [Nombre01 060] remitió al país para investigar los hechos que estaban publicándose en la prensa. Según la deponente, [Nombre01 041] reconoció haber pagado a [Nombre01 022], a [Nombre01 001], a [Nombre01 064] y a [Nombre01 018], y añadió que esos pagos fueron iniciativa suya; xv) [Nombre01 001] aceptó haber recibido dinero de [Nombre01 091]; xvi) hay notas -también mencionadas atrás- donde se habla de cómo [Nombre01 001] era un mejor interlocutor para [Nombre01 091]; xvii) [Nombre01 041] invitó a [Nombre01 001] a almorzar; xviii) entre [Nombre 022], [Nombre02 041] y [Nombre01 078] había una relación de amistad, confianza y colaboración, misma que se mantuvo después de que el primero dejó de ser miembro de la junta directiva del ICE. De esto, da cuenta una serie de documentos, a saber: 1.- misiva de fecha 22 de mayo de 1996 donde [Nombre01 041] solicita a [Nombre01 139] que en razón de un viaje de [Nombre01 022] a esa nación, se le brinde cualquier atención pues es miembro del ICE y esta institución es la principal cliente de [Nombre01 091] en el país; 2.- un fax, que se puede situar entre el 28 y 29 de marzo de 1996, donde [Nombre01 022] agradece a [Nombre01 078] una invitación y le solicita hacer reservaciones en hoteles en Madrid y París, siendo que una copia de ese fax se le hizo llegar a [Nombre01 041]. 3.- También se cuenta con un fax enviado el 18 de julio de 1997 por [Nombre02 105] a [Nombre01 078] con copia a [Nombre 041], donde se indica que [Nombre01 022] va para España y que solicita le ayuden con los gastos del hotel en Madrid; 4.- los documentos que dan cuenta de que el 8 de octubre de 1999 se le pagó un viaje a España; 5.- la prueba Nº 630, a saber, un correo electrónico de fecha 5 de septiembre de 2001, donde [Nombre01 022] comunica a [Nombre01 078] sobre el ambiente negativo que hay en la Contraloría General de la República en relación con las contrataciones directas tendientes a ampliar las centrales marca [Nombre01 091] y Siemens que existían en el país y que a la fecha del informe, no habían sido refrendadas. En igual sentido le informa del contrato de las 160.000 líneas otorgado a [Nombre01 091] y sobre el cual extraoficialmente, se escuchaba que la Contraloría de ninguna manera iba a refrendar porque había intereses de por medio y que si se quería comprar líneas celulares adicionales, era viable hacerlo por medio de un proceso de ampliación del 50% de las 400.000 líneas (folios 15.973 a 15.978 frente). Análisis de los indicios antes mencionados tras la exclusión hipotética de la declaración de [Nombre02 064] : La prueba fundamental para establecer que [Nombre01 022] recibió una promesa de dádiva de parte de los corruptores, al igual que sucedió con [Nombre01 001], fue el relato de [Nombre01 064]. Si bien hay una serie de indicios que permiten tener por demostrado ese hecho con un grado de probabilidad, sin la declaración del imputado colaborador es imposible hacerlo con certeza absoluta. Como se explicó en el caso anterior, no hay dudas acerca de que los jerarcas de la empresa [Nombre01 091] estaban molestos con las políticas del ICE en materia de telefonía móvil, pues por el uso de tecnologías cautivas, [Nombre01 091] no podía competir en ese mercado. Del mismo modo, se demostró que no tuvieron reparos en denunciar la situación en distintos ámbitos, al entender que a pesar de la necesidad de migrar hacia tecnologías abiertas, la institución insistía en contratos que perpetuaban la tecnología TDMA. Se demostró también que [Nombre01 091] recurrió a un profesional -[Nombre01 124]- para que elaborase una estrategia para enfrentar ese problema; que [Nombre01 022] tenía una relación cercana con [Nombre01 078] y [Nombre01 041] que se originó años antes de los hechos aquí investigados; que también durante años, [Nombre01 022] recibió de parte de esta empresa distintas ventajas de contenido económico, algunas que fueron requeridas por él y finalmente, que tras la adjudicación del contrato de las 400.000 líneas, recibió al igual que otros funcionarios públicos, fondos originados en [Nombre02 060]. Sin embargo, de todo esto no se infiere que a [Nombre01 022] se le haya cursado una promesa de dádiva a fines del año 2000 e inicios del 2001 para que a cambio, realizara las acciones necesarias dentro del ámbito de sus funciones como directivo del I.C.E. para impulsar la migración de tecnología TDMA hacia tecnología GSM, para promover las compras por medio de licitaciones y evitar que estas fueran abortadas, Nombre02 como para votar a favor de [Nombre01 091] en el proceso de contratación de las 400.000 líneas (cfr. hecho demostrado Nº 117). A continuación, esta cámara hará un examen minucioso de los indicios mencionados supra. En cuanto a la relación de confianza entre [Nombre01 041], [Nombre01 078] y el coimputado [Nombre01 022], hay abundante prueba que da cuenta de la misma. Así, por ejemplo, la prueba 59, denominado folder CRG 005 ICE, acta 370760. En él, hay un documento sin foliar, ubicado antes del folio 345. Se trata de un fax de fecha 22 de mayo de 1996, remitido por [Nombre01 105] a [Nombre01 041] y en el cual le habla de un viaje de [Nombre01 022] a Chile, pidiendo se le dé un trato especial. En esa misma prueba N° 59, a folio 354, aparece un fax enviado por [Nombre01 022] a [Nombre01 078] entre el 28 y 29 de marzo de 1996, donde le agradece una invitación y a la vez le solicita hacer reservaciones en Madrid y París para los días 1, 2, 5 y 7 de abril. En este documento se despide con la frase “un abrazo [Nombre01 290] ”. También se cuenta a folio 352 de la prueba mencionada con la respuesta que dio [Nombre01 078] a este mensaje, confirmándole las reservaciones. Son documentos del año 1996, que si bien revelan familiaridad (una en extremo censurable, pues hablamos de un director del ICE que recibe reiteradamente favores de una empresa proveedora de la institución), no aportan elementos para asegurar que hubo una promesa de dádiva años después. Igual sucede con la prueba Nº 65, del folder CRG.002-01/02 A ICE, que consiste en un documento de fecha 18 de julio de 1997 dirigido a [Nombre01 078] por [Nombre01 105] y en donde le informa de un viaje que efectuaría [Nombre01 022] a España, con la solicitud de que “le ayuden” con los gastos del hotel en Madrid, lugar al que llegaría el jueves 24 por la mañana y del cual regresaría a San José el lunes 28, petición que efectivamente se atendió según documento de folio 144. El tribunal también ponderó la prueba Nº 80, folio 238, que da cuenta -según se dice a folio 15.845 del tomo XXXII- que el 8 de octubre de 1999 se le pagó a [Nombre01 022] un viaje a España. Como se observa, hablamos de documentos que demuestran que [Nombre01 022] tenía, años antes de los hechos aquí investigados, una relación de cercanía (muy censurable, por cierto) con los personeros de [Nombre01 091] claramente inconveniente, pero que en modo alguno permite demostrar que años después y con ocasión del contrato de las 400.000 líneas, se le cursó a [Nombre01 022] una promesa remuneratoria con un contenido y un propósito específicos. Del mismo modo, hay prueba de la que se extrae que esa relación de cercanía se mantuvo después de que [Nombre01 022] dejó de ser director del ICE (cfr. prueba Nº 633, anexo 3, folios 9 a 11), pero de la que no se desprende un juicio de certeza en cuanto al punto tantas veces mencionado. Aunado a esto, basta revisar la prueba Nº 80, específicamente los documentos números 238 y 259, para concluir que de él no se deriva que [Nombre01 091] le pagase a [Nombre01 022] un viaje a Madrid, como lo aseguró el tribunal de mérito sin razón alguna. Lo que se establece con esa prueba es que se le invitó a comer en un restaurante de esa ciudad denominado Botillería del Café de Oriente. Otro tanto cabe señalar en cuanto al oficio de [Nombre01 126], visible en el tomo V del principal, folio 1.771 frente. Según el tribunal, los viajes allí referidos, al igual que los dineros recibidos tras la adjudicación, son parte de las ventajas económicas prometidas antes de que se diese esta. Tal afirmación, entienden los suscritos, carece de fundamentación. En ese documento, Nombre69 indica que en sus registros contables aparecen dos facturas del mes de mayo de 2002 que dan cuenta de dos viajes efectuados por [Nombre01 022] a Guatemala y a Tegucigalpa a cargo de [Nombre01 091]. Si bien se trata de prueba adicional que da cuenta de la dinámica (en extremo censurable, se insiste) que había entre algunos funcionarios públicos del ICE y las empresas proveedoras de la institución, donde los segundos colmaban a los primeros de ventajas de contenido económico, de él no se extrae que con ocasión del contrato de las 400.000 líneas se formulase una promesa de retribución económica que el señor [Nombre01 022] admitió. Al igual que sucedió con el dinero recibido tras la adjudicación, la recepción de las ventajas de contenido patrimonial no permite demostrar ese hecho y menos aseverar, tal y como lo hace el a quo, que son parte de lo prometido, máxime si se considera que [Nombre01 022] era proclive a solicitar y recibir dádivas de parte de esa empresa desde años antes de que ocurrieran los hechos aquí sometidos a examen. Por otra parte, en cuanto a la prueba Nº 630 ya mencionada, consistente en el informe 011-SDI-206, archivo Refrend 114363, que es un correo electrónico remitido por [Nombre01 022] a [Nombre01 078] el 5 de septiembre de 2001, véase que en él, el primero advierte al segundo sobre el ambiente negativo que hay en la Contraloría General de la República en relación con las contrataciones directas tendientes a ampliar las centrales marca [Nombre01 091] y Siemens que existían en el país y que, a la fecha del informe, no habían sido refrendadas. También le habla del contrato directo de las 160.000 líneas otorgado a [Nombre01 091] y que, extraoficialmente, se escuchaba que la Contraloría de ninguna manera iba a refrendar, porque había intereses de por medio y que si se quería comprar líneas celulares adicionales era viable la compra por medio de un proceso de ampliación del 50% de las 400.000 líneas. Como se aprecia, se trata de una comunicación que es posterior a la adjudicación y de la que, por su contenido (que se relaciona con contrataciones directas y no con el proceso concursal abreviado de las 400.000 líneas), tampoco se puede extraer que meses antes, de forma anticipada a la adjudicación del citado contrato, haya tenido lugar la promesa de la dádiva en los términos en que fue acusada por el órgano requirente. El mismo tribunal entiende que la intención de [Nombre02 022] con la citada comunicación era que [Nombre01 078] estuviese al tanto de los criterios de la Contraloría en materia de contratación directa y de la posibilidad que se abría para [Nombre01 091] de ampliar en un 50% el contrato de las 400.000 líneas. Si bien esto permite sospechar con algún grado de probabilidad que las retribuciones económicas estaban asociadas con aquel contrato, no permite asegurar con un grado de certeza que antes de su adjudicación [Nombre01 022] hubiese recibido una promesa de retribución económica. Tan es Nombre02 que con base en todos los indicios antes descritos también es posible considerar otras posibilidades, a saber, que desde antes del contrato mencionado y sin necesidad de que se le cursara una promesa de retribución económica en particular, [Nombre01 022] estaba comprometido con la causa de [Nombre01 091] y actuaba a su favor (como se vio, hay prueba que demuestra que desde 1996 este funcionario público recibía ventajas de contenido económico de parte de la citada empresa) y que por ende, los dineros recibidos luego de la adjudicación fueron solo una retribución por un acto cumplido. Igualmente y considerando que [Nombre01 022] no tenía reparos para solicitar retribuciones económicas, también es plausible que fuese él quien indujese el pago, o que existiendo alguna promesa anterior, su contenido fuese otro. En cuanto a la propuesta de [Nombre01 124], cabe reiterar lo ya expuesto. El acercamiento que sugiere este profesional no implica en modo alguno la comisión de conductas criminales y menos todavía la formulación de promesas de dádivas a funcionarios públicos. Otro tanto cabe señalar en cuanto a los sobres cerrados que se entregaron a [Nombre01 022] en su casa de habitación. El tribunal valoró el testimonio de [Nombre02 144], que en lo que interesa, refirió que él, como mensajero de [Nombre01 091], los entregó por orden de [Nombre01 041]. Para el a quo, el que estos documentos no se entregaran en el ICE y con copia de recibido, como sí solía suceder con otra documentación, demuestra que su contenido no era discutible en las sesiones del consejo directivo y que atendía a los fines ilícitos propuestos con respecto al tema del procedimiento abreviado 1-2001 (f. 15.854 frente, tomo XXXII). Se trata de una conclusión carente de todo fundamento, ya que, en cuanto al contenido de tales sobres, no existe información alguna que permita siquiera sospechar que se trataba de documentación relacionada con el citado concurso, dinero o títulos valores (p. ej., certificados de inversión), siendo que, además, incluso asumiendo esto hipotéticamente, como se ha venido explicando, de la recepción de las dádivas por parte de [Nombre01 022] tampoco se puede desprender que la promesa anterior al contrato de las 400.000 líneas haya tenido lugar. A mayor abundamiento, véase que el tribunal de mérito, a pesar de reconocer que la testigo [Nombre01 148], persona encargada de preparar los sobres, manifestó que su contenido no guardaba relación con el pago de dádivas, concluyó que tales manifestaciones “… no excluyen que los sobres entregados a [Nombre01 144] por parte de [Nombre01 041] fueran diferentes de los mencionados por la testigo [Nombre01 148] en razón de que las características de unos y otros sobres eran diferentes: unos eran de color amarillo y los otros no” (f. 16.115 frente, tomo XXXIII), apreciación que también resulta infundada, pues, al menos de lo consignado por el a quo en la fundamentación descriptiva del fallo, [Nombre01 144] no planteó distinciones categóricas en cuanto a los colores de los sobres que debía entregar, señalando tan solo que eran sobre “normales” de manila (f. 14.774 y 14.775 frente, tomo XXX). Además, la testigo [Nombre01 148] manifestó que los sobres podían mandarse o no con sello de confidencial, y que algunos de estos iban al ICE (f. 14.785, 14.786 y 14.787, tomo XXX), de lo que se desprende razonablemente que ella también preparó sobres con otros destinos y fue en relación con la totalidad o generalidad de aquellos que preparó y envió que la deponente negó que su contenido estuviese relacionado con el pago de dádivas. Por todo lo expuesto, esta cámara entiende que es una especulación del a quo el asegurar que los sobres entregados a [Nombre01 022] en su domicilio contenían documentos vinculados con el hecho criminal. Nombre11 en esta línea de ideas, el tribunal también ponderó los testimonios que dan cuenta de la presencia de [Nombre01 022] en [Nombre01 091] (p. ej., los de [Nombre01 148] y [Nombre01 150]). Se trata de prueba que si bien permite demostrar la estrecha relación que había entre este imputado y los jerarcas de [Nombre01 091], y que se originó años antes de la contratación de las 400.000 líneas, no permite arribar a la conclusión de que el ofrecimiento de dádiva (en los términos y circunstancias descritos por el Ministerio Público) tuvo lugar. Se reitera, esta cámara no pone en tela de duda que [Nombre01 022] haya recibido fondos de [Nombre01 060], como tampoco que era un funcionario público proclive a requerir y recibir ventajas de contenido económico de parte de esa empresa, sin embargo, esto no permite sostener con el grado de certeza que exige nuestra Constitución Política, que con ocasión del contrato de las 400.000 líneas se le haya cursado una promesa de dádiva a cambio de que favoreciese la migración a GSM, el uso de licitaciones o concursos públicos y de que votase de forma favorable a [Nombre01 091] . Dicho lo anterior, se procederá a examinar los tres aspectos medulares sobre los que el tribunal de mérito asentó su conclusión de que la promesa de retribución económica efectivamente se cursó, a saber: i) los antecedentes nada favorables para [Nombre01 091] antes del contrato de las 400.000 líneas. En el fallo de mérito se analizó una serie de contrataciones directas en materia de telefonía móvil que tuvieron lugar desde 1999 y en las cuales [Nombre01 091] no pudo participar, Nombre02 como la respuesta de la empresa ante esa situación y que pasó, desde agotar todas las instancias al interior del ICE, hasta denunciar el tema ante la Contraloría General de la República y la opinión pública. En particular, se examinó una contratación directa por 83.000 líneas en el año 1999 y otra por 100.000 líneas en el año 2000, ambas adversadas por [Nombre02 091] (f. 15857 a 15.861 tomo XXXII), todo para demostrar que la citada empresa estaba inconforme con las políticas del ICE sobre el procedimiento de contratación que se venía empleando, puesto que solo los proveedores de entonces, entre ellos Ericsson, tenían opción de participar. Para el a quo, esto constituye un primer elemento para comprender la necesidad que tenían [Nombre01 041] y [Nombre01 078] , en vísperas de un contrato como el de las 400.000 líneas celulares, de contar con personas dentro del ICE que fueran afines a sus intereses, proyecto sobre el que estaban al tanto porque desde tiempo atrás se discutía el paso a la tecnología GSM. A modo de ejemplo, el tribunal recuerda que para 1998, [Nombre01 091] mantenía vínculos con el ICE e hizo una oferta para donar un equipo GSM-PCS para 2000 terminales, oferta que fue aceptada (folio 15.861). Es por esto que los representantes de [Nombre01 060] optaron por prometer y luego entregar una dádiva a [Nombre01 022]. ii) Un segundo elemento de prueba que consideró el tribunal de instancia en cuanto a la promesa, fue la declaración de [Nombre01 064]. Según el a quo, este “testigo” no solo habló de la promesa de dádiva que le fue cursada por [Nombre01 041] y [Nombre01 078] a cambio de ayudar a materializar la migración a tecnología GSM, de que la compra de material o equipo se hiciese por medio de concurso público o licitación y de que votase a favor de [Nombre01 091] . También dijo que los corruptores le mencionaron que tenían gentilezas con la gente que les ayudaba. Con esa declaración además, se confirmó la situación que enfrentaba [Nombre01 091] antes del contrato de las 400.000 líneas y que fue descrita supra. iii) La ruta de acción preparada por [Nombre01 124], es un tercer elemento para tener por demostrada la promesa de retribución económica. Se habla de un plan dirigido a enfrentar los problemas de [Nombre01 091] con el ICE, lo que suponía acercamientos con el sector empresarial, la iglesia católica y el sector político. En ese documento se menciona la necesidad de recabar el apoyo de al menos tres diputados, un candidato a presidente, dos Nombre10 del directorio de Liberación Nacional y un expresidente (prueba Nº 686). Según el fallo recurrido, “ Este documento, sin duda alguna, evidencia la urgencia y necesidad que tenía [Nombre01 091] en la persona del coimputado [Nombre01 041], 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.” (F. 15.864, tomo XXXII). Como se extrae de lo antes expuesto, tras suprimir hipotéticamente la declaración del imputado colaborador, nos restan solo dos indicios (a saber, la ruta de acción propuesta por [Nombre01 124] y el malestar que experimentaban los funcionarios de la empresa [Nombre01 091] por ser esta excluida del mercado de la telefonía móvil, los que son claramente insuficientes para confirmar la sentencia en cuanto tuvo por demostrada la promesa de retribución económica a [Nombre01 022]. Esta conclusión no varía si estos dos indicios se analizan en conjunto con los que han sido mencionados antes (p. ej., la relación de confianza existente desde larga data entre este imputado y los personeros de [Nombre01 091]; la remisión de sobres cuyo contenido se desconoce; y. claro está, la recepción de fondos después de la adjudicación), ya que si bien de todo este panorama es plausible extraer con un alto grado de probabilidad que hubo una promesa de retribución económica, o cuando menos, que los fondos recibidos tenían algún vínculo con el contrato de las 400.000 líneas, esto no se puede asegurar con certeza absoluta, al punto que se pueden admitir otras posibilidades a las que se ha hecho mención de forma reiterada y que, además, no fueron acusadas por el órgano requirente, al menos de manera subsidiaria. Al igual que sucedió con [Nombre02 001], esta cámara no duda de que [Nombre01 022] incrementó su patrimonio de forma irregular gracias a las dádivas de la citada empresa, y que no había una razón legítima que lo amparase para proceder de esta manera, sin embargo, esto no permite tener por demostrada la promesa de retribución económica imputada por el Ministerio Público, en tanto que los indicios que restan tras la exclusión del testimonio de [Nombre01 064], aunque plurales e independientes, no desembocan en la conclusión de que la promesa tuvo lugar. Y es que, tratándose de la prueba indiciaria, el hecho consecuencia o hecho presunto (en este caso, la promesa y su aceptación por parte del imputado) debe extraerse de los indicios de manera inmediata, razonable, natural si se quiere, lo que no sucede aquí, pues esos elementos no convergen en una única conclusión que excluye simultáneamente otras opciones que no fueron contempladas, por ejemplo, que el contenido de la promesa fuese otro; que se tratase de una aceptación de dádivas por un acto cumplido, sin promesa anterior, o incluso que fuesen los funcionarios públicos los que indujesen el pago de las dádivas, lo que en el caso de [Nombre01 022] tampoco resultaría extraño, ya que según se demostró, era proclive a solicitar a los funcionarios de [Nombre01 091] toda clase de ventajas de contenido económico. Finalmente, es importante agregar que de la sentencia dictada en contra de [Nombre 068] (prueba Nº 747), tampoco puede derivarse un juicio de certeza acerca de que a [Nombre01 022] se le cursó una promesa de retribución económica relacionada con el contrato de las 400.000 líneas, ya que la mencionada resolución se dictó en el contexto de un procedimiento abreviado, donde la aceptación de los hechos por parte de [Nombre01 068] tuvo un carácter personal y formal y en esa medida, poca trascendencia probatoria puede darse a la misma en lo que a este caso respecta. Se trata de un argumento que también cabe aplicar a la sentencia condenatoria dictada en contra de [Nombre01 105], con idénticos resultados. Aunado a esto, como se indicó al conocer la situación de [Nombre01 001], la oferta que recibió [Nombre01 068] fue cursada por [Nombre01 105] y el mismo [Nombre 046], siendo que en el caso de [Nombre01 022], la misma se atribuyó a otras personas, a saber, a [Nombre01 078] y [Nombre01 041], con lo cual tampoco podemos aseverar que las plataformas fácticas son idénticas, al punto de derivar lógicamente de una lo que se afirma en relación con la otra. Finalmente, como bien reconoce el fallo recurrido, de las actas de junta directiva analizadas tampoco se desprende una actuación especialmente llamativa de [Nombre01 022] a favor de [Nombre01 091], de ahí que no se trate de prueba cuya consideración modifique lo afirmado por este tribunal de apelación de sentencia. En suma, para los suscritos, sin el testimonio de [Nombre01 064] lo que se puede establecer es que [Nombre01 022] recibió dádivas de [Nombre01 091] antes de los hechos aquí investigados -lo que no fue acusado- y que también las aceptó luego de la adjudicación de las 400.000 líneas, no obstante lo cual no cabe asegurar, al menos no con certeza, que esos fondos estaban destinados a cumplir con una promesa que le cursaron meses atrás y que él aceptó, dirigida a que actuase en beneficio de [Nombre01 091] en extremos muy específicos: migración de tecnología, promoción de licitaciones o concursos públicos y voto favorable tratándose del contrato de las 400.000 líneas. Finalmente, se debe reiterar que si bien [Nombre01 041] admitió ante [Nombre01 116] haber pagado a funcionarios públicos, nunca refirió haber hecho a [Nombre01 022] una promesa en ese sentido. A riesgo de incurrir en reiteraciones innecesarias, nótese que -según [Nombre01 116]- en un borrador de declaración remitido por [Nombre01 041], este indicó que fueron [Nombre01 064] y otros funcionarios públicos quienes le solicitaron los premios por haber ayudado en la apertura de licitaciones públicas en lugar de contrataciones directas (f. 15.157 frente, tomo XXXI). Aunque la testigo también manifestó que en la reunión que sostuvieron con [Nombre01 041] este no dijo lo anterior (cfr. mismo folio), lo plasmado en el citado borrador permite aumentar las dudas existentes acerca de si antes de la adjudicación, se habría girado una promesa de dádiva con un contenido y un propósito específicos, y de si la misma habría sido aceptada por [Nombre01 022]. En resumen, tras excluir la prueba ilícita y examinar la restante, este despacho concluye que de esta, no se extrae razonablemente que hubo una promesa de dádiva anterior, con lo cual las circunstancias que permitirían tener por configurado el delito de corrupción agravada en su modalidad de cohecho impropio, no se podrían tener por demostradas. Así, lo que corresponde es valorar si los hechos que se mantienen incólumes pueden ser considerados constitutivos de otro delito, lo que de anticipado se descarta. Como se ha venido señalando, en la imputación formulada por el órgano requirente no se consideraron otras posibilidades, a saber, que las dádivas hubiesen sido recibidas sin mediar promesa anterior, por acto cumplido; que fuesen requeridas o solicitadas por los funcionarios públicos o que, habiendo sido prometidas anteriormente, tuviesen otro contenido. Tras descartar la promesa anterior en relación con el contrato de las 400.000 líneas, lo único que se puede tener por demostrado es que [Nombre01 022] admitió -entiéndase recibió- las ventajas económicas que le fueron entregadas, conducta que no se puede subsumir siquiera en el tipo penal del enriquecimiento ilícito. Como se explicó antes, tratándose de la admisión de dádivas presentadas en consideración al oficio del funcionario público, es indispensable que la conducta tenga lugar mientras el sujeto activo permanece en el ejercicio del cargo. Ahora, según se extrae de los hechos probados (específicamente los números 115 y 118 a 126), [Nombre01 022] fue directivo del ICE hasta el 31 de mayo de 2002, siendo que las dádivas le fueron presentadas de octubre de 2002 a mayo de 2004. Por ende, la conducta de [Nombre01 022], de cara al delito de enriquecimiento ilícito, resultaría atípica. Es importante subrayar que en este caso no se puede aplicar el supuesto de la admisión de dádiva ofrecida que también contempla el tipo penal del enriquecimiento ilícito, ya que no se ha podido tener por demostrado que a [Nombre01 022], mientras permanecía en su cargo y con ocasión de este, se le ofreció una dádiva que aceptó, lo que hubiera bastado para tener por configurado el delito y, en consecuencia, hubiera convertido en irrelevante el momento en que se recibió materialmente la ventaja económica. A mayor abundamiento, se tiene que la acción penal para perseguir el delito de enriquecimiento ilícito estaría prescrita. Este delito es sancionado con pena de prisión de 6 meses a 2 años. Por ende, su plazo de prescripción es de 3 años y se redujo a 18 meses con la primera imputación formal (artículos 31 a) y 33 inciso a) C.P.P.), acto procesal que ocurrió el 1 de octubre de 2004 (f. 146 a 161 frente, tomo I). Es decir, el plazo de 18 meses venció el día 1 de abril 2006, siendo que para entonces no había ocurrido ningún acto procesal que tuviese por disposición legal, la virtud de interrumpir o suspender su conteo. Además, tal y como se explicó al examinar la situación de [Nombre01 001], acápite al que deben remitirse las partes para evitar reiteraciones innecesarias, esta conclusión no se ve modificada si se considera lo expuesto en el artículo 376 C.P.P., en especial la interpretación que la Sala Tercera hizo de esta norma, ya que para la fecha en que adquirió firmeza la resolución que declaró de tramitación compleja esta causa (a saber, el 26 de junio de 2006), la acción penal ya se encontraba prescrita. Del mismo modo, tampoco resulta aplicable en el caso particular de [Nombre01 022] el artículo 62 de la ley N° 8422, Ley contra la corrupción y el enriquecimiento ilícito en la función pública, ya que esta disposición entró en vigencia el 29 de octubre de 2004, es decir, con posterioridad a que el imputado rindiese su declaración indagatoria y operasen simultáneamente los efectos interruptores y reductores del cómputo del plazo de la prescripción. Por lo anterior, se anula la sentencia recurrida en cuanto declaró a [Nombre01 022] autor responsable de un delito de corrupción agravada en la modalidad de cohecho impropio. Asimismo, por economía procesal y en aplicación del principio in dubio pro reo, se le absuelve de toda pena y responsabilidad por este delito. Por innecesario, se omite pronunciamiento sobre los recursos de casación formulados por su defensora pública, la licenciada Yamura Valenciano Jiménez.
• 3)[Nombre01 006]: En relación con este imputado, el tribunal tuvo por demostrado que aceptó una dádiva mientras permanecía en el ejercicio de su cargo, específicamente, el de subjefe de la dirección del departamento de conmutación del ICE; una dádiva que además, fue entregada en tres tractos. En virtud de esos hechos, se condenó a [Nombre01 006] por un delito de enriquecimiento ilícito. Como fundamento de esta decisión, de folios 16.256 a 16.282 frente de la sentencia, tomo XXXIV, el a quo consideró lo siguiente: i) [Nombre01 006] tenía relación con la empresa [Nombre01 091], ya que el área especializada de conmutación era la que debía realizar los montajes de los equipos y administrar los contratos. Además, [Nombre01 006] tuvo activa participación en varias contrataciones adjudicadas a esa empresa y que fueron recomendadas por él, a saber, (i) la Nº 103830 para la adquisición de 38 unidades remotas de abonado, adjudicada en la sesión Nº 5109 de 7 de septiembre de 1999; (ii) la contratación Nº 104333 para la adquisición de 509 accesos primarios de TED digital RDSI en centrales, adjudicada el 13 de abril de 2000 y en la que [Nombre01 006] fue coadministrador del contrato; (iii) la contratación Nº 105543 para ampliación de red inteligente, adjudicada en sesión Nº 5210 de 22 de agosto de 2000. En esta, [Nombre01 006] estuvo a cargo de las pruebas de aceptación; (iv) la contratación Nº 108213 para la ampliación de centrales [Nombre 091] 1000 - E10, adjudicada en sesión Nº 5294 de 9 de mayo de 2001. [Nombre01 006] fue coadministrador del contrato; (v) contratación Nº 112346, ejecución de la opción de compra de la red inteligente, adjudicada en sesión Nº 5375 de 12 de febrero de 2002; (vi) contratación Nº 112765, ampliación de las centrales [Nombre 091], adjudicada en sesión Nº 5404 de 14 de mayo de 2002. [Nombre01 006] fue el administrador de este contrato. La prueba de lo expuesto es de carácter documental y se menciona a folios 16.257 y 16.258 frente de la sentencia. ii) En razón de la administración de los contratos, [Nombre01 006] tenía una relación estrecha con los personeros de [Nombre01 091], cuestión de la que también dan cuenta testigos como [Nombre01 153] y [Nombre01 156]. iii) Con base en esos mismos testimonios y la prueba documental Nº 344, se estableció que [Nombre02 006], como jefe del departamento de conmutación del ICE, tenía, entre otras funciones, determinar las necesidades en cuanto a ampliaciones o mejoras en las diferentes áreas del país. Como coordinador tenía bajo su mando un equipo de técnicos que determinaban las necesidades de equipamiento, con base en esas necesidades se hacía un documento y, según palabras del testigo [Nombre01 156], “se convertía en requerimiento”, correspondiéndole al imputado [Nombre01 006] firmar la certificación de la necesidad del proveedor. Posteriormente, llevaba la recomendación de adjudicación al seno del consejo directivo del ICE para que este órgano decidiera si convocaba el concurso. Además de las competencias ya señaladas, también era el encargado de montar los equipos, realizar los contratos y evaluar el desempeño, por lo cual era un funcionario clave dentro del procedimiento de las adjudicaciones, no solo a lo interno del ICE, sino también para aquellas empresas que pretendiera participar (f. 16.276 frente); iv) [Nombre01 006] no tuvo nada que ver con el procedimiento abreviado 1-2001 referente al contrato de las 400.000 líneas, pero sí con contrataciones de telefonía fija; v) hay prueba documental y pericial también examinada en la sentencia, que permite demostrar que [Nombre01 006] recibió dineros procedentes de [Nombre01 060] y que se le trasladaron usando los mismos mecanismos empleados para hacer llegar ventajas económicas a otros funcionarios públicos (a saber, a través de la cuenta que tenía [Nombre01 058] .); vi) este imputado recibió la suma de $110.336,20 dólares, incremento patrimonial que no tiene justificación alguna, sobre todo considerando que su salario mensual rondaba los 400.000 colones aproximados, según la prueba testimonial evacuada. Consecuencias de la exclusión hipotética del testimonio de [Nombre02 064]. Según entiende esta cámara, la declaración de [Nombre01 064] no fue determinante para establecer la responsabilidad de [Nombre01 006], al punto que suprimida hipotéticamente, lo resuelto no sufre modificación alguna. Por lo anterior, más adelante se procederá a conocer los reclamos que han formulado sus defensores contra la sentencia de instancia.
• 4)[Nombre01 018]: El a quo le condenó por el delito de enriquecimiento ilícito, al entender que, para no quebrantar el principio de correlación entre acusación y sentencia, no era posible tener por demostrada la promesa de dádiva y condenar por el delito de corrupción agravada en su modalidad de cohecho impropio, en los términos solicitados por el Ministerio Público. Para determinar la responsabilidad de [Nombre01 018] en cuanto al enriquecimiento ilícito mencionado, el tribunal ponderó una serie de circunstancias que se pueden esquematizar como a continuación se dirá: i) [Nombre01 018] fue diputado de la Asamblea Legislativa del 1 de mayo de 1998 al 30 de abril de 2002. Luego, del 8 de mayo de 2002 al 21 de abril de 2004 fue presidente ejecutivo de la Caja Costarricense del Seguro Social (de lo anterior da cuenta la prueba documental que se cita a folio 15.998 frente y el testimonio de [Nombre01 158], citado también en ese mismo folio); ii) como diputado, fue parte de la comisión especial mixta que se integró después de las protestas por el denominado combo del ICE. La pretensión era que no se diera trámite a ningún proyecto de ley en relación con el ICE sin el dictamen de esa comisión (así, prueba Nº 59, folio 93). Esto es de interés, dice el tribunal, porque en la gerencia de [Nombre01 091] se incautó un documento denominado “Nueva Ley de Telecomunicaciones (Combo ICE), impacto sobre [Nombre01 091] y acciones a seguir”, que revela la importancia que tenía para la empresa toda acción que pudiese modificar o afectar las expectativas comerciales o contratos con la referida institución (f. 15.999 frente); iii) [Nombre01 063] laboró en el ICE del 1 de agosto de 1974 al 27 de septiembre de 2004 y fue el enlace entre [Nombre01 091] y [Nombre01 018]. Los personeros de [Nombre01 091] se acercaron a este último gracias a la mediación de [Nombre01 063], para exponerle sus preocupaciones acerca de las contrataciones directas que efectuaba el ICE y que, según [Nombre01 091], la dejaba fuera del mercado. De esto da cuenta el informe Nº 428-DEF-443-05/05, la prueba Nº 630, PC06, archivo “Libro blanco” y la declaración de [Nombre01 128]; iv) se descartó con base en la prueba testimonial evacuada que [Nombre01 018] hubiese sido consultor de la empresa [Nombre01 091], como también que hubiese tenido alguna relación comercial o laboral con [Nombre01 058]. que justificase la recepción de los dineros que le fueron entregados. Incluso, [Nombre01 158] declaró que este imputado le manifestó haber ganado un dinero con [Nombre01 091] de forma fácil, pues no había hecho nada y, según la testigo [Nombre02 116], [Nombre 041] le dijo espontáneamente que él había pagado sobornos a funcionarios públicos, entre ellos a [Nombre01 018]. Otro tanto hay con el testimonio de [Nombre02 142], quien señaló que [Nombre01 041] reconoció haber pagado dádivas a funcionarios públicos, en los medios de comunicación. Finalmente, la empresa [Nombre01 091] tenía dentro de sus políticas de contratación la prohibición de contratar como asesores a funcionarios públicos. v) Con base en la declaración de [Nombre02 128], se estableció que [Nombre02 018] fue informado del tema de la telefonía móvil y del interés de [Nombre01 091] en que se eliminase la contratación directa sin licitación. [Nombre01 091] había hecho dos campañas públicas y de denuncia, una para oponerse a la contratación de las líneas fijas a Ericsson en 1999 y otra en el año 2000, a propósito de la tecnología GSM, siendo que desde 1999 existía contacto con [Nombre01 018]. Hubo varias reuniones con el entonces diputado y, en una oportunidad, [Nombre01 018] le pidió a [Nombre01 128] hablar con sus superiores, reunión que según el testigo, sí tuvo lugar. vi) Para el tribunal, de lo dicho por [Nombre01 128] se extrae que a [Nombre01 018] se le contactó para discutir sobre la eliminación de las contrataciones y la apertura de la licitación, lo cual lleva al tema de las 400.000 líneas celulares. Esto confirma la versión de [Nombre02 064] , en el sentido de que el ofrecimiento de la dádiva tenía que ver con el tema de las centrales móviles y con la tecnología GSM y, en ese tanto, hay indicios que permiten vislumbrar que a [Nombre01 018] también se le hizo una promesa remuneratoria en circunstancias modales y temporales semejantes a la cursada a [Nombre01 064], solo que mientras a este último lo llamó [Nombre01 078], fue [Nombre 018] quien pidió hablar con los superiores de [Nombre01 128]. Además, los pagos también le fueron hechos por las mismas vías que a otros imputados. vii) Hay documentación que da cuenta de que el día 17 de agosto de 2000, en el café [...] , [Nombre02 041] se reunió con [Nombre 018] y [Nombre 063]; viii) [Nombre01 144], mensajero de la empresa [Nombre 091], dijo haber llevado sobres, remitidos por [Nombre 041], a los acusados [Nombre01 022], [Nombre 001], [Nombre01 018] y [Nombre01 028], en sus domicilios y oficinas. La secretaria de [Nombre01 041] dijo que se enviaban sobres al ICE y a los imputados, y que ella conocía su contenido, sin embargo, “…esto no excluye que [Nombre01 144] llevara sobres que no fueran los que ella conoció; sobres que además tenían características diferentes a los descritos como conocidos por su persona.” (F. 16.011 frente). ix) Nombre02 como en el año 2000 se inició la campaña pública de [Nombre 091] en pro de la licitación pública y la migración a la tecnología GSM, también entre julio de 2000 y diciembre de ese año personeros de [Nombre01 091] se reunieron con diputados y otros personajes del ámbito político. Es entonces cuando se efectuaron los encuentros con [Nombre01 018], [Nombre01 001] y [Nombre01 064], todos los que al final recibieron dineros procedentes de [Nombre01 060]. x) Finalmente, el a quo valoró abundante prueba documental, descrita de folio 16.014 frente a 16.054 frente, para demostrar que los fondos recibidos por [Nombre01 018] procedían de [Nombre01 060]. xi) No obstante lo anterior, el tribunal entiende que no es de recibo la solicitud de la fiscalía de condenar a [Nombre01 018] por el delito de cohecho impropio, sobre la base de que este imputado atendió a los personeros de [Nombre01 091] en cumplimiento de la obligación que tiene todo diputado de recibir público. Lo anterior porque en el hecho número 220 de la acusación se alude al ofrecimiento de la dádiva y en el hecho número 221 a la aceptación de esta, sin que se hayan descrito los elementos del cohecho impropio. Por eso, indica el tribunal, con independencia de si lo afirmado por el Ministerio Público en conclusiones se demostró o no (a saber, que a [Nombre01 018] se le hizo una promesa remuneratoria por atender público), como la acusación no contiene tal información, el único delito que se puede tener por configurado es el de enriquecimiento ilícito, en tanto admitió la dádiva que le fue presentada u ofrecida en condición del cargo que ostentaba (f. 16.054 a 16.056 frente). Tratándose del imputado [Nombre01 018], la exclusión hipotética de la declaración de [Nombre01 064] tiene una trascendencia particular, pues aunque sin esa probanza, como se explicará más adelante, es imposible confirmar la sentencia recurrida en cuanto tuvo por demostrado que ese justiciable admitió una dádiva que le fue ofrecida en los términos que prevé el tipo penal del enriquecimiento ilícito, no se descarta la aplicación del otro supuesto contemplado en el art. 346 inciso 3) del Código Penal, a saber, el de la admisión de la dádiva presentada. Nombre02 las cosas y siendo evidente que para resolver la situación jurídica de este imputado (incluido el tema de la prescripción) se requiere un examen más pausado de los hechos y de las pruebas, esta cámara procederá a conocer los recursos formulados por [Nombre01 018] a título personal y por su defensor, el licenciado José Miguel Villalobos Umaña.
• 5)[Nombre02 033]: La prueba medular que consideró el a quo fue la declaración de [Nombre01 064]. Sin esta, no existe ninguna posibilidad de que el juicio de certeza al que se arribó se mantenga incólume, ya que si bien tras su supresión hipotética, puede demostrarse razonablemente que algunos fondos de [Nombre01 060] acabaron en sus manos, o en las de personas físicas o jurídicas cercanas a él, se trata de fondos que en primer término recibió [Nombre01 064] y que luego, solo en parte, este trasladó a [Nombre01 033]. Además, la única prueba que hay sobre el motivo o justificación de esos traslados es el dicho del mismo imputado colaborador, en el sentido de que a fines del año 2000 conversó con [Nombre01 033] sobre la promesa de retribución económica que le había sido formulada por los jerarcas de [Nombre02 091] en relación con el tema de las 400.000 líneas, y que el entonces [...] Nombre70 impulsó a aceptarla. Por tanto, se tiene que sin el relato de [Nombre01 064], la condena impuesta a [Nombre01 033] queda ayuna de todo fundamento probatorio. Para explicar de mejor manera la anterior conclusión, esta cámara iniciará señalando de forma sintética los argumentos que empleó el tribunal de juicio para condenar a [Nombre01 033], no sin antes aclarar que no se profundizará en las razones que invocó el a quo para estimar creíble el dicho de [Nombre01 064], lo anterior no solo porque ya han sido analizadas en esta resolución, sino porque carecen de todo interés si se toma en cuenta que el criterio de oportunidad y la prueba derivada de él fue declarada ilegal. En cuanto a [Nombre01 033] se ponderó lo siguiente: i) [Nombre01 064] ostentaba una amplia trayectoria en el servicio público. Fue por ejemplo, diputado, Ministro de Vivienda y Asentamientos Urbanos en la administración [Nombre01 033] (de mayo de 1998 a julio de 1999), asesor presidencial del 1 de agosto de 1999 al 9 de mayo de 2002, y director general de la casa presidencial. También, con el aval de [Nombre01 033], fue nombrado por el consejo de gobierno director del ICE desde el 3 de agosto de 1999 en adelante, cargos que ejerció de forma simultánea. [Nombre01 064] fue director del ICE hasta el 31 de mayo de 2010 y, para esto, contó con el aval de la siguiente administración. [Nombre01 064] era una persona muy cercana a [Nombre01 033] y, no obstante la relación de jerarquía entre ambos, también había una relación de amistad (folios 16.088 a 16.111, tomo XXXIII); ii) [Nombre01 064], como directivo del ICE, tenía relación con [Nombre02 041] y [Nombre01 078] (f. 16.111 a 16.116 frente); iii) según se determinó, desde 1997 había una práctica de [Nombre01 091] de ofrecer diversas atenciones y cortesías a los funcionarios públicos del ICE. Dice el a quo que aunque el fin último de esta práctica no era hacer propuestas ilícitas, de eso se valieron [Nombre01 041] y [Nombre01 078] para acercarse a los funcionarios públicos, ganarse su confianza y determinar si podían admitir una eventual promesa remuneratoria. Todo esto confirma lo dicho por [Nombre01 064], en el sentido de que hubo un proceso de seducción que culminó con la promesa de dádiva (f. 16.112 frente a 16.116 frente); iv) hubo encuentros entre algunos funcionarios públicos -[Nombre01 022], [Nombre01 001] y [Nombre01 018]- con [Nombre02 041], siendo que este también les enviaba sobres (f. 16.114 y 16.115 frente); v) [Nombre01 041] hizo una manifestación espontánea donde aceptó el pago de dádivas a funcionarios públicos, manifestación a la que aludieron varios testigos ([Nombre01 116], [Nombre01 164] y [Nombre01 142]). [Nombre02 068] admitió los hechos, [Nombre01 001] aceptó ante la prensa haber recibido dinero y [Nombre01 064] también admitió haber recibido de parte de [Nombre01 041] y [Nombre01 078] una promesa anterior a la adjudicación, misma que hizo de conocimiento de [Nombre01 033] (f. 16.111 y 16.112 frente); vi) de la existencia de la promesa remuneratoria cursada a [Nombre01 064], la prueba medular es su propio “testimonio”, que el a quo estimó creíble. De la reunión entre [Nombre01 064] y [Nombre01 033] en la casa de este, lo es también esa declaración (cfr. folios 16.126 a 16.134 frente, tomo XXXIII). Dijo [Nombre01 064] que él, a finales del año 2000, se reunió con [Nombre01 078] y [Nombre 041] a pedido del primero, en el restaurante [Nombre01 094], cerca del aeropuerto, oportunidad en la que ambos le formularon una promesa de dádiva a cambio de impulsar la migración de tecnología, procurar el proceso de licitación en lugar de las compras directas y votar a favor de [Nombre01 091]. Que él, en principio, aceptó, pero que al pensarlo mejor decidió preguntar a [Nombre01 033], ya que este estaba en mejores condiciones de direccionar el criterio de los Nombre10 de la junta directiva en caso de ser necesario. Es por esto que se reunió con [Nombre01 033] al día siguiente, para plantearle la oferta, misma que el entonces [...] Nombre07, indicándole que la distribución de la ganancia sería de 60% para [Nombre01 033] y 40% para [Nombre01 064]. vii) Para confirmar la existencia de la reunión en [Nombre01 094] , se tomó en cuenta que, según sus movimientos migratorios, todos los partícipes ([Nombre01 064], [Nombre01 041] y [Nombre01 078]) estaban en el país para el 2 de diciembre de 2000. Igualmente, se ponderó que para el día 3 de diciembre, fecha en la que según [Nombre01 064] se reunió con [Nombre01 033] en la casa de este, ambos estaban en el país (f. 16.130 y 16.131 frente); viii) dos de los directivos vinculados con estos actos de corrupción fueron nombrados en la administración [Nombre01 033], a saber, [Nombre01 064] y [Nombre01 068], quien ya fue sentenciado mediante un procedimiento abreviado. En cuanto al tercero, [Nombre01 022], si bien fue nombrado en otra administración, tenía un vínculo previo con [Nombre01 033] (f. 16.120 y 16.121 frente); ix) en cuanto a la entrega y recepción de la dádiva, se tiene que fue [Nombre01 064] quien trasladó los fondos a [Nombre02 033]. Es decir, [Nombre01 058]. no trasladó dineros a las cuentas de [Nombre01 033] o a las cuentas de personas físicas o jurídicas de su entorno más inmediato, sino que los trasladó a [Nombre01 064] quien, a su vez, los entregó a [Nombre01 033] en los términos que se describieron de folios 16.145 a 16151 frente de la sentencia. Para esta cámara, excluida hipotéticamente la declaración de [Nombre01 064], la condena impuesta a [Nombre01 033] queda sin fundamento probatorio alguno. La declaración del imputado colaborador es la única prueba para demostrar que este compartió con [Nombre01 033] la promesa que, según él, le formularon [Nombre01 041] y [Nombre01 078]. Sin ese relato es imposible confirmar la sentencia recurrida en cuanto tiene por probado que el entonces [...] Nombre59 dio el apoyo que necesitaba para aceptar la promesa de retribución económica, o que fue [Nombre01 033] quien determinó la forma de reparto de las ganancias irregulares entregadas por [Nombre02 058]. Es importante acotar que en el debate se incorporó y bastanteó abundante prueba que permite determinar que a manos de [Nombre01 033] o a las de sus allegados, llegaron fondos originados en [Nombre01 060], sin embargo, de esto no se puede extraer que [Nombre01 033] participó en la aceptación de la promesa de dádiva en los términos que refirió [Nombre01 064], o que los fondos estaban asociados con esa promesa. Nótese que [Nombre01 058]. nunca entregó dineros de manera directa a [Nombre01 033] o a personas físicas o jurídicas de su entorno, sino que los entregó a [Nombre01 064], quien a su vez trasladó parte de los mismos a [Nombre01 033]. Nombre02 las cosas, sin su “testimonio” (y de nuevo aclarando que se usa el vocablo testimonio de forma atécnica, pues el imputado colaborador no es un testigo en sentido estricto ya que no ofrece su declaración bajo juramento) no cabe asegurar, como si de un hecho demostrado se tratase, que hubo un vínculo entre el entonces [...] Nombre25 la empresa mencionada. Y es que, al margen de la reunión entre [Nombre01 064] y [Nombre01 033] que según aquel tuvo lugar, [Nombre01 033] no desplegó ninguna acción que permita sugerir al menos como probable su participación en los hechos investigados. Ni la imputación, ni la sentencia, atribuye a este haber contactado a algún miembro del Consejo Directivo del ICE o a cualquier otro funcionario público con el propósito de determinar sus decisiones en relación con el tema de las 400.000 líneas. Tampoco se le imputó siquiera mantener contactos con los jerarcas de [Nombre01 091] que fueron tachados de corruptores. Por tanto, la demostración del vínculo entre [Nombre01 033] y la supuesta promesa de retribución económica anterior a la adjudicación del contrato mencionado, depende en exclusiva de una prueba que este tribunal de apelación ha declarado ilícita. En este punto, es necesario aclarar que la recepción por [Nombre01 033] de algunos fondos originados en [Nombre 060] (único hecho que se puede demostrar sin la declaración de [Nombre01 064]), no basta para confirmar la sentencia en cuanto lo consideró instigador del delito de corrupción agravada por cohecho impropio. No solo porque sin esa prueba, es imposible asegurar, más allá de un grado de probabilidad, que la promesa de retribución económica existió, sino porque de igual manera, tampoco pueden descartarse con certeza otras hipótesis que no fueron imputadas, a saber, que los dineros fuesen una gratificación por un acto cumplido sin que hubiese una promesa anterior, o que fuesen los funcionarios públicos los que indujesen su pago. Además, por otras razones que se procederán a exponer a continuación, al examinar cada una de las entregas de dinero que el tribunal de mérito tuvo por acreditadas. En cuanto a la primera entrega (pues hubo varias más), el hecho probado número 96 señala: “ 96) Sin precisarse fecha, pero si con posterioridad al 6 de enero de 2002 y antes del 18 de febrero de ese mismo año, de conformidad con los porcentajes de repartición ilícitos establecidos por el imputado [Nombre01 033], el encartado [Nombre01 064] le entregó a [Nombre02 033] en el Despacho Presidencial la suma de ciento treinta mil dólares ($130.000), mediante 7 certificados de depósito al portador del Banco Internacional de Costa Rica S.A., a saber el Nº 19692 por un monto de cien mil dólares ($100.000), Nº 19693 por un monto de cinco mil dólares ($5.000), Nº 19694 por un monto de cinco mil dólares ($5.000), Nº 19695 por un monto de cinco mil dólares ($5.000), Nº 19696 por un monto de ($5.000), Nº 19698 por un monto de cinco mil dólares ($5.000), y Nº 19699 por un monto de cinco mil dólares ($5.000). Los anteriores títulos fueron generados de la cuenta de [Nombre02 166] -madre de [Nombre01 064]- y emitidos el 14 de diciembre de 2001 con vencimiento el 14 de febrero de 2002...”. Como se observa, los certificados que entregó [Nombre01 064] se generaron de la cuenta de su madre, [Nombre01 166], y no de la cuenta de su esposa, [Nombre01 080], misma que fue la abastecida con los fondos de [Nombre01 060]. Aunque [Nombre01 064] explicó lo anterior en el debate, señalando que los fondos procedentes de [Nombre01 060] fueron bloqueados o congelados y que por eso acudió a la cuenta de su madre para pagar a [Nombre01 033] (f. 16.165 frente), al suprimir su declaración es imposible determinar con certeza tanto el motivo de esa primera entrega, Nombre02 como el vínculo de los fondos con [Nombre02 060]. Es importante acotar que si bien hay prueba documental que permite demostrar que fueron congelados los doscientos veinticinco mil dólares ($225.000) que [Nombre 058]. trasladó el 10 de diciembre de 2001 a la cuenta en dólares que tenía la esposa de [Nombre01 064] en el Saint Georges Bank (cfr. prueba Nº 208, folio 28, que hemos tenido a la vista), esto no deslegitima lo antes expuesto, ya que esa documentación no permite siquiera sospechar que los $130.000 que [Nombre01 064] entregó a [Nombre01 033] entre enero y febrero de 2002, tienen alguna relación con los ya mencionados $225.000, o cuando menos, con [Nombre01 060]. Para esto, se insiste, es indispensable el dicho del imputado colaborador. Sobre la segunda entrega de fondos, en los hechos demostrados se afirmó: “98) El día 20 de mayo de 2002, con los recursos de la cuenta Nº [Valor 012] de [Nombre 058]. del Banco Cuscatlán, abastecida con el dinero previamente depositado por [Nombre 060], el encartado [Nombre01 028], conforme a la labor que le correspondía dentro de la distribución de funciones de los corruptores, canceló parcialmente la inversión a la vista Nº 21200289108 por la suma de cien mil dólares ($100.000) y constituyó cuatro certificados de inversión por veinticinco mil dólares ($25.000) cada uno, todos al portador y emitidos el 20 de mayo de 2002, números Identificacion01 Identificacion02 Identificacion03 Identificacion04 y los cupones de intereses respectivos por $64.58 cada uno. Estos certificados el imputado [Nombre01 028] se los entregó al coencartado [Nombre 041] para que, a su vez, se los entregara a [Nombre01 064] también como parte del pago ilícito prometido. 99) Para lograr tal fin, sin precisar fecha, pero después del 20 de mayo de 2002, [Nombre01 064] se dirigió al frente de las oficinas de la empresa [Nombre01 091] en Sabana Sur, y recibió de [Nombre01 041] un sobre de manila amarillo el cual contenía los certificados descritos, y con ellos realizó los siguientes movimientos financieros: a. Con el producto de los certificados Nº Identificacion03 y Nº Identificacion04 incluyendo los intereses acumulados de los certificados Nº Identificacion01 y Nº Identificacion02 se adquirió el cheque de gerencia del Banco Cuscatlán Nº 12847-3 del 26 de junio de 2002 por cincuenta mil doscientos cincuenta y tres dólares con treinta y dos centavos ($50.253.32), el cual fue depositado en la cuenta de [Nombre 080] del Banco BCT S.A. el 27 de ese mes y año. b. El producto de los certificados Nº Identificacion01 y Nº Identificacion02 se reinvirtió por órdenes de [Nombre 080] , según los planes de [Nombre 064], en el certificado de inversión del Banco Cuscatlán Nº Identificacion05 emitido el 26 de junio de 2002 al portador, por la suma de cincuenta mil dólares ($50.000).100) En fecha no determinada, pero con posterioridad al 26 de junio de 2002, conforme a la distribución del dinero pactado entre ellos, [Nombre01 064] entregó el certificado Nº Identificacion05 por cincuenta mil dólares ($50.000) al acusado [Nombre01 033] , quien lo recibió en su casa de habitación. Antes del 30 de julio de ese año, [Nombre01 033] , a su vez, entregó el certificado de referencia al señor [Nombre01 167] (quien desde el año 1994 laboró como administrador de las empresas vinculadas al encartado [Nombre01 033]), y le ordenó que realizara algunos pagos. a) Canceló el certificado Nº Identificacion05 y solicitó al Banco Cuscatlán de Costa Rica S.A., la emisión de tres cheques de gerencia que se confeccionaron con fecha 30 de julio de 2002, Nº 14589-1 por catorce mil setecientos cincuenta dólares ($14.750), Nº 14590-1 por cinco mil doscientos dólares ($5.200) y Nº 14591-6 por siete mil dólares ($7.000), a Nombre01 de [Nombre01 291] ; y retiró en efectivo la suma de veintitrés mil treinta y cinco dólares ($23.035). b) El 31 de julio de 2002, con el cheque de gerencia Nº 14589-1 canceló la deuda pendiente para ese momento de la tarjeta de crédito a Nombre01 del imputado [Nombre01 033] Nº 4732981669923003 del Banco Interfin, por un monto de cinco mil ciento cuarenta dólares con ocho centavos ($5.140.08). c) El 31 de julio de 2002, con el cheque de gerencia Nº 14590-1, [Nombre01 167] canceló el saldo en colones de trescientos veinticinco mil ochocientos cuatro colones con quince céntimos (¢325.804.15) y en dólares de cuatro mil trescientos dólares con cincuenta y seis centavos ($4.300.56), ambos de la tarjeta de crédito del imputado [Nombre01 033] Nº [Valor 014] del Banco Internacional de Costa Rica. d) Con el cheque de gerencia Nº 14591-6 por siete mil dólares ($7.000) a Nombre01 de [Nombre01 291], quien es el chofer del imputado [Nombre01 033] desde marzo de 1992, en acato de las instrucciones de [Nombre01 033], se cancelaron planillas, luz, agua, teléfono, impuestos, entre otras obligaciones de la familia de [Nombre01 033] ...”. Tal y como explicó el a quo de folios 16.170 a 16.186 frente, hay prueba documental que permite demostrar que [Nombre 080], esposa de [Nombre01 064], endosó cuatro certificados de inversión por $25.000 cada uno, todos al portador, constituidos con fondos de la cuenta de [Nombre02 058]., abastecida previamente con dinero originado en [Nombre01 060]. Asimismo, que el producto de dos de esos certificados fue reinvertido en el certificado de inversión Nº Identificacion05 del Banco Cuscatlán, también al portador, por la suma de $50.000, el cual fue endosado por [Nombre02 167], persona cercana a [Nombre01 033] y quien empleó parte del dinero para pagar dos tarjetas de crédito a Nombre01 de [Nombre01 033] y gastos de la casa de habitación de este. Ahora, aunque podemos sostener razonablemente que [Nombre01 033] por interpósitas personas - [Nombre01 058]., [Nombre 080] y luego [Nombre 167]- incorporó a su patrimonio fondos procedentes de [Nombre01 060], sin la declaración de [Nombre01 064] es imposible asegurar que esas sumas corresponden al pago o cumplimiento de una promesa de dádiva que recibió [Nombre01 064] con un contenido y propósitos específicos y [Nombre01 033] le determinó a aceptar . Esto mismo sucede con la tercera entrega de fondos , examinada de folios 16.186 frente en adelante y descrita en los hechos probados números 101 a 104: “101) Sin precisarse fecha, pero en el mes de agosto de 2002, el imputado [Nombre01 041] le anunció a [Nombre01 064] un tercer pago de la dádiva prometida. Con el propósito de no levantar sospechas en el sistema financiero nacional, [Nombre01 064] le solicitó que efectuase el depósito en dos cuentas, la Nº [Valor 015] en el Terrabank y la Nº [Valor 016] del BCT International Bank (off shore del Banco BCT), a Nombre01 de [Nombre 080]. 102) El día 14 de agosto de 2002, con los recursos de la cuenta Nº [Valor 012] de [Nombre 058]. del Banco Cuscatlán, abastecida con el dinero previamente depositado por [Nombre01 091], el encartado [Nombre02 028], conforme a la labor que le correspondía dentro de la distribución de funciones de los corruptores, solicitó al Departamento de Banca Personal del Banco Cuscatlán, transferir la suma de cien mil dólares ($100.000) a la cuenta Nº [Valor 015] de Terrabank, y la suma de quinientos noventa mil dólares ($590.000) en la cuenta [Valor 055] de BCT Bank International para luego transferirla a la cuenta Nº [Valor 016] de [Nombre01 080]. Estos fondos quedaron formalmente acreditados el 16 de agosto de 2002, luego de aplicadas las respectivas comisiones bancarias. 103) El 19 de agosto de 2002, [Nombre02 064] con los quinientos noventa mil dólares ($590.000) mencionados en el hecho anterior, dispuso que se emitiera el certificado de inversión Nº 25694 a 92 días plazo en el BCT Bank International por la suma de trescientos mil dólares ($300.000), mismo que se liquidó anticipadamente el 28 de octubre de los corrientes y tanto el principal como los intereses se acreditaron de nuevo a la cuenta Nº [Valor 016]. Esa misma fecha, [Nombre01 064] solicitó la emisión de tres certificados de inversión todos al portador, dos por cien mil dólares ($100.000) y uno por setenta mil dólares ($70.000), números 4523, 4522 y 4521 respectivamente y con fecha de vencimiento el 28 de enero de 2003. 104) Sin precisarse fecha, pero luego del 28 de octubre y antes del 27 de noviembre de 2002, de acuerdo con el plan y la distribución de la dádiva, establecida por el imputado [Nombre01 033], éste recibió personalmente del encartado [Nombre01 064] los certificados de inversión Nº 4521, Nº 4522 y Nº 4523 del Banco BCT S.A., y cien mil dólares ($100.000) en efectivo. El encartado [Nombre01 033] dispuso de este dinero como de seguido se expone: a) El título 4521 lo entregó para su venta a ACOBO S.A. junto con el respectivo cupón de interés el 04 de noviembre de 2002. Al día siguiente, ACOBO registró la venta de dicho título valor por un total de setenta mil cuarenta y cinco dólares con treinta y cinco centavos ($70.045.35), monto que acreditó en la cuenta Nº [Valor 017] de la esposa del imputado [Nombre01 033], [Nombre01 169]. Ese mismo día se adquirió 20 participaciones del “[Nombre01 171]” por el monto de ciento unos mil setenta y ocho dólares con setenta y ocho centavos ($101.078.78) que fueron cubiertas parcialmente con los fondos indicados. Posteriormente, el 12 de noviembre de 2002 se realizó la gestión de venta de las 20 participaciones citadas a la empresa [Nombre 172]., en cuya cuenta figuran como autorizados los señores [Nombre01 173] y [Nombre01 167], colaboradores del imputado [Nombre01 033]. Pese a que el representante judicial y extrajudicial de dicha sociedad es el señor [Nombre01 175], hijo de [Nombre01 033], lo cierto es que el último mantiene un ligamen real y directo con su manejo. b) Entre mediados y finales de noviembre de 2002, el imputado [Nombre01 033] entregó los títulos Nº 4522 y Nº 4523 a [Nombre01 173] , hombre de su confianza, a quien instruyó para que los depositara en ACOBO junto con los respectivos cupones de intereses, con el propósito de que el puesto de bolsa los negociara para hacerlos efectivos. Posteriormente, el monto de la venta se acreditó en la cuenta Nº [Valor 019] de [Nombre01 176] que aunque era formalmente representada por [Nombre01 173] y [Nombre01 167], el imputado [Nombre01 033] para ese momento mantenía un ligamen real y directo pese a no figurar legalmente como su presidente ni apoderado. c) Finalmente, como producto de la liquidación de los certificados mencionados en el punto anterior, el 02 de diciembre de 2002 se giró el cheque Nº 5118-1 contra la cuenta corriente [Valor 020] de ACOBO con el Banco Interfin, por ciento noventa y nueve mil setecientos noventa dólares ($199.790), a favor de [Nombre01 173], quien en esa misma fecha lo depositó en su cuenta corriente Nº [Valor 021] en el Banco San José, que en ese momento mostraba un saldo de $248.75. d) En noviembre del año 2002, [Nombre01 173] le planteó a [Nombre01 033] la posibilidad de participar como socio capitalista del señor [Nombre01 177] en un proyecto de vivienda para clase media alta que constaba de dieciocho casas y de seis apartamentos, ya que este último no contaba con suficiente dinero. [Nombre01 033] accedió a invertir en el proyecto, encargándole a [Nombre01 173] que con el producto del cheque Nº 5118-1 del Banco Interfin antes mencionado, hiciera efectiva la inversión. De tal forma, [Nombre01 173] giró dineros a partir de diciembre de 2002 y hasta julio de 2003 a favor de [Nombre01 177] o bien a favor de la empresa [Nombre 180], sociedad que representaba [Nombre01 177]. Para ocultar la participación de [Nombre01 033], la inversión se hizo por medio de una empresa propiedad de [Nombre01 173] denominada [Nombre 182]., representada por [Nombre01 187], quien era la secretaria de [Nombre01 167] y persona de confianza de [Nombre01 173], a su vez este último hizo un aporte personal al proyecto por quince mil dólares ($15.000). Para formalizar el negocio, se celebraron los siguientes contratos: i) Opción de compra entre [Nombre 183] en representación de la empresa [Nombre 184] ., propietaria del bien inmueble inscrito en el Partido de Heredia, matrícula de folio real Nº [Valor 022] y [Nombre01 177] siendo el valor total de la compraventa la suma de ciento cincuenta y dos mil ochocientos veinticinco dólares con sesenta y ocho centavos ($152.825.68). ii) Contrato del día 4 de diciembre de 2002, entre la sociedad [Nombre01 180] . representada por [Nombre01 177] y [Nombre 182]. representada por [Nombre01 187], por el cual se expresó que [Nombre01 182]. se encontraba interesada en participar en el proyecto habitacional de la sociedad [Nombre02 180]., aporta la suma de ciento cincuenta mil dólares ($150.000) y en razón del riesgo inicial de la inversión por [Nombre01 182] ., los lotes adquiridos se inscribirían a su nombre. Asimismo se estipuló que [Nombre 182] . recibiría setenta y cinco mil dólares ($75.000) en ganancias y el resto la empresa [Nombre 180]. Con posterioridad, aproximadamente tres meses después fue incrementado en cincuenta mil dólares ($50.000), quedando en total el aporte de [Nombre01 182] ., en doscientos mil dólares ($200.000). iii) Posteriormente se realizó otro contrato entre [Nombre01 177] y [Nombre01 187] en su condición de representante legal de [Nombre01 182] ., por medio del cual el primero cedió a la segunda la opción de compraventa inicial con la empresa Servicios Casablanca, la cual operó de forma automática. iv) Asimismo, el 4 de diciembre de 2002 mediante escritura pública ante el notario público Alex Thompson Chacón, la señora [Nombre01 183] como presidente con facultades de apoderada generalísima de [Nombre01 184] traspasó a la sociedad [Nombre01 182]., representada en ese acto por la señora [Nombre01 187], los siguientes inmuebles todos inscritos en el partido de Heredia: folio real Nº [Valor 023] con un área de 160.4 metros cuadrados; folio real Nº [Valor 024] con un área de 160.4 metros cuadrados; folio real Nº [Valor 025] con un área de 160.4 metros cuadrados; folio real Nº [Valor 026] con un área de 277.13 metros cuadrados; folio real Nº 146.397-000, con un área de 166.50 metros cuadrados; folio real Nº [Valor 027] con un área de 180.77 metros cuadrados; folio real Nº [Valor 028] con un área de 160 metros cuadrados; folio real Nº [Valor 029] con un área de 160 metros cuadrados; folio real Nº [Valor 030] área de 160 metros cuadrados. El precio total de los inmuebles se fijó en la suma de ochenta y seis mil setecientos sesenta y dos dólares con cuarenta y dos centavos ($86.762.42), constituyéndose asimismo hipoteca de primer grado por el valor de cita y sobre las fincas referidas. v) La recuperación proveniente de la venta de los inmuebles comenzó en marzo de 2003 e ingresó en las cuentas Nº [Valor 031] a Nombre01 de [Nombre 182]., Nº [Valor 032], Nº [Valor 033] y Nº [Valor 021] todas a Nombre01 de [Nombre01 173] en el Bac San José. Luego de varios movimientos financieros, del dinero que ingresó a la cuenta de [Nombre01 182], finalmente parte de este dinero fue recibido por el imputado [Nombre01 033], al registrarse entre el 08 de setiembre de 2003 y el 04 de junio de 2004, créditos a su favor por un total de cincuenta y dos mil doscientos veinte dólares ($52.220). Asimismo en la cuenta corriente Nº [Valor 031] de [Nombre 182] . al señor [Nombre02 173] se le acreditó en total la suma de ochenta y un mil doscientos cincuenta ($81.250), y al señor [Nombre01 167] se le acreditó la suma de setenta y nueve mil trescientos cincuenta dólares ($79.350) ...”. Tratándose de esta entrega, tenemos que después de una serie de transacciones que no interesa recapitular, se emitieron con base en los recursos de la cuenta de [Nombre 080] en el BCT Bank International, los certificados de inversión Nº 4523, 4522 y 4521, todos al portador, los dos primeros por $100.000 y el último por $70.000, mismos que tras varias transformaciones, terminaron en poder de personas jurídicas vinculadas de una u otra manera a [Nombre01 033]. Para los suscritos, aunque de lo anterior no hay duda alguna, pues el rastro seguido por el dinero se reconstruyó de forma meticulosa (cfr. folios 16.186 a 16.221 frente, tomo XXXIII), esto nada dice en cuanto a los motivos en virtud de los cuales [Nombre01 033] recibió esos fondos, siendo que este extremo solo se puede establecer a través del relato de [Nombre01 064] . Además, en esta entrega también se habla de $100.000 que según el imputado colaborador entregó en efectivo y en relación con los cuales no hay prueba alguna más allá de sus propias palabras, tal y como lo reconoce el mismo tribunal a folio 16.220 frente. Tratándose de la cuarta entrega que se ha tenido por probada, y que se examina de f. 16.221 a 16.231 frente, se habla de un cheque por $81.480 girado a [Nombre01 189]., empresa con la cual [Nombre01 033] tenía un ligamen directo. Dice el a quo en los hechos demostrados: “105) El día 10 de diciembre de 2002, con los recursos de la cuenta Nº [Valor 012] de [Nombre 058]. del Banco Cuscatlán, abastecida con el dinero previamente depositado por [Nombre01 091], el encartado [Nombre02 028], conforme a la labor que le correspondía dentro de la distribución de funciones de los corruptores, le entregó A [Nombre01 064] la suma de ciento ochenta mil dólares ($180.000), por medio de transferencia a la cuenta Nº [Valor 016] de [Nombre 080] en el BCT Bank International, menos el rebajo de la comisión bancaria por $9.50. 106) Con los recursos recién indicados [Nombre01 064] efectuó una inversión a 31 días plazo con vencimiento al 10 de enero de 2003 por la suma de doscientos mil dólares ($200.000). Al término del plazo, el dinero reingresó a su cuenta y [Nombre01 064] , de conformidad con las órdenes previas dadas por el coimputado [Nombre01 033], giró la directriz de emitir el cheque de gerencia Nº 012342 del BCT Bank International por la suma de ochenta y un mil cuatrocientos ochenta dólares ($81.480) a favor de la empresa [Nombre 189] . con la cual mantenía un ligamen real y directo. 107) Sin precisar fecha, pero posterior al 23 de enero de 2003, [Nombre01 064] le entregó al acusado [Nombre01 033] el cheque en la casa de los suegros de éste último. Luego el 3 de febrero de 2003, [Nombre01 033] depositó ese cheque de gerencia Nº 012342 en el Riggs Bank N.A de Washington D. C., el cual fue aplicado a la cuenta Nº [Valor 034] de la Empresa [Nombre 189]. directamente vinculada al imputado [Nombre01 033]. El encartado [Nombre01 033] posteriormente admitió haber recibido el importe de este cheque y otros dos -que más adelante se describirán- presuntamente a título de préstamo otorgado por [Nombre01 064], a quien realizó gestión de pago pero ésta fue rechazada por [Nombre01 064] ante la inexistencia de tal crédito por ser los montos provenientes de fondos de [Nombre01 091]...”. Sin la declaración de [Nombre02 064], además de ser imposible determinar con certeza la causa de este traslado de fondos, también es imposible descartar la tesis de la defensa, en el sentido de que estos eran parte de un préstamo que [Nombre01 064] hizo al entonces [...]. La quinta y última entrega, descrita en el hecho probado número 111) y examinada de folios 16.232 a 16.241 frente, es por aproximadamente $188.000, entregados de la siguiente forma: dos cheques (uno por $30.000 y otro por $28.083) y $131.000 en efectivo. Dice el a quo: “111) Aproximadamente en el mes de setiembre de 2003, en cumplimiento del plan y la distribución acordada, [Nombre01 064] le entregó ciento treinta y un mil dólares ($131.000) en efectivo al acusado [Nombre01 033] en la casa de su suegra. Asimismo siguiendo las instrucciones dadas por [Nombre01 033], elaboró dos cheques a favor de [Nombre01 169], los cuales se giraron en el mismo momento pero se consignaron diferentes fechas, diversas secuencias y por dos montos distintos, con el propósito de evitar sospechas dentro del sistema financiero. De esta forma, [Nombre01 064] giró el cheque número 419 con fecha 9 de setiembre de 2003 por un monto de treinta mil dólares ($30.000,00) y el Nº 425 por un monto de veintiocho mil ochenta y tres dólares ($28.083,00) con fecha 25 de setiembre de 2003, ambos contra la cuenta corriente número [Valor 056] de [Nombre 080] en el Saint George Bank, a favor de [Nombre01 169]. El imputado [Nombre 033], previo endoso de [Nombre01 169], depositó los cheques en la cuenta de ACOBO. Posteriormente el producto de los mismos fue registrado por ese puesto de bolsa como un crédito a la cuenta de inversiones Nº [Valor 017] a Nombre01 de [Nombre01 169] y utilizado en la compra de 11 participaciones en un fondo inmobiliario por un total de cincuenta y cinco mil novecientos dieciséis dólares con ochenta y nueve centavos ($55.916.89) y por el remanente se emitió un cheque por dos mil ciento cincuenta y dos dólares con ochenta y tres centavos ($2.152.83) a favor del Banco Interfin S.A. Posteriormente el encartado [Nombre01 033] admitió haber recibido el importe de estos dos cheques y otro -ya indicado- presuntamente a título de préstamo otorgado por [Nombre01 064], a quien realizó gestión de pago la cual fue rechazada por [Nombre01 064] ante la inexistencia de tal crédito, por ser tales montos provenientes de fondos de [Nombre01 091] ...”. Como se ha venido indicando, se ha tenido por demostrado un traslado de sumas en efectivo cuyo único apoyo probatorio es la declaración -ilícita e inverosímil- del imputado colaborador, Nombre02 como un traslado de fondos (los cheques mencionados) en relación con los cuales si bien hay prueba documental, se desconoce, por ser imposible de establecer con certeza, su razón de ser, cuestión que resulta esencial si se pretende condenar a [Nombre01 033] por haber instigado a [Nombre01 064] a aceptar una promesa de retribución económica con un contenido y unos propósitos específicos. En resumen, la declaración de [Nombre01 064] tiene un carácter esencial en el caso de [Nombre01 033]. Sin ella, no es posible tener por demostrado que [Nombre01 064] recibió una promesa de retribución económica sobre la cual informó a [Nombre01 033], siendo que este le dio el impulso necesario para aceptarla, definiendo además los porcentajes de distribución de la ganancia criminal que se llegara a obtener (y que, a mayor abundamiento, cabe adicionar, no se corresponden con lo efectivamente recibido por uno y por otro). Por todo lo anterior, corresponde anular la sentencia en cuanto declaró a [Nombre01 033] instigador de un delito de corrupción agravada por cohecho impropio cometido por [Nombre01 064]. Dicho esto, la pregunta que cabe hacer es si los hechos demostrados que se mantienen incólumes tras suprimir la promesa de dádiva anterior a la adjudicación de las 400.000 líneas -y que se sustenta a su vez, en prueba ilegal-, pueden subsumirse en algún tipo penal. La respuesta a esta interrogante, es no. Aunque en efecto y salvo los traslados de fondos en efectivo, está acreditado que [Nombre01 064] trasladó fondos a [Nombre01 033] en diversas ocasiones, sea de forma directa o a través de personas físicas o jurídicas cercanas a él, ni se imputaron ni se tuvieron por demostrados los elementos característicos de delitos distintos al de la corrupción agravada por cohecho impropio, tema que adquiere importancia mayúscula en el caso de [Nombre01 033], pues la única conducta que se le atribuyó a este es haber determinado a [Nombre01 064] para que este, como autor, admitiese una promesa de retribución económica en relación con el tema de las 400.000 líneas, a cambio de que desplegase acciones específicas en tres ámbitos (migración a tecnología GSM, licitaciones o concursos públicos y voto favorable a [Nombre01 091]). Por ende, solo vulnerando el principio de correlación entre acusación y sentencia e incluyendo circunstancias no previstas por el órgano requirente en su momento, se podría considerar a [Nombre01 033] autor de otro delito, incluso uno de carácter residual como lo es el de enriquecimiento ilícito. Por otra parte, tal y como se explicó al examinar la situación jurídica del imputado [Nombre01 001] , el tipo penal del enriquecimiento ilícito prevé tanto la admisión de dádivas presentadas como la admisión de dádivas ofrecidas. En el primer caso, la presentación y la recepción material de la retribución deben darse durante el desempeño del cargo. En el segundo, tanto el ofrecimiento como la admisión deben ocurrir en el lapso ya mencionado, siendo intrascendente, por ser un acto posterior impune, que el funcionario público se haga con la ventaja patrimonial una vez que se deja el puesto que motivó su ofrecimiento. En este asunto, la conducta típica a considerar es la primera, a saber, la admisión de dádivas presentadas, esto al no haber sido posible tener por demostrada ni la promesa de retribución económica hecha a [Nombre01 064] antes de la adjudicación (y que constituía el fundamento del delito de corrupción agravada por cohecho impropio), ni cualquier otro ofrecimiento de ventaja indebida a [Nombre01 033] (que, en todo caso, no fue imputado). Aclarado este punto, se tiene que las conductas de [Nombre01 033] que se describen en los hechos demostrados, las cuales se mantienen intactas tras el ejercicio de supresión hipotética (y que consisten en recibir las ventajas económicas que le fueron entregadas por [Nombre01 064]) no se pueden subsumir en el numeral 346 inciso 3) C.P. aplicable en este asunto, ya que con excepción de los siete certificados descritos en el hecho probado número 96, esas recepciones ocurrieron después de que el imputado dejó de ser presidente del país (cfr. hecho demostrado número 61 en relación con los ya transcritos), con lo cual se trata de acciones atípicas. Ahora, tratándose de los siete certificados de depósito al portador del Banco Internacional de Costa Rica S.A., si bien estos fueron admitidos durante el ejercicio del cargo, tal y como lo prevé el tipo penal, tras la exclusión hipotética del testimonio de [Nombre01 064] es imposible asegurar que estos le fueron presentados en consideración a su oficio. Quien entregó los certificados fue [Nombre01 064] , persona que para entonces además de ser funcionario público de alto rango, era alguien muy cercano a [Nombre01 033]. Además, los certificados fueron generados de la cuenta de la madre del colaborador, señora [Nombre01 166], cuenta que no tenía vínculo alguno con [Nombre01 060] . Así dicho y al menos en lo que a estos certificados respecta, no hay elementos para establecer que [Nombre01 064] los entregó a [Nombre01 033] por ser el [...]. Nombre71 bien señala Nombre66 al analizar el tipo de admisión de dádivas de la legislación argentina, que también en parte es similar al nuestro, es indispensable demostrar que la dádiva entregada lo ha sido en consideración al oficio del receptor, lo que Nombre05 descartar que no está vinculada con una circunstancia distinta, como puede ser la amistad u otra relación al margen de ese oficio (Nombre66, op. cit., pp. 280-281), lo cual resulta imposible en este asunto, por lo ya expuesto. Finalmente, como si lo ya dicho no bastase, se tiene que la acción penal para perseguir el delito de enriquecimiento ilícito estaría prescrita. En ese sentido, véase que [Nombre01 033] fue indagado el 15 de octubre de 2004 (f. 552 a 558 frente, tomo II). El plazo de prescripción para el delito de enriquecimiento ilícito era de 18 meses (lo anterior porque para entonces el procedimiento era ordinario), con lo que tenemos que ese lapso venció el 15 de abril de 2006, fecha para la cual ni había operado otra causal de interrupción del cómputo del plazo, ni había adquirido firmeza la resolución que declaró de tramitación compleja la causa (esto último ocurrió el 23 de junio de 2006). Es decir, antes de que el proceso mutara su naturaleza, se consolidó una situación jurídica a favor de [Nombre01 033] que, según admitió la misma Sala Tercera al ordenar el reenvío, impide aplicar los efectos del artículo 376 último párrafo del Código Procesal Penal. En ese sentido, y asumiendo el riesgo de incurrir en reiteraciones (pues el tema se abordó al examinar los casos de los coimputados [Nombre01 001] y [Nombre01 022]), el órgano de casación señaló: “Así las cosas, es claro, que la vigencia del efecto reductor del plazo prescriptivo como resultado de la tramitación ordinaria del expediente, Nombre11 estuvo sujeta a que la causa se mantuviera tramitándose como ordinaria, en cambio, cuando fue dictada y estuvo firme la tramitación compleja, en las etapas tempranas del proceso, la condición reductora de los plazos prescriptivos varió, conforme al numeral 376 citado, dado que la única excepción a ese razonamiento, se habría presentado en el supuesto en el que el plazo fatal prescriptivo hubiera fenecido antes de ese dictado, ya que en ese supuesto habría acaecido la extinción de la acción penal por prescripción, al tonarse esa circunstancia como una situación jurídica consolidada, a la que no habría podido aplicarse los efectos del artículo 376 antes citado ...” (Resolución Nº 1847-2014, considerando IV, f. 176.427 vuelto, tomo XLIII, el subrayado no es del original). En resumen, se tiene que, incluso siguiendo la interpretación hecha por la Sala Tercera sobre el artículo 376 del Código Procesal Penal, en el sentido de que la firmeza de la resolución que declaró de tramitación compleja el procedimiento suprimió el efecto reductor de los plazos de prescripción que tuvo lugar antes de esa firmeza, lo cierto es que para la fecha de esa declaratoria ya había una situación jurídica consolidada a favor de [Nombre01 033] que no es posible desconocer, por haber operado el término de la prescripción. De igual forma, la entrada en vigencia del artículo 62 de la ley N° 8422, denominada Ley contra la corrupción y el enriquecimiento ilícito en la función pública, no modifica esta conclusión, ya que [Nombre01 033] compareció a rendir su declaración indagatoria el 15 de octubre de 2004, es decir, antes de que la citada normativa fuese publicada (el 29 de octubre de 2004). Como se explicó supra , el mismo órgano de casación, en la resolución N° 2014-1847, específicamente en el considerando IV.-, folios 176.429 a 176.431 frente, reconoció que no es posible dar efectos retroactivos a una ley procesal posterior, no solo porque tratándose de leyes procesales la que se debe aplicar es la que se encuentre vigente al momento de realizar el acto, sino también porque la Constitución Política en su artículo 34 contempla una prohibición general para aplicar las leyes de forma retroactiva en perjuicio de persona alguna. Afirma el Ministerio Público que si la prescripción no había operado para cuando entró en vigencia la citada ley, es plausible aplicar sus efectos a actos procesales realizados anteriormente, pues “…no se dejaba sin efecto retroactivamente los actos interruptores acaecidos con anterioridad como erróneamente interpreta el imputado [Nombre01 033] - sino que se dejó sin efecto la reducción de los saldos pendientes, los cuales se ampliaron a partir de ese momento y hasta por el término completo, según la penalidad abstracta de cada delito ...” (F. 176.933 frente, tomo XLIV). Los suscritos respetamos pero no compartimos estos argumentos. Se puede decir de distintas formas y negar que se está vulnerando el artículo 34 de la Constitución Política, sin embargo, lo que se pretende finalmente es que los efectos del artículo 62, vigente a partir del 29 de octubre de 2004, afecten un acto procesal interruptor y reductor del plazo de prescripción que tuvo lugar antes de esa fecha, a saber, el día 15 de octubre de 2004, restándole todo valor a la normativa bajo la cual ese acto se produjo (a saber, el artículo 33 párrafo primero del C.P.P.). A mayor abundamiento, nótese que de la ley N° 8422 no se extrae que el legislador hubiese contemplado aplicar las reglas de prescripción contenidas en el numeral 62 de una forma distinta a la que corresponde tratándose de cualquier norma instrumental (entiéndase, a partir de su entrada en vigencia y a futuro). Finalmente, es importante acotar que en la resolución N° 1847-2004 que cita el Ministerio Público como fundamento de su postura (f. 176.934 frente, segundo párrafo), la Sala Tercera asumió la tesis contraria a la que esa parte procesal expone, a saber, que la ley N° 8422 es aplicable a los actos procesales realizados a partir del 29 de octubre de 2004, razón por la cual solo en relación con los imputados que fueron indagados después de esa fecha ([Nombre01 018] y [Nombre01 006]) argumentó que, una vez operada la interrupción, el plazo de prescripción corrió completo en los términos que señala el artículo 62 inciso a) de la mencionada ley. En resumen y siendo que tras el proceso de exclusión hipotética que se ha venido realizando, la prueba restante no permite tener por demostrado que [Nombre01 033] actuó como instigador en el delito de corrupción agravada en su modalidad de cohecho impropio cometido por [Nombre02 064], y habiéndose descartado la aplicación de otros tipos penales residuales a los hechos demostrados que se mantienen incólumes tras la citada exclusión, se anula la sentencia en cuanto declaró a [Nombre01 033] instigador de un delito de corrupción agravada por cohecho impropio cometido por [Nombre01 064] y, en aplicación del principio in dubio pro reo y por economía procesal, se le absuelve de toda pena y responsabilidad por esa delincuencia. Por innecesario, se omite pronunciamiento sobre los demás reclamos por él formulados a título personal, Nombre02 como sobre los recursos planteados por su defensor, el licenciado Rafael Gairaud Salazar.
• 6)[Nombre02 041] y [Nombre02 028]: El tribunal tuvo por demostrado que [Nombre01 041] y [Nombre01 028] cometieron tres delitos de penalidad del corruptor en relación con los delitos de corrupción agravada por cohecho impropio atribuidos a [Nombre01 022], [Nombre01 001] y [Nombre01 064]. Adicionalmente, se atribuyó a [Nombre01 041] un delito de penalidad del corruptor en relación con el delito de corrupción agravada por cohecho impropio cometido por [Nombre01 068]. Para efectos de orden, primero se analizarán los delitos que se entienden cometidos por ambos imputados y luego aquel que se atribuyó solamente a [Nombre01 041]. 6.a) Delitos de penalidad del corruptor en relación con [Nombre 001], [Nombre01 022] y [Nombre 064]: Se tuvo por demostrado que en diciembre de 2000, [Nombre01 078] y [Nombre 041] le prometieron a [Nombre 064] una dádiva a cambio de que este realizara las acciones necesarias como director del I.C.E., para impulsar la migración de tecnología TDMA a GSM, evitar que el proceso de licitación de las 400.000 líneas fuera abortado y finalmente, votar a favor de la adjudicación de dicha licitación a la empresa [Nombre 091] (hecho probado número 87.-, folio 15.438 frente, tomo XXXII). Tratándose de [Nombre 022], se tuvo por acreditado que entre finales del año 2000 y principios de 2001, los imputados [Nombre01 041] y [Nombre01 078] le solicitaron realizar las acciones necesarias dentro del ámbito de sus funciones como Directivo del I.C.E. en apoyo de los intereses de [Nombre02 091], primordialmente, impulsar la migración de tecnología TDMA hacia tecnología GSM, promover las compras por medio de licitaciones y evitar que fueran abortadas y que una vez autorizado el proceso de contratación de las 400.000 líneas, le solicitaron votar a favor de la adjudicación de esa licitación a la empresa [Nombre 091] , siendo que a cambio de todo lo anterior, le prometieron la entrega de una dádiva, promesa que fue aceptada por [Nombre01 022] (hecho número 117, f. 15.451 frente). En cuanto a [Nombre01 001], el a quo tuvo por demostrado que en el período comprendido entre fines del 2000 e inicios de 2001, los encartados [Nombre01 041] y [Nombre01 078] le solicitaron realizar 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 [Nombre01 091] y que cambio de lo anterior, le prometieron la entrega de una dádiva, promesa que fue aceptada por el funcionario público. Asimismo, se acordó que la entrega del dinero estaría condicionada a la efectiva adjudicación de la oferta que presentaría [Nombre01 091] al I.C.E. (hecho N° 131, f. 15.455 frente). En lo que [Nombre01 028] respecta, en el fallo de mérito se le consideró coautor de los hechos antes mencionados, al entender que en el reparto de funciones acordado con [Nombre01 041] para la realización de los delitos, él tenía la tarea de recibir los fondos de [Nombre01 060] y trasladarlos a los funcionarios públicos corruptos (hecho probado número 56, f. 15.431 frente). Esta cámara no reiterará los argumentos señalados por el a quo para tener por demostrado que [Nombre01 041], en contubernio con otras personas, formuló a [Nombre02 001], [Nombre01 022] y [Nombre01 064], una promesa de retribución económica con anterioridad a la adjudicación del contrato de las 400.000 líneas, como tampoco los razonamientos que llevan a estos jueces de apelación a concluir que la acreditación de ese hecho es insostenible, ya que sobre esto se ha hecho una amplia exposición anteriormente y a la cual deben remitirse las partes. Basta con subrayar como punto de partida que, excluida hipotéticamente la declaración de [Nombre02 064], es imposible afirmar con certeza ese extremo. Si bien se puede asegurar que [Nombre01 041] y [Nombre01 028], a través de [Nombre01 058]., entregaron a las citadas personas importantes sumas de dinero, solo se puede sostener con un grado de probabilidad (insuficiente para fundar una sentencia condenatoria) que esas sumas estaban destinadas a cumplir con una promesa anterior, al punto que tampoco se pueden descartar otras hipótesis igualmente plausibles, por ejemplo, que se tratase de retribuciones por un acto cumplido (sin promesa anterior, lógicamente), o que hubiesen sido los funcionarios públicos los que solicitasen su pago. Ahora, descartar la promesa de retribución económica no solo impide aplicar el tipo penal de corrupción agravada por cohecho impropio en el caso de los tres funcionarios públicos mencionados, sino también aplicar el de penalidad del corruptor contemplado en el artículo 345 del Código Penal vigente para el momento en que ocurrieron los hechos investigados. Este numeral señalaba: “Las penas establecidas en los cinco artículos anteriores son aplicables al que diere o permitiere al funcionario público una dádiva o la ventaja indebida”. Como se extrae de su sola lectura, se está ante una norma penal en blanco, que remite a otros artículos del mismo Código Penal para establecer un elemento subjetivo adicional al dolo, que debe caracterizar la realización de la conducta prohibida, Nombre02 como la pena a imponer. El numeral prohíbe el dar o permitir una dádiva o ventaja indebida a un funcionario público con alguno de los propósitos señalados en los cinco artículos que le preceden. Es decir, con independencia de la decisión que adopte el funcionario público frente al planteamiento del corruptor, para penalizar a este último es indispensable que su conducta esté dirigida a la búsqueda de determinadas finalidades que han sido contempladas por el legislador en las disposiciones anteriores al numeral 345 mencionado. El tipo penal complementario, Nombre02 como la sanción a imponer, dependen entonces, del para qué se da o permite la dádiva. Por ejemplo, si el corruptor la dio para que el funcionario público realizara un acto contrario a sus deberes, o para no hacer o para retardar un acto propio de sus funciones, la pena que le corresponderá será la del cohecho propio, que oscila entre dos y seis años de prisión e inhabilitación para el ejercicio de cargos y empleos públicos de diez a quince años. Si el corruptor la dio por un acto cumplido u omitido por el funcionario público en esa calidad, sin que haya mediado promesa anterior, la pena que procederá imponer será la antes expuesta disminuida en un tercio, pues Nombre02 lo dispone la norma que contempla el delito de aceptación de dádivas por un acto cumplido. Del mismo modo, si dar o permitir la retribución económica o ventaja indebida en los términos descritos en los delitos de cohecho propio o impropio tiene como fin el otorgamiento de puestos públicos, jubilaciones, pensiones o la celebración de contratos en los cuales esté interesada la administración a la que pertenece el funcionario, la pena del corruptor oscilará entre 1 y 5 años si los hechos son los descritos en el cohecho impropio y de 3 a 10 años en el caso del cohecho propio. En resumen, para sancionar al corruptor es indispensable haber demostrado que este dio o permitió la dádiva con alguno de los propósitos contemplados en los cinco artículos anteriores al numeral 345 del Código Penal, lo que en este caso no es plausible por las razones expuestas en anteriores acápites y que se pueden reducir, a riesgo de incurrir en una simplificación excesiva de las cosas, a que sin la declaración de [Nombre01 064], del análisis las restantes pruebas es imposible derivar un juicio de certeza y no de probabilidad, acerca de la existencia de la promesa de dádiva, del contenido y de los propósitos que perseguía esta. Una vez suprimida hipotéticamente la prueba ilícita, no cabe asegurar que [Nombre01 041], en contubernio con [Nombre01 028], prometió (conducta que, con una interpretación en extremo cuestionable pero avalada por la Sala Tercera, el a quo consideró comprendida por el verbo dar) una ventaja económica a varios funcionarios públicos, para que efectuasen actos propios de sus funciones con el propósito de que [Nombre01 091] se viese favorecida con el contrato de las 400.000 líneas, finalidad que es justamente la contemplada en el delito de corrupción agravada, que es uno de los cinco artículos que preceden el de penalidad del corruptor y que a su vez, remite expresamente al delito de cohecho impropio, en lo que aquí interesa. Excluida la promesa de retribución, lo que queda incólume es que [Nombre01 041] de común acuerdo con [Nombre 028], trasladó dineros de [Nombre01 060] a [Nombre 001], [Nombre01 022] y [Nombre01 064], sin embargo, esto por sí solo no configura delito alguno. En primer lugar, no es penalidad del corruptor porque, como ya se explicó, es imposible establecer con certeza cuál fue la razón de ser de los pagos. Incluso admitiendo hipotéticamente que los dineros entregados tenían alguna relación con el ámbito de la telefonía móvil, o incluso con el contrato de las 400.000 líneas, de la prueba examinada solo se extrae un juicio de probabilidad acerca de que estaban destinados a cumplir una promesa hecha antes de la adjudicación de ese contrato, a cambio de que los funcionarios públicos realizaran determinadas acciones propias de su cargo que favorecían a [Nombre01 091], siendo igualmente plausible considerar otras hipótesis muchas veces mencionadas, verbigracia, que los fondos fueron entregados a modo de retribución por un acto cumplido sin promesa anterior, o que fueron los funcionarios los que solicitaron o demandaron su pago, hipótesis que en todo caso, no fueron acusadas por el Ministerio Público. En suma, de las pruebas que han sido obtenidas e incorporadas al debate de manera lícita, es imposible tener por demostrada la promesa de dádiva que fue imputada (esto es, una promesa a cambio de que funcionarios públicos realizaran acciones futuras, propias del cargo, para favorecer a [Nombre01 091] en la obtención del contrato de las 400.000 líneas) y, en ese tanto, es insostenible la condena impuesta a [Nombre01 041] y [Nombre02 028] por el delito de penalidad del corruptor por corrupción agravada por cohecho impropio. Cabe añadir que este resultado no variaría aún si se dejara de lado el tema de la promesa y se pusiera énfasis en la entrega material de las dádivas, básicamente por dos razones, a saber, i) porque el prometer una retribución económica a ciertos funcionarios públicos (y no el entregarles la dádiva después de la adjudicación) es la única conducta que, en el contexto de los hechos imputados y demostrados, se puede subsumir en el delito de penalidad del corruptor por corrupción agravada por cohecho impropio y, ii) porque la penalidad del corruptor es atípica tratándose del enriquecimiento ilícito. De seguido se va a profundizar en ambos argumentos. En cuanto al primero, según el texto legal vigente para la época en que ocurrieron los hechos investigados, en el delito de penalidad del corruptor la acción típica consistía en dar o permitir dádivas o ventajas indebidas a un funcionario público con los propósitos descritos en los “cinco delitos anteriores”, a saber: i) corrupción de jueces; ii) ofrecimiento u otorgamiento de dádiva o retribución (derogado en 2008); iii) aceptación de dádivas por un acto cumplido; iv) corrupción agravada (tipo penal que fue el aplicado por el tribunal de mérito y cuya descripción típica se integra por expresa disposición del legislador, con los tipos penales del cohecho propio e impropio, según corresponda); y finalmente, v) el cohecho propio. Como se observa, sea que se hable de la promesa de dádiva (como lo hizo el tribunal de mérito al considerar que el verbo prometer está abarcado por el verbo dar), o de la entrega material de la retribución (ahora sí, en plena consonancia con el verbo dar contemplado en el art. 345 C.P.), la penalidad del corruptor demanda que la conducta prohibida esté dirigida por alguno de los propósitos descritos en los tipos penales antes mencionados y, en este caso, ni se imputó ni se tuvo por demostrado que los fondos fueron entregados antes de la adjudicación a los funcionarios públicos a cambio de que estos hiciesen actos (futuros) propios de sus funciones que fuesen favorables a [Nombre01 091] en el tema de las 400.000 líneas (este es el propósito). Lo que se indicó fue que [Nombre01 041] y [Nombre01 028] dieron la dádiva luego de la adjudicación, para cumplir con una promesa anterior que perseguía los propósitos ya mencionados. Dicho en otras palabras, es la promesa de dádiva y no la entrega material de esta la conducta que complementa el delito de penalidad del corruptor con el tipo penal de la corrupción agravada y el cohecho impropio y, por tanto, solo en relación con esta se puede considerar la aplicación del numeral 345 citado supra. En consonancia con lo anterior, si no se puede tener por demostrada esa promesa de dádiva contemplada en la acusación, el delito no se puede entender como configurado, esto a pesar de que se haya acreditado un traslado de fondos a algunos funcionarios. En cuanto al segundo argumento, basta con señalar que los hechos que se mantienen incólumes tras suprimir hipotéticamente la referencia a la promesa anterior, son atípicos, incluso si se partiera de que [Nombre01 041] y [Nombre01 028] presentaron las ventajas económicas a [Nombre02 064], [Nombre01 001] y [Nombre01 022] en consideración a su oficio y durante el ejercicio del cargo, ya que la penalidad del corruptor solo se prevé en relación con los cinco artículos precedentes a ese delito y el enriquecimiento ilícito no era para la fecha de los hechos, ni lo es ahora, parte de ese grupo. Tan claro es el tema que el legislador ubicó el enriquecimiento ilícito después del delito de penalidad del corruptor, con lo cual este, al aludir a los “artículos anteriores”, no lo comprende. En suma, habiéndose descartado, por ser imposible de demostrar sin la prueba ilícita, que [Nombre01 041] de común acuerdo con [Nombre01 028] cursó promesas de dádiva a [Nombre02 064], a [Nombre02 022] y a [Nombre01 001] para que estos realizaran actos propios de sus funciones, dirigidos a que [Nombre01 091] obtuviese el contrato de las 400.000 líneas y siendo que, además, tras ese ejercicio de supresión hipotética que se ha venido realizando, los hechos que se mantienen incólumes tratándose de [Nombre01 041] y [Nombre01 028] (que en esencia, se reducen a la entrega material de las ciertas sumas a los funcionarios públicos) no satisfacen los requerimientos de ningún tipo penal, se anula la sentencia en cuanto declaró a ambos imputados coautores responsables de tres delitos de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio en concurso material, en relación con [Nombre01 022], [Nombre01 001] y [Nombre01 064] y, en su lugar, por economía procesal y en aplicación del principio in dubio pro reo , se les absuelve de toda pena y responsabilidad por los delitos antes referidos. 6.b) Delito de penalidad del corruptor atribuido a [Nombre01 041] en relación con [Nombre 068]: El tribunal de mérito también condenó a [Nombre02 041] como autor responsable de un delito de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio, este cometido por [Nombre01 068]. A continuación, se procederá a explicar porqué tras la declaratoria de ilegalidad del criterio de oportunidad otorgado a [Nombre01 064], es imposible tener por demostrado ese delito. Lo primero que hay que mencionar es que según expuso el tribunal en su voto de mayoría, la promesa de dádiva a [Nombre01 068] la formuló [Nombre01 105], en contubernio con [Nombre01 046]. Para el a quo, la relación de [Nombre01 041] con este hecho resulta de su condición de jerarca de [Nombre01 091] en el país y de haber actuado con [Nombre01 105] (representante de [Nombre01 114].) de la misma manera que lo hizo con [Nombre01 028] (representante de [Nombre01 058].), usando esas sociedades anónimas para suscribir contratos de consultoría que no se correspondían con la realidad, con el propósito de ingresar los recursos económicos de [Nombre01 060] que luego fueron repartidos entre los funcionarios públicos. De folios 15.767 y siguientes del tomo XXXII, el a quo concluyó que a [Nombre01 068] se le cursó una promesa de dádiva (de la cual se debe atribuir responsabilidad a [Nombre01 041]), en virtud de lo siguiente: i) Con la prueba Nº 747 se determina que a [Nombre01 068] se le siguió proceso por el delito de corrupción agravada en la modalidad de cohecho impropio, acogiéndose a un procedimiento abreviado mediante el cual resultó condenado (sentencia Nº 586-07 de las 14:50 horas del 16 de octubre de 2007). La dádiva según se dijo en esa resolución, fue prometida por medio de [Nombre02 114]., cuyo representante, [Nombre01 105], también se sometió a un procedimiento abreviado (sentencia Nº 260-09 de las 14:15 horas del 21 de julio de 2001). Según el tribunal, estas sentencias han sido consideradas “…en relación con quienes se sometieron a tales procedimientos y únicamente con el tipo de delito por el que resulten condenados, la sanción, partes y eventuales reparaciones u otros datos meramente referenciales, sin que en ningún caso se valoren los hechos probados y demás contenido ...” (F. 15.768 frente). ii) La ideación del plan criminal respondió a varios antecedentes, uno de especial importancia, a saber, que [Nombre01 091] no era considerada por el ICE en materia de telefonía móvil, lo cual llevó a [Nombre01 041] y a [Nombre 078] a estimar necesario canalizar dineros procedentes de [Nombre01 060] para otorgar dádivas a funcionarios públicos; iii) de la prueba documental (a saber, el oficio Nº 813 del 23 de enero de 2001 de la Contraloría General de la República y las actas de las sesiones Nº 5271 y 5277 del Consejo Directivo del ICE), se extrae que el 23 de enero de 2001 la Contraloría General de la República autorizó el procedimiento concursal abreviado para la contratación de las 400.000 líneas celulares de tecnología GSM. Pese a esto, el Consejo Directivo autorizó por unanimidad la contratación directa Nº 108792 para ampliar la red móvil GSM a [Nombre01 091], lo que satisfacía sus intereses comerciales y propiciaba de paso su incursión en la tecnología GSM. No obstante, en la siguiente sesión [Nombre01 068] solicitó revocar esa decisión, lo que no prosperó. Esto llevó a que [Nombre01 041] y [Nombre01 078] vislumbraran la necesidad de reclutar a este miembro del consejo, como lo hicieron con [Nombre01 064], [Nombre01 191] y [Nombre02 001] (f. 15.768 y 15.769 frente); iv) para prometer la dádiva a [Nombre 068], se echó mano de [Nombre01 105] . A este pertenece la sociedad anónima [Nombre02 114]., que originalmente representó a [Nombre 060] en el país. Una vez que se estableció [Nombre01 091], [Nombre01 114] . se mantuvo dentro de sus instalaciones y les ofreció asistencia en el área técnica (f. 15.769 frente); v) en razón de la buena relación que había con [Nombre01 105] (y de la que dan cuenta varios testigos), y siendo que [Nombre01 114]. figuraba para entonces como consultora ante [Nombre01 292], empresa que representaba a su vez a [Nombre02 060], se suscribieron contratos de consultoría simulados, para generar los fondos de [Nombre01 060] que luego fueron entregados a funcionarios públicos (f. 15.770 a 15.772 frente); vi) no hay prueba directa de la solicitud de [Nombre01 105] a [Nombre01 046] para que propiciara el encuentro con [Nombre02 068], sin embargo, [Nombre01 046] tenía un ligamen previo con [Nombre01 105] y tenía una relación de confianza con [Nombre01 068]. Asimismo, [Nombre01 046] ejercía labores de lobby para aproximarse a funcionarios públicos y, antes de los hechos investigados, había hecho esas labores para [Nombre01 091]. También fungió como intermediario en el pago de la dádiva que se le hizo a [Nombre01 068], siendo que además [Nombre01 046] recibió de [Nombre01 114]. una fuerte suma por aproximar a [Nombre01 105] y a [Nombre02 068] y luego trasladó esa dádiva a [Nombre01 068], con lo cual “…refleja su conocimiento de que era la dádiva pagada a [Nombre01 068] por su voto positivo a [Nombre01 091] en las 400.000 líneas celulares y porque [Nombre01 068] y [Nombre01 105] fueron sentenciados por delitos convergentes.” (F. 15.773 frente). A partir de este punto, en la sentencia se hace un examen más exhaustivo de los indicios reseñados para demostrar la promesa de dádiva, específicamente, del vínculo entre [Nombre01 046], [Nombre01 105], [Nombre01 114] ., [Nombre 060] y [Nombre01 091] Costa Rica (f. 15.773 a 15.775 frente); las labores de lobby y cabildeo que en el pasado había hecho [Nombre02 046] ante funcionarios públicos en beneficio de [Nombre01 091] (f. 15.775 a 15.777 frente); el vínculo entre [Nombre01 068] y [Nombre01 046] (f. 15.777 a 15.781 frente), ligamen que también nació antes de los hechos que aquí interesan y que se pone en evidencia con el manejo dado a las ganancias ilícitas y de las reuniones entre [Nombre01 105] y [Nombre01 068] (f. 15.781 a 15.783 frente), encuentros que según [Nombre01 193] tuvieron lugar al menos en dos oportunidades, en Coronado, lugar donde está situada la empresa [Nombre 085]., de la cual [Nombre01 068] es presidente y representante judicial y extrajudicial. Además, apunta la resolución, si bien no hay prueba de que [Nombre01 046] estuviese presente en esas reuniones, queda claro que fue él quien puso en contacto a [Nombre01 105] con [Nombre01 068] (f. 15.781 a 15.783 frente). En el fallo también se explica cómo [Nombre02 068], como miembro del consejo director del ICE, intervino en la votación del 28 de agosto de 2001 donde se decidió la adjudicación (f. 15.783 a 15.784 frente). Para el tribunal, a [Nombre01 068] se le cursó una promesa de dádiva para que votase a favor de esta adjudicación y en cuanto al tema, remite a lo expuesto en relación con el plan ideado por [Nombre01 041] y [Nombre01 078], de proponer contratos de consultoría a favor de dos empresas que habían desempeñado actividades comerciales con [Nombre01 060], una de ellas [Nombre01 114]., cuyo gerente es [Nombre01 105]. Se simularon esos contratos, la empresa se convirtió en acreedora de [Nombre01 060] y luego, con los recursos recibidos, se pagó la dádiva prometida a [Nombre01 068]. Añade el tribunal de mérito que en tanto a [Nombre01 022] y a [Nombre01 064] los fondos se les trasladaron por medio de [Nombre02 058]. ([Nombre 028]), a [Nombre 068] se le hicieron llegar a través de [Nombre01 114]. ([Nombre 105] ), siendo que había un mismo propósito y un tronco común ([Nombre01 041] y [Nombre01 078]). Además, las sumas pagadas son similares. Para las juezas que suscribieron el voto de mayoría, el hecho de que [Nombre01 068] fuese directivo del ICE y que [Nombre01 046] propiciase el encuentro entre aquel y [Nombre01 105] antes de la votación en que se adjudicaron las 400.000 líneas, permite concluir que la dádiva fue ofrecida en ese momento a cambio de su voto afirmativo. Y es que [Nombre01 046] se desenvuelve en el medio y conoce a los directivos y de esto también da cuenta su acercamiento a [Nombre01 064], para pedirle ayuda con los montos que le adeudaba [Nombre01 091]. En igual sentido, el traspaso del dinero vía [Nombre01 060] - [Nombre01 114] - [Nombre01 046] - [Nombre01 068], demuestra que el acto que ejecutó este último fue para recibir un pago por un acto propio de sus funciones y que, previo a este acto, fue que se le hizo la promesa de retribución. Finalmente, se afirmó que [Nombre01 046] tenía conocimiento de que el dinero ofrecido y entregado por su medio a [Nombre01 068] , era por haber emitido su voto favorable a la adjudicación de las 400.000 líneas. Como sustento de esta conclusión, el tribunal alude a lo atípico que resultó el contrato de las 400.000 líneas, no solo por su cuantía, sino por la enorme demanda que existía para entonces. De la prueba testimonial (declaraciones de [Nombre01 128], [Nombre01 195] y [Nombre01 095]), se extrae que era un proyecto trascendental en la historia del ICE. Este tema era conocido por [Nombre 046], no solo por moverse en el ámbito de las telecomunicaciones, sino por su relación con [Nombre01 105]. Además, el tema fue publicitado ampliamente. En este punto, el tribunal también destaca la declaración de [Nombre02 064] . Este indicó que en la reunión en [Nombre01 094], [Nombre 041] y [Nombre02 078] le hablaron de la importancia que tenía para [Nombre01 091] que el ICE migrase a esquemas abiertos de telefonía, que usara la licitación como método de adquisición de tecnología y que él votase a favor de la empresa, esto también porque, según [Nombre01 041] y [Nombre01 078] le comentaron, en una fecha cercana, [Nombre01 046] les había dicho que podía incidir en esa decisión de forma perjudicial para los intereses de [Nombre01 091], e incluso había anunciado que contaría con el respaldo del Poder Ejecutivo, manifestación que para el tribunal demuestra el conocimiento de [Nombre01 046] sobre cuáles eran las prioridades de [Nombre01 091] (migración y licitación), Nombre02 como sobre el procedimiento definido a principios del año 2001 por la Contraloría General de la República. También se consideró que por la cercanía entre ambos, [Nombre01 046] sabía de la posición de [Nombre01 068] en el ICE. Esa cercanía se evidenció igualmente, con la forma de recibir y disponer de la dádiva (específicamente, [Nombre01 068] solicitó a [Nombre01 046] una cuenta bancaria para recibir parte de los pagos). Por último, se reiteró la referencia a las sentencias condenatorias dictadas en contra de [Nombre01 068] y [Nombre01 105] y las aceptaciones de cargos hechas por ambos en cuanto a los hechos (f. 15.785 a 15.789 frente). vii) Asimismo, el a quo examinó los contratos de consultoría suscritos por [Nombre02 114]. con [Nombre01 091], los dineros entregados a [Nombre01 068] por esta vía, Nombre02 como las ganancias obtenidas por [Nombre01 046] y [Nombre01 105] (f. 15.789 a 15.828 frente). Con base en todo lo expuesto, condenó a [Nombre01 046] por el delito de penalidad del corruptor por corrupción agravada en su modalidad de cohecho impropio en relación con los hechos imputados a [Nombre01 068] (f. 15.833 frente y siguientes). Ahora, tratándose de [Nombre01 041], lo que afirmó el fallo recurrido es que este imputado actuó de común acuerdo con [Nombre01 105] y [Nombre01 046] para lograr aproximarse a [Nombre01 068] y hacer el ofrecimiento remuneratorio. Además, que [Nombre01 041] era el tronco común entre la distribución de dádivas vía [Nombre01 058]. y vía [Nombre02 114]., de manera que él conocía que los contratos de consultoría suscritos por [Nombre01 105] eran tan simulados como los de [Nombre01 058]. y que ese mecanismo es el que se había implementado para dotar de recursos el brazo ilícito que permitiría pagar dineros a [Nombre01 068], contando con la contribución de [Nombre01 046] en cuanto a la indicación de las cuentas y demás datos que debían coordinarse para cada entrega (f. 15.726 frente, tomo XXXII). Analizados los anteriores razonamientos, esta cámara estima que, tras excluir hipotéticamente el “testimonio” de [Nombre01 064] , no es posible demostrar con certeza que [Nombre02 041] haya sido coautor de una promesa remuneratoria cursada a [Nombre01 068] por [Nombre01 105]. Como se ha venido señalando, este tribunal no pone en tela de duda la situación de [Nombre01 091] en el ámbito de la telefonía móvil, la entrega a funcionarios públicos de sumas importantes (en cantidades similares, además) que se efectuó después de adjudicado el contrato de las 400.000 líneas GSM, la relación de confianza entre [Nombre01 046] y los jerarcas de [Nombre01 091], e incluso el mecanismo mediante el cual ingresaron los fondos que luego serían repartidos entre los funcionarios públicos (entiéndase, contratos de consultoría suscritos con [Nombre01 058] . e [Nombre01 114].). Sin embargo, no cabe asegurar con certeza que las sumas que recibió [Nombre01 068] fuesen para cumplir una promesa -anterior a la adjudicación- que le cursó [Nombre01 105] de común acuerdo con [Nombre01 041]. Aunque se puede tener por cierto que este último justiciable distribuyó fondos de [Nombre01 060] entre varios funcionarios públicos, sobre la promesa y los propósitos perseguidos con la misma la prueba fundamental es la declaración de [Nombre01 064], al punto que excluida hipotéticamente esta, no es plausible descartar otras hipótesis, por ejemplo, que se trate de retribuciones económicas admitidas por un acto cumplido y sin que hubiese una promesa anterior, que los mismos funcionarios públicos indujesen ese pago, o que existiendo una promesa, esta tuviese un contenido distinto. Véase también que fue [Nombre01 064] quien en el debate habló de la preocupación de [Nombre01 041] y [Nombre01 078] por lo que a su vez les manifestó [Nombre02 046], en el sentido de que tratándose del otorgamiento del contrato de las 400.000 líneas podía incidir y perjudicar a [Nombre01 091], afirmación que usó el a quo para comprender el interés de los corruptores por acercarse a los directivos del ICE antes de que se adjudicara ese contrato. Incluso, el papel que el voto de mayoría asignó a [Nombre01 046] en esta trama se estableció en buena parte gracias a lo dicho por [Nombre01 064], pues -según este- [Nombre01 046] acudió a él para que le ayudase a cobrar dineros de [Nombre01 091] que le adeudaban por sus servicios. Tan claro es el peso que tiene el testimonio de [Nombre02 064], que en este acápite de la sentencia se apeló al paralelismo entre su situación y la de [Nombre01 068] , afirmando que son dos de los directivos que recibieron dinero de [Nombre01 091] y que recibieron promesas de dádivas, conclusión a la que se llega porque Nombre02 lo dijo el primero y porque [Nombre01 068] fue sentenciado por ello. Sin embargo, suprimida hipotéticamente la declaración del imputado colaborador y teniendo presente que las sentencias condenatorias de [Nombre01 068] y [Nombre01 105] han sido dictadas en el marco de un procedimiento abreviado, donde la aceptación de cargos tiene un carácter formal, la posibilidad de establecer la promesa de dádiva con certeza y, en especial, de involucrar a [Nombre01 041] con esa promesa, se desvanece. De nuevo, esta cámara no tiene duda de que [Nombre01 041] pagó a una serie de funcionarios públicos usando dos sociedades anónimas ([Nombre01 114]. y [Nombre 058].). Incluso se puede sospechar que esos pagos guardaban alguna relación con la incursión de [Nombre02 091] en el mercado de le telefonía móvil, sin embargo, no es posible asegurar que esos pagos fueron hechos para cumplir promesas de dádivas formuladas antes de la adjudicación del contrato de las 400.000 líneas, a cambio de que este fuese otorgado a [Nombre01 091] , máxime cuando es posible también considerar otras alternativas, p. ej., que fuesen retribuciones económicas dadas por actos cumplidos, sin promesa anterior (como lo había dicho [Nombre01 064]), o que fuesen los funcionarios públicos quienes demandaron el pago, como en algún momento lo indicó el mismo [Nombre02 041] (cfr. al respecto, declaración de [Nombre01 116], analizada en apartados anteriores). En ese tanto y en aplicación del principio in dubio pro reo, se anula la sentencia en cuanto condenó a [Nombre01 041] por un delito de penalidad del corruptor por corrupción agravada en su modalidad de cohecho impropio, en relación con los hechos imputados a [Nombre01 068] y en su lugar, se le absuelve de toda pena y responsabilidad por el citado delito. En razón de lo expuesto en este considerando y por resultar innecesario, se omite pronunciamiento en cuanto a los demás reclamos contenidos en los recursos formulados por los licenciados Federico Morales Herrera y Erick Ramos Fallas, Nombre02 como los planteados por el licenciado Mario Navarro Quirós, defensor particular de [Nombre02 028], con excepción del tercer motivo que denominó “Errónea e inadecuada fundamentación. Violación al debido proceso y al derecho de defensa por errónea aplicación del artículo 110 del Código Penal”, ya que este, por estar relacionado con el comiso de algunos bienes pertenecientes a personas jurídicas ligadas a [Nombre01 028], demanda un análisis más profundo. En cuanto a dicho motivo, este despacho se pronunciará más adelante.

VII.- Recurso de casación planteado por el licenciado Wilson Flores Fallas y recurso de apelación de sentencia formulado por la licenciada Nazira Merayo Arias, defensores de [Nombre 006]. En escrito visible al tomo XXXVI, de folios 17.102 a 17.149 frente, el licenciado Wilson Flores Fallas, defensor público de [Nombre01 006], interpuso recurso de casación contra de la sentencia N° 167-2011 citada atrás, mismo que fue reiterado por la licenciada Nazira Merayo Arias al formular el recurso de apelación de sentencia. De hecho, en el tomo XXXIX, a partir del folio 17.292 frente, esta profesional explicó que en razón de que el licenciado Flores Fallas se encontraba ocupando cargos en la judicatura, ella asumió la defensa del justiciable, indicándole a este último que, tras la conversión del recurso de casación en uno de apelación de sentencia, se mantendrían los motivos y fundamentos externados en el primero. Habiendo constatado que esto efectivamente fue así, pues ambos libelos presentan el mismo contenido y en razón de que el primero fue elaborado por el licenciado Flores Fallas, esta cámara se referirá únicamente a él. Contenido del recurso. En una exposición inicial, el licenciado Flores Fallas afirmó que el hecho se encuentra prescrito; que se aplicó erróneamente la ley sustantiva al describirse tres delitos independientes sin describir los elementos (objetivos y subjetivos) del tipo penal de enriquecimiento ilícito; que se lesionaron los principios de correlación entre acusación y sentencia, de in dubio pro reo y de legalidad al valorar la prueba y que se quebrantó el principio de derivación. Dada la relación existente, se resolverán de manera conjunta el reclamo que el recurrente denomina como “Único motivo de casación por el fondo” y el denominado “Tercer motivo por la forma.” Único motivo de casación por el fondo. 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. Según el defensor público, la sentencia incurre en violación al principio de correlación entre acusación y sentencia. Tras citar los artículos 363 inciso b) y 369 inciso h), ambos del Código Procesal Penal, el licenciado Wilson Flores afirma que los hechos acusados, identificados con los números 199 al 211, presentan problemas con respecto a la descripción típica del delito de enriquecimiento ilícito. En el hecho 201 de la acusación se establece: “… 201) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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”. De lo anterior se extrae que a [Nombre01 006] se le imputó un delito enriquecimiento ilícito, sin embargo, con posterioridad a ese hecho acusado no se describe a cuál hecho o a cuáles circunstancias se refiere, aspecto que resulta esencial, pues el Ministerio Público se decantó por la hipótesis de la “aceptación de dádiva presentada”, lo que significa que por la presentación de cada dádiva y la correlativa y simultánea aceptación de esta se constituye una conducta típica independiente. En el caso de una pluralidad de acciones como la que contiene la acusación, en los hechos 203, 208 y 210, se daría entonces un concurso real de delitos, por lo que para cada delito se deberían contemplar todos los presupuestos establecidos en el tipo penal. Para el defensor, conforme a los hechos 203, 208 y 210, hubo tres presentaciones de dádiva independientes, por lo que era necesario describir los elementos del tipo penal del artículo 346 inciso 3) del Código Penal en cada caso, esto para tener una acusación clara, precisa y circunstanciada. Dice el impugnante que “… No obstante, como adelanté el Ministerio Público no describe que la presentación de dádivas haya sido en consideración al oficio, por lo que la descripción de esos hechos acusados de forma independiente no describen elementos esenciales como son los elementos objetivos entre ellos la condición de funcionario público, en función del cargo, pues la dádiva por sí sola como descripción en los hechos 203, 208 y 210, es un elemento común a varios delitos como el cohecho propio, el cohecho impropio, la aceptación de dádivas por un acto cumplido, penalidad del corruptor (345 bis), enriquecimiento ilícito, siendo que la ausencia en la descripción de esos tres hechos independientes, denota la ausencia de elementos esenciales del tipo penal del 346 inciso 3…” (F. 17.104 y 17.105 frente). De seguido, agrega el licenciado Flores Fallas: “… En el hecho 203 se acusa: “Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre02 078] le presentaron al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión Nºs 22400200037170, Identificacion06 Identificacion07 y Identificacion08 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, [Nombre01 041] y [Nombre01 078] presentaron al imputado al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nombre08° Identificacion09 Identificacion10 Identificacion11 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 [Nombre01 041] y [Nombre01 078], presentaron al imputado al imputado [Nombre 006] una tercera dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nombre08° Identificacion12 Identificacion13 Identificacion14 y Identificacion15 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 [Nombre01 006] y la dispuso de la siguiente manera:..”. (La reproducción es literal, folios 17.105 y 17.106 frente). Para el defensor de [Nombre01 006], la descripción anterior no contempla los elementos del tipo objetivo y subjetivo del enriquecimiento ilícito y, en ese tanto, lo que se describen son conductas atípicas: “… Verbigracia, la ausencia del elemento subjetivo que motiva la presentación de la dádiva y que es lo que mueve al sujeto que la presenta, no está descrita, siendo un elemento esencial que tiene que ser conocido por el sujeto activo del delito, puesto que es la figura penal de enriquecimiento ilícito su tipicidad subjetiva es dolosa …”. (F. 17.106 frente). El agravio ocasionado, indica el recurrente, consiste en que se condenó por el delito de enriquecimiento ilícito a pesar de que la acusación no contempla los elementos esenciales del tipo penal. Si el Ministerio Público acusó un concurso material y describió tres dádivas, pero no describió los elementos del tipo penal del enriquecimiento ilícito, el tribunal no podía considerar el comportamiento como delictivo. Tercer motivo por la forma. Lesión al principio correlación entre acusación y sentencia. El Tribunal modifica las acciones acusadas a [Nombre01 006] en la acusación fórmula (sic) por el Ministerio Público y tiene como hechos probados acciones que no fueron acusadas, pues en las primeras no integra elemento del tipo y la nueva relación que realiza el tribunal integra los elementos del tipo ( sic, f. 17.112, tomo XXXVI). En este motivo, que se identifica como el tercero por la forma (en realidad se trata del segundo por la forma), con base en los artículos 363 inciso b) y 369 inciso h) del C.P.P., el licenciado Flores Fallas refiere que: “… Incurre la sentencia recurrida en violación el principio de correlación entre acusación y sentencia, conforme los artículos 363 inciso b y 369 inciso h, ambos del Código Procesal Penal, aspecto que se sanciona con nulidad. En los hechos descritos en la acusación que van del hecho número 199 hasta el hecho 211, presentan problemas respecto a la descripción de los tipos penales que se acusan, a saber, 3 delitos de enriquecimiento ilícito. Nombre02 en el hecho numerado como 201 de la acusación se describe: “201) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre02 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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.” … En el hecho 203 se acusa: “Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre01 078] le presentaron al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión N°s Identificacion16 Identificacion06 Identificacion07 y Identificacion08 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 ($10.00), 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, [Nombre01 041] y [Nombre01 078] presentaron al imputado al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica N° Identificacion09 Identificacion10 Identificacion11 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 [Nombre01 041] y [Nombre01 078], presentaron al imputado al imputado [Nombre01 006] una tercera dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica N° Identificacion12 Identificacion13 Identificacion14 y Identificacion15 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 [Nombre01 006] y la dispuso de la siguiente manera:” De lo anterior se obtiene que al señor [Nombre01 006] se le acusa de un delito de enriquecimiento ilícito, sin embargo, posterior a este hecho acusado donde se describe los elementos del tipo penal de enriquecimiento ilícito en relación a un delito de enriquecimiento ilícito correspondiente al hecho 201 de la acusación; no obstante, el Ministerio Público describe en los hechos 203, 208 y 210 tres presentaciones de dádiva independiente, por lo que resultaba necesario o fundamental para cumplir con los requisitos de una acusación clara, precisa y circunstanciada, describir los elementos del tipo penal de enriquecimiento ilícito del artículo 346 inciso 3 del Código Penal. No obstante, como adelantÉ el Ministerio Público al NO describir que las presentación de dádivas haya sido en consideración al oficio, por lo que la descripción de esos hechos acusados de forma independiente no describen elementos esenciales como son los elementos objetivos entre ellos la condición funcionario público, en función del cargo; pues la dádiva por si sola como descripción en los hechos 203, 208 y 210, es un elemento común a varios delitos como el cohecho propio, el cohecho impropio, la aceptación de dádivas por un acto cumplido, penalidad de corruptor (345 bis), enriquecimiento ilícito; siendo que la ausencia en la descripción de elementos esenciales del tipo penal del 346 inciso 3, tratándose de tres hechos independientes, nos lleva a señalar que estamos en presencia de tres comportamiento acusados que resultan atípicos. Resulta fundamental, considerar como un aspecto esencial, que el Ministerio Público se decanta por la hipótesis de la “aceptación de dádiva presentada”, lo que significa que por la presentación de cada dádiva y la correlativa y simultánea aceptación de la misma, constituye una conducta típica independiente, cada vez que se dé, y en caso de pluralidad como se describe en la acusación, hechos 203, 208 y 210 necesariamente genera un concurso real de delitos, y por lo tanto, en cada caso se deben cumplir todos los presupuestos establecidos en el tipo penal. Por lo anterior, al haber optado la acusación por la fórmula la “aceptación de dádiva presentada”, no sólo constituye un hecho independiente del anterior, sino que además exige los requisitos de tipicidad. Sin embargo, el Tribunal tiene como hechos probados: “190) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] mientras permanecía en el ejercicio de su cargo de funcionario público, propiamente de Subjefe de la Dirección del Departamento de Conmutación del I.Nombre72., situación que le generó un enriquecimiento ilícito. Dicha dádiva fue pagada en tres tractos… 191) Fue Nombre02 como el encartado [Nombre01 041] y el indiciado [Nombre01 078] y siguiendo la dinámica de distribución del dinero depositado en la cuenta corriente de [Nombre02 058]. Nombre68° [Valor 012] en el Cuscatlán International Bank proveniente de [Nombre02 060], ordenaron a [Nombre02 028] la compra de diversos certificados para la entrega de las siguientes dádivas: 192) Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre02 078] le presentaron al imputado [Nombre01 006] una primera entrega de la dádiva consistente en los certificados de inversión Nombre68°s Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 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 voto de minoría, que destaca esta situación denunciada en las conclusiones por esta representación, al señalar: “En el caso de [Nombre01 006] , como ya se indicara, la Acusación parte de la hipótesis de que se realizaron tres presentaciones de dádiva y tres correlativas aceptaciones o recepciones de la dádiva presentada, sin embargo, al partirse del supuesto de que se trata de delitos independientes, debió el Ministerio Público, en cada caso, realizar una descripción de la totalidad de las circunstancias fácticas que llenan el tipo penal de enriquecimiento ilícito. En otras palabras cada vez que se hace referencia a una presentación de dádiva y la aceptación de la misma por [Nombre01 006], debió, como mínimo, señalarse que la presentación de la dádiva se hacía en consideración al oficio de [Nombre01 006] como funcionario del Instituto Costarricense de Electricidad, y que, [Nombre01 006], sabedor de la circunstancia que motivaba la presentación de la dádiva, la aceptó mientras se encontraba en el ejercicio de cargo. Lo anterior no se hizo, tal y como se puede colegir de la redacción de los hechos de la acusación números 203, 204, 208, 209 y 210. En el hecho 203 se dice que después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre01 078] le presentaron al imputado [Nombre01 006] una dádiva, consistente en cinco certificados de $10.000 dólares cada uno, dádiva que fue aceptada por el citado coimputado (hecho 204). En el hecho 208 con igual redacción, se describe la presentación de tres certificados a [Nombre01 006] por un total de $20.000,00, entre el 2 de julio de 2002 y el 5 de agosto de 2002, dádiva que fue aceptada por dicho imputado. El hecho 210 con igual descripción se refiere a la tercera dádiva presentada entre el 17 de diciembre de 2002 y el 21 de enero de 2003, igualmente aceptada por [Nombre02 006]. La descripción de hechos contenidos en la acusación, en la forma referida en el párrafo anterior, contienen conductas atípicas, porque no señalan elementos esenciales para serlo, en relación con el tipo penal de enriquecimiento ilícito, como el elemento subjetivo que motiva la presentación de la dádiva y que es lo que mueve al sujeto que la presenta, a hacerlo, elemento que además tienen que ser conocidos por el sujeto activo del delito, puesto que es una figura penal cuya tipicidad subjetiva es dolosa. Lo anterior pudo subsanarse con un hecho general en donde se dijera que los elementos típicos que se echan de menos estuvieron presentes en todas las ocasiones que se presentaron dádivas a [Nombre01 006] y que éste las aceptó, sin embargo, ello tampoco se hizo, porque el único hecho que hace referencia al elemento subjetivo es el número 201. Ahí se puede leer lo siguiente: “201) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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.” (Ver voto salvado de cojuez Camacho Morales). Nótese, como el Tribunal introduce en el considerando “III” hechos probados número 190, que la dádiva se realizó en tres pagos, al indicar: “190) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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… Siendo que con dicha redacción por parte del Tribunal de Juicio pasamos de tres acciones independientes, que no describen un comportamiento ajustado aún tipo penal, a una acción que si describe los elementos del tipo penal de enriquecimiento ilícito del artículo 346 inciso 3 del Código Penal. El mismo tribunal de juicio destaca cuando explica en distintos considerandos cada dádiva por separado, que en realidad no estiman que se trate de una dádiva sino de tres dádivas… De esta forma el Tribunal de Juicio enmienda la plana del Ministerio Público, sin que el órgano acusador se lo pida, y brindando una ventaja indebida el tribunal sentenciador comprometiendo el principio constitucional de imparcialidad. Pese a que la acusación presentada por el Ministerio Público constituye el límite fáctico al que puede referirse la sentencia, el Tribunal de Juicio tiene por demostrado un hecho diferente al descrito en la acusación, siendo que dicha modificación afecta el derecho de defensa, pues de que sirven las conclusiones brindadas en el debate, si el Tribunal redacta un hecho típico distinto a los tres hechos acusados de forma independiente. De la lectura de la acusación nunca se dice que Dicha dádiva fue pagada en tres tractos, entonces como puede el Tribunal acomodar las cosas en perjuicio de los intereses del imputado, y de esta forma desconocer la jurisprudencia constitucional que ha señalado reiteradamente que la modificación de los hechos acusados por parte del Tribunal al momento de sentenciar, afecta sustancialmente el contenido del principio del debido proceso. Además, se ha indicado de forma reiterada que no puede variarse el cuadro fáctico acusado sobre el que versa el juicio, pues debe existir correlación entre acusación y sentencia, dado que tales cuestiones forman parte del derecho de defensa pues sólo conociendo los hechos atribuidos se puede formular una defensa y si ellos se alteran se imposibilita ejercer efectivamente ese derecho. Con base al principio de correlación entre acusación y sentencia se pretende que en sentencia no se produzcan variaciones al marco fáctico que se imputó que afecten o impidan el ejercicio de una adecuada defensa, que como en el caso concreto implica una modificación esencial en aspectos penalmente relevantes de la conducta sometida al juicio, donde de tres hechos independientes acusados donde se encuentran ausentes la descripción de los elementos típicos del delito de enriquecimiento ilícito, el Tribunal realiza una variación que incide en el núcleo esencial de la acusación al agregar Dicha dádiva fue pagada en tres tractos. De ahí, que la comparación en la sentencia entre los hechos acusados y los hechos demostrados, permite derivar que el Tribunal incurrió en el vicio que se apunta, pues el hecho probado es diferente en lo esencial al hecho acusado, al integrar el Tribunal que Dicha dádiva fue pagada en tres tractos. De lo anterior, se obtiene que la sentencia rompió la unidad lógica del proceso al hacerse en ella una descripción distinta a la acusada, que difiere de la que originalmente se acusó por parte del Ministerio Público al no describir en ninguno de los tres hechos independientes de enriquecimiento ilícito los elementos el tipo tanto los elementos objetivos, como los subjetivos; de ahí, que se trata, a mi juicio, de una infracción a una de las reglas básicas sobre los cuales se cimienta nuestro derecho procesal penal, como lo ha expresado claramente la Sala Constitucional, especialmente en la sentencia número 1739-92. Asimismo, la doctrina también concuerda con la necesidad de que los hechos acusados sean la única base para determinar la condenatoria o absolutoria del imputado…” (F. 17.112 a 17.119 frente, tomo XXXVI. La transcripción es literal). Tras citar la resolución Nº 00481-95, de la Sala Constitucional, que trata el tema de la correlación entre acusación y sentencia, considera el recurrente que en el caso de su patrocinado, el tribunal ha variado el cuadro fáctico acusado. En este se contemplaban tres hechos independientes de enriquecimiento ilícito, sin describir los elementos esenciales del tipo penal. Nombre02 las cosas, sin la variación, el a quo hubiese concluido que el delito de enriquecimiento del artículo 346 inciso 3) del Código Penal no se configuró en este asunto.

VIII.- Los alegatos no pueden prosperar. Como ya se explicó en los primeros considerandos de esta resolución, la Sala Tercera resolvió estos reclamos en casación, concluyendo que no se había quebrantado el principio de correlación entre acusación y sentencia; que no se había aplicado erróneamente el antiguo art. 346 inciso 3) del Código Penal al caso particular; y que en la acusación formulada por el órgano requirente se contemplaban todos los elementos del tipo penal del enriquecimiento ilícito. Al respecto, se indicó: “XVI.Sección VII de la impugnación planteada por el Ministerio Público. Motivos de Casación relacionados con la errónea aplicación de normas sustantivas por parte del Tribunal de Apelaciones. XVII. Al tenor de los artículos 33 y 41 Constitucionales; 365 y 468 inciso b) del Código Procesal Penal, en el segundo motivo de la sección sétima del Recurso de Casación del Ministerio Público, se alega errónea aplicación del precepto procesal 365 del Código de rito, con respecto a la “configuración de una falta de correlación entre acusación y sentencia condenatoria dictada por el Tribunal de Juicio al condenar al imputado [Nombre 006] por el delito de Enriquecimiento Ilícito” (Cf.f.175347 del tomo XLII del expediente). Para el ente acusador, el fallo del Tribunal de Apelación incurre en una clara violación al artículo 365 supra citado, cuando dictó en alzada, la absolutoria de [Nombre01 006] por el delito de Enriquecimiento Ilícito y consideró que la pieza acusatoria describió una acción inconclusa que tuvo que ser complementada por el Tribunal Penal de Hacienda y de la Función Pública, ya que tanto los hechos acusados como los acreditados en la sentencia 167-2011 son similares, al atribuir las mismas acciones delictivas concretas al justiciable [Nombre01 006], excepto porque los hechos probados introducen la frase aclaratoria “dicha dádiva fue pagada en tres tractos” (Cf.f.175347 a 175352 del tomo XLII del expediente). Sobre el tema, los impugnantes citan en lo conducente, los votos de la Sala Tercera números 2006-0503, de las nueve horas, del dos de junio de dos mil seis; 2007-0382, de las nueve horas con cuarenta minutos, del veinticinco de julio de dos mil siete y 2009-1667, de las dieciséis horas quince minutos, del veintiséis de noviembre de dos mil nueve, de los que extraen que las modificaciones para la constitución del vicio de falta de correlación entre acusación y sentencia no pueden estar referidas a aspectos formales sino a variaciones sustanciales que afecten, significativamente, el ejercicio de la defensa por constituirse en sorpresivas, lo que implica que para el particular, la frase introducida por el Tribunal de Juicio a los hechos acreditados, de ninguna forma resulta inesperada para el imputado o su defensa técnica, pues además que se aprecia una identidad entre la relación de hechos acusados y los probados, se repara que [Nombre01 006] fue intimado por esas acciones, desde las primeras etapas del proceso y que la acusación describe la admisión de una dádiva consistente en dinero, la que fue presentada por los coimputados [Nombre01 041] y [Nombre01 078] en consideración con su cargo como funcionario público, siendo que no aprecia el ente fiscal de dónde deriva el Ad quem que la frase introducida “sorprende a la defensa, en el sentido de que se condena por una dádiva en tractos (folio 174495 vuelto del expediente principal)…”(Cf.f.175354 del tomo XLII del expediente), ya que más bien, el sindicado [Nombre01 006] fue acusado por el Ministerio Público por tres hechos que describían tres dádivas que constituían, al mismo tiempo, tres delitos de Enriquecimiento Ilícito, mientras que los hechos probados, con la introducción de la mencionada frase, describen la comisión de un único delito pagado en tres tractos, lo que en vigilancia al “principio de favorabilidad”(Cf.f.175355 del tomo XLII del expediente), dispuesto en el artículo 365 del Código Procesal Penal, resulta más beneficioso para el encartado y su defensa. Como agravio, se expone un incorrecto dictado de la absolutoria de [Nombre01 006], ya que el Tribunal de Juicio lejos de perjudicar al justiciable, introdujo una circunstancia favorable por medio de la cual se recalificaron los hechos acreditados a un único delito de Enriquecimiento Ilícito y no de tres como lo procuraba el Ministerio Público, gestionando como petitoria, la anulación del fallo y la correcta interpretación conforme a derecho corresponda, manteniendo la sentencia condenatoria ordenada por el A quo contra [Nombre01 006] . En el tercer motivo de la sección sétima del recurso, también se reclaman inobservados los artículos 33 y 41 de la Constitución Política Nombre02 como el numeral 468 inciso b) del Código Procesal Penal y erróneamente aplicado el antiguo artículo 346 inciso 3) del Código Penal, en cuanto a la configuración del delito de Enriquecimiento Ilícito acusado a [Nombre01 006] . Desde el planteamiento fiscal, el hecho 201 de la pieza acusatoria atribuyó a [Nombre02 006] , un cuadro fáctico que comprendía los elementos objetivos y subjetivos del tipo penal de Enriquecimiento Ilícito, cuando en lo que interesa le imputó que: “[…] Nombre73 encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] mientras permanecía en el ejercicio de su cargo como funcionario público, propiamente de Subjefe de la Dirección del Departamento de Conmutación del I.C.E. situación que generó un enriquecimiento ilícito…”(Cf.f.175357 del tomo XLII del expediente. El suplido pertenece al original), siendo que desde los hechos 202 al 211, también fueron descritos los actos sobre los cuales fueron presentadas esas dádivas, a saber: “a) Varios certificados de inversión al portador en fechas comprendidas entre el 10 de diciembre de 2001 y el 10 de enero de 2002; b) otra serie de certificados de inversión al portador en fechas comprendidas entre el 2 de julio de 2002 y el 5 de agosto de 2002; c) una última serie de certificados de inversión al portador en fechas comprendidas entre el 17 de diciembre de 2002 y el 21 de enero de 2003…”(Cf.f.175357 del tomo XLII del expediente), mientras que esa misma relación de hechos, fue tenida por probada desde el hecho 190 de la sentencia 167-2011, excepto porque le incluye la frase: “Dicha dádiva fue pagada en tres tractos” (Cf.f.175358 del tomo XLII del expediente). Empero, a pesar de la identidad de ambos hechos y que es el mismo Tribunal de Apelación, el que admite que el delito de Enriquecimiento Ilícito, puede configurarse desde las conductas alternativas de: “…i) la aceptación de la dádiva ofrecida y ii) la aceptación de la dádiva presentada (folios 174493 del tomo XLI del expediente frente y vuelto…” (Cf.f.175358 del tomo XLII del expediente), de forma contradictoria dicta la absolutoria del citado justiciable, al determinar que: “…En el caso de los hechos atribuidos a [Nombre01 006] estaríamos, entonces, en presencia de una acusación por un hecho incompleto, que no satisface todos los elementos del tipo objetivo y deja sin substancia (sic) 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 [Nombre01 006], 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…” (Cf. folios 174494 frente y vuelto)…”(Cf.f.175359 del tomo XLII del expediente). A partir de la cita transanterior, sostienen los fiscales impugnantes, que el Tribunal de alzada yerra cuando asegura que la acusación presenta defectos formales que le atribuyen a [Nombre01 006] un “mero ofrecimiento de la dádiva” (Cf.f.175359 del tomo XLII del expediente), porque olvida que líneas atrás, ese mismo fallo en la transcripción de los hechos acusados le imputó al justiciable la “presentación de tres dádivas ” (Cf.f.175359 del tomo XLII del expediente. El suplido es del original), que fueron aceptadas por él, de forma que, nunca fue utilizado el verbo “ofrecer” en la redacción de los hechos enumerados del 199 a 211 (Cf.f.175359 del tomo XLI del expediente). Demandan, que el Ad quem edifica un “falso problema” para absolver al justiciable [Nombre01 006], porque asume que la acusación imputó “ dádivas ofrecidas” (Cf.f.175360 del tomo XLI del expediente. El suplido pertenece al original), cuando lo cierto es que el delito de enriquecimiento ilícito acreditado fue por “ la presentación de tres dádivas que fueron aceptadas por el imputado [Nombre01 006]” (Cf.f.175359 del tomo XLII del expediente, la negrilla es del original). Repiten que los Juzgadores de alzada, a partir del folio 174495 fte y vto, confunden en los hechos acreditados, los requisitos típicos del delito de enriquecimiento ilícito por dádivas ofrecidas, puesto que introducen circunstancias relacionadas con otros tipos penales funcionales no acusados a [Nombre01 006], lo que socava el análisis de culpabilidad realizado en el fallo de primera instancia. En síntesis, sostienen que el Ad quem, a pesar de haber acreditado la recepción de dineros presentados a [Nombre01 006] , lo absuelve de toda pena y responsabilidad, lo que lesiona gravemente la pretensión punitiva del ente acusador, peticionando se ordene la anulación del fallo, una correcta interpretación del derecho y que se mantenga la sentencia condenatoria 167-2011 dictada al justiciable. Dada la relación existente entre los motivos segundo y tercero de la sección sétima del recurso fiscal, ambos reclamos se conocen de manera conjunta y se declaran con lugar. Esta Sala estima que no existen los vicios de falta de correlación entre acusación y sentencia y errónea aplicación del antiguo artículo 346 inciso 3) del Código Penal, dictado por el Tribunal de Alzada, con respecto al delito de Enriquecimiento Ilícito atribuido al justiciable [Nombre01 006] . Justamente, de la fundamentación intelectiva que contiene el fallo cuestionado, es claro que el Tribunal de Apelación para determinar los supuestos vicios supra citados, estableció en lo que interesa que: “…Esta Cámara ha leído con atención los hechos que se atribuyen al justiciable [Nombre01 006], 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 (…) 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 (…). 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 [Nombre 006] ”, se señaló: /“190) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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 [Nombre01 006] por la realización de actividades u omisiones que no se clarifican, Nombre02 como las condiciones dentro de las cuáles se explicaría el pago en tractos. Esto 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 [Nombre01 006] , 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…” (Cf.f.174495 vto del tomo XLI del expediente). A partir del anterior razonamiento, esgrimido por el Tribunal de Alzada, se puede colegir que las infracciones argüidas por el Ministerio Público se presentan en dos vertientes, sobre las que el ente fiscal lleva plena razón. En primer lugar, el hecho 190 del que el Tribunal de segunda instancia deriva una imputación inconclusa del delito de enriquecimiento ilícito, no presenta tal característica, puesto que ese apartado en concreto, describe de manera expresa, los elementos subjetivos y objetivos del delito de Enriquecimiento Ilícito contemplados en el antiguo artículo 346 del Código Penal, cuando refiere que [Nombre01 041] y [Nombre01 078], como representantes de la empresa [Nombre 091], “le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] mientras permanecía en el ejercicio de su cargo…”(Cf.f.00015473 del tomo XXXII del expediente, Hecho 190, el suplido es nuestro), como funcionario público y Subjefe de la Dirección del Departamento de Conmutación del Instituto Costarricense de Electricidad, es decir, se alude a dádivas que fueron presentadas a [Nombre01 006] , cuando ocupaba un cargo de funcionario público y a su admisión por parte del sindicado. Al respecto, nótese, que el antiguo artículo 346 del Código Penal, estipulaba: “…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 fueron presentadas u ofrecidas en consideración a su oficio, mientras permanezca en el ejercicio del cargo…” (El suplido es nuestro). De modo, que, al contener dicho artículo la conjunción disyuntiva “u” cambiada por “o” por continuar en la estructura del tipo penal, el verbo “ofrecer” que presenta el sonido vocálico /o/, nos encontramos ante un vocablo que “denota diferencia, separación o alternativa entre dos o más personas, cosas o ideas” (http://lema.rae.es/drae/?val=0). Sobre el tema, al contener el mencionado artículo una conjunción que muestra alternatividad entre dos acciones claramente diferenciadas, es patente que, para la acreditación del tipo penal de enriquecimiento ilícito, contenido en el antiguo artículo 346 del Código Penal, basta con la demostración de la admisión de la dádiva por parte del funcionario público, no siendo indispensable la demostración en la descripción de los hechos, de las acciones “presentadas” u “ofrecidas” al mismo tiempo, sino la acreditación de una sola de esas conductas, sea, recibir o aceptar las dádivas que se le presentan en razón de su cargo. De igual manera, se hace innecesaria en la acreditación de ese ilícito penal, la descripción en cada uno de los acápites de ese marco fáctico, de la característica de funcionario público y la aceptación de la dádiva en consideración a ese cargo, puesto que en el primer hecho de la acusación referente a [Nombre01 006], ya se habían descrito ambas condiciones. El segundo elemento a considerar y que se desprende de la cita de la sentencia 2012-2005 supra aludida, radica en que la diferencia admitida por ese ente jurisdiccional entre los hechos acusados y los probados, desde el criterio de esta Cámara de Casación, no presenta el carácter de esencial, ni habría producido vicio alguno al derecho de defensa técnica y material del encartado [Nombre01 006], pues los aparentes hechos constitutivos del único delito de Enriquecimiento Ilícito acreditado, están detallados, de manera diáfana, en la relación fáctica descrita por el requerimiento fiscal, cuando estableció: “…199) El imputado [Nombre01 006], ostentó el cargo de Ingeniero Eléctrico del I.C.E. desde el 01 de diciembre de 1998 y hasta el 30 de junio de 2001, momento a partir del cual pasó a ocupar el puesto de subjefe de la dirección del Departamento de Conmutación de dicha institución. Tales cargos lo acreditan como funcionario público. La actividad laboral implicaba también mantener una comunicación constante con los proveedores en materia de telecomunicaciones, entre ellos la empresa [Nombre 091]. 200) Entre el encartado [Nombre01 006] y la empresa [Nombre 091] no existió ningún tipo de relación comercial de índole privada, sino que el contacto entre ambas partes derivó en todo momento de la condición de funcionario del I.C.E., que como se dijo ostentaba [Nombre01 006]. 201) El encartado [Nombre02 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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. 202) Fue Nombre02 como el encartado [Nombre01 041] y el indiciado [Nombre01 078] y siguiendo la dinámica de distribución del dinero depositado en la cuenta corriente de [Nombre 058]. Nº [Valor 012] en el Cuscatlán International Bank proveniente de [Nombre 060], ordenaron a [Nombre02 028] la compra de diversos certificados para la entrega de las siguientes dádivas: 203) Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre02 078] le presentaron al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión Nºs Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 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). 204) Dicha dádiva fue aceptada por el imputado [Nombre01 006] quien procedió a endosar los certificados Nºs Identificacion16 Identificacion06 Identificacion17 y los entregó en la agencia Nombre74 con el propósito de adquirir a Nombre01 suyo el vehículo marca Suzuki, Grand Vitara XL, serie , chasis , motor H27A105387, modelo 2002. 205) El 10 de enero de 2002 se emitió por parte de Nombre74 el reporte de venta N° 99-12-54 por el cual se vendió al imputado [Nombre01 006] el vehículo Grand Vitara XL, de calidades indicadas. De esta forma el 15 de enero de 2002, se emitió el recibo de dinero Nº 38999 por la agencia Nombre74 Vehículos Suzuki, a Nombre01 de [Nombre01 006] por la suma de treinta y un mil ciento nueve dólares con setenta y siete centavos ($31.109.77), por concepto de pago del vehículo de referencia. 206) Respecto de los certificados de inversión Nº Identificacion07 y Nº Identificacion08 dicha parte de la dádiva fue admitida por el imputado [Nombre 006], quien la invirtió en el puesto de bolsa del BCT Valores el 14 de enero de 2002 junto con sus intereses por un total $39.65 -agregando de su propio peculio una suma de efectivo por ocho mil cien dólares ($8.100)- en un fondo empresarial en dólares administrado por esa entidad financiera. 207) Esta inversión fue liquidada el 19 de agosto de 2002 con el cheque Nº 3505-6 por veintinueve mil noventa y nueve dólares con seis centavos ($29.099.06) girado a favor de [Nombre01 197], cónyuge del imputado [Nombre01 006]. 208) Sin precisarse fecha, pero entre el 2 de julio de 2002 y el 5 de agosto de ese mismo año, [Nombre01 041] y [Nombre 078] presentaron al imputado [Nombre01 006] una segunda dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion09 Nº Identificacion10 y Nº Identificacion11 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. 209) Dicha dádiva fue aceptada por el imputado [Nombre01 006] , quien la entregó a su esposa [Nombre01 197], ella procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98) emitido el 30 de setiembre de 2002 a su Nombre01 y con un plazo de tres meses y siete días. 210) Sin precisarse fecha, pero entre el 17 de diciembre de 2002 y el 21 de enero de 2003, los corruptores [Nombre01 041] y [Nombre01 078] , presentaron al imputado [Nombre01 006] una tercera dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion12 Nº Identificacion13 Nº Identificacion14 y Nº Identificacion15 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 $100.08., que fue aceptada por el imputado [Nombre01 006] y la dispuso de la siguiente manera: a) Con relación al certificado Identificacion12 lo entregó junto con el cupón de intereses -agregando efectivo de su peculio por un total de mil doscientos dólares ($1.200)- al BCT Valores, con el objetivo de realizar una inversión en el fondo de liquidez en dólares, administrado por el BCT Sociedad Fondos de Inversión S.A. Esta inversión fue finalmente liquidada el 29 de mayo de 2003, con el cheque Nº 371-9 por once mil trescientos cincuenta y tres dólares con ochenta y seis centavos ($11.353.86) que fue girado a favor de la esposa del imputado [Nombre01 006]. El cheque fue depositado en la cuenta Nº [Valor 057] de la beneficiaria [Nombre01 197] en el Banco Popular y de Desarrollo Comunal. b) Con relación al certificado Nº Identificacion14 lo entregó junto con el cupón de interés por $25.02, a su esposa [Nombre01 197] , procediendo esta última a endosarlo y depositarlo a la cuenta corriente [Valor 035] en el Banco Popular y de Desarrollo Comunal. c) Con relación a los certificados Nº Identificacion13 y Nº2240020056299, también los entregó -junto con los respectivos cupones de intereses- a su esposa, quien entregó los certificados a la señora [Nombre01 199] con el objetivo de cancelar la decoración de su casa de habitación, y los cupones los depositó en la cuenta a su Nombre01 del Banco Popular y de Desarrollo Comunal. 211) En total el imputado [Nombre02 006] se enriqueció ilícitamente mediante la recepción de las dádivas recibidas de los imputados [Nombre01 041], [Nombre01 028] y [Nombre01 078], por la suma de ciento diez mil trescientos treinta y seis dólares con veinte centavos ($110.336.20) …” (Cf.f.14490-14492 del tomo XXX del expediente). A la anterior descripción de hechos, debe unírsele la fundamentación fáctica contenida en el voto de mayoría de la sentencia 167-2011, para descartar el vicio de correlación entre acusación y sentencia impugnado, pues el acápite “Descripción de la conducta del imputado [Nombre 006] (Considerando Nº XII)” , que contiene los hechos demostrados dispuso: “…188) El imputado [Nombre01 006] , ostentó el cargo de Ingeniero Eléctrico del I.C.E. desde el 01 de diciembre de 1998 y hasta el 30 de junio de 2001, momento a partir del cual pasó a ocupar el puesto de subjefe de la dirección del Departamento de Conmutación de dicha institución. Tales cargos lo acreditan como funcionario público. La actividad laboral implicaba también mantener una comunicación constante con los proveedores en materia de telecomunicaciones, entre ellos la empresa [Nombre 091]. / 189) Entre el encartado [Nombre01 006] y la empresa [Nombre 091] no existió ningún tipo de relación comercial de índole privada, sino que el contacto entre ambas partes derivó en todo momento de la condición de funcionario del I.Nombre72., que como se dijo ostentaba [Nombre01 006]/190) El encartado [Nombre01 041] y el indiciado [Nombre02 078], como representantes de la empresa [Nombre01 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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./191) Fue Nombre02 como el encartado [Nombre01 041] y el indiciado [Nombre01 078] y siguiendo la dinámica de distribución del dinero depositado en la cuenta corriente de [Nombre01 058]. Nº [Valor 012] en el Cuscatlán International Bank proveniente de [Nombre02 060], ordenaron a [Nombre02 028] la compra de diversos certificados para la entrega de las siguientes dádivas:/192)Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre02 078] le presentaron al imputado [Nombre01 006] una primera entrega de la dádiva consistente en los certificados de inversión Nºs Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 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)./ 193) Dicha dádiva fue aceptada por el imputado [Nombre01 006] quien entregó los certificados Nºs Identificacion16 Identificacion06 Identificacion17 a la agencia Nombre74 con el propósito de adquirir a Nombre01 suyo el vehículo marca Suzuki, Grand Vitara XL, serie JS3TX92V024103244, chasis , motor H27A105387, modelo 2002. / 194) El 10 de enero de 2002 se emitió por parte de Nombre74 el reporte de venta N° 99-12-54 por el cual se vendió al imputado [Nombre01 006] el vehículo Grand Vitara XL, de calidades indicadas. De esta forma el 15 de enero de 2002, se emitió el recibo de dinero Nº 38999 por la agencia Nombre74 Vehículos Suzuki, a Nombre01 de [Nombre01 006] por la suma de treinta y un mil ciento nueve dólares con setenta y siete centavos ($31.109.77), por concepto de pago del vehículo de referencia./195) Respecto de los certificados de inversión Nº Identificacion07 y Nº Identificacion08 dicha parte de la dádiva fue admitida por el imputado [Nombre01 006] , quien la invirtió en el puesto de bolsa del BCT Valores el 14 de enero de 2002 junto con sus intereses por un total $39.65 -agregando de su propio peculio una suma de efectivo por ocho mil cien dólares ($8.100)- en un fondo empresarial en dólares administrado por esa entidad financiera./196) Esta inversión fue liquidada el 19 de agosto de 2002 con el cheque Nº 3505-6 por veintinueve mil noventa y nueve dólares con seis centavos ($29.099.06) girado a favor de [Nombre01 197], cónyuge del imputado [Nombre02 006]. /197) Sin precisarse fecha, pero entre el 2 de julio de 2002 y el 5 de agosto de ese mismo año, [Nombre01 041] y [Nombre 078] presentaron al imputado [Nombre01 006] un segundo pago de la dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion09 Nº Identificacion10 y Nº Identificacion11 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./198) Dicha dádiva fue aceptada por el imputado [Nombre02 006] , quien la entregó a su esposa [Nombre02 197], ella procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98) emitido el 30 de setiembre de 2002 a su Nombre01 y con un plazo de tres meses y siete días./ 199) Sin precisarse fecha, pero entre el 17 de diciembre de 2002 y el 21 de enero de 2003, los corruptores [Nombre01 041] y [Nombre01 078], presentaron al imputado [Nombre01 006] el tercer pago de la dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion12 Nº Identificacion13 Nº Identificacion14 y Nº Identificacion15 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 $100.08., que fue aceptada por el imputado [Nombre01 006] y la dispuso de la siguiente manera:/ a) Con relación al certificado Identificacion12 lo entregó junto con el cupón de intereses -agregando efectivo de su peculio por un total de mil doscientos dólares ($1.200)- al BCT Valores, con el objetivo de realizar una inversión en el fondo de liquidez en dólares, administrado por el BCT Sociedad Fondos de Inversión S.A. Esta inversión fue finalmente liquidada el 29 de mayo de 2003, con el cheque Nº 371-9 por once mil trescientos cincuenta y tres dólares con ochenta y seis centavos ($11.353.86) que fue girado a favor de la esposa del imputado [Nombre01 006]. El cheque fue depositado en la cuenta Nº [Valor 057] de la beneficiaria [Nombre02 197] con el Banco Popular y de Desarrollo Comunal. b) Con relación al certificado Nº Identificacion14 lo entregó junto con el cupón de interés por $25.02, a su esposa [Nombre01 197], procediendo esta última a endosarlo y depositarlo a la cuenta corriente [Valor 035] en el Banco Popular y de Desarrollo Comunal. c) Con relación a los certificados Nº Identificacion13 y Nº2240020056299, también los entregó -junto con los respectivos cupones de intereses- a su esposa, quien entregó los certificados a la señora [Nombre02 199] con el objetivo de cancelar la decoración de su casa de habitación, y los cupones los depositó en la cuenta a su Nombre01 del Banco Popular y de Desarrollo Comunal. 200) En total el imputado [Nombre01 006] se enriqueció ilícitamente mediante la recepción de las dádivas recibidas de los imputados [Nombre01 041] , [Nombre01 028] y [Nombre01 078], por la suma de ciento diez mil trescientos treinta y seis dólares con veinte centavos ($110.336.20)…” (Cf.f.00015473-00015476 del tomo XXXII), siendo que, una vez cotejados el marco acusado a [Nombre01 006] versus la fundamentación fáctica de la sentencia, -al margen de su veracidad o no que debe ser valorada por el Tribunal de Apelación respectivo-, no se aprecia alguna diferencia esencial, que haya impedido el ejercicio pleno del derecho de defensa, tanto técnica como material, del justiciable [Nombre 006] , según se denota del siguiente cuadro comparativo:

Hechos acusados por el órgano fiscal, en referencia al sindicado [Nombre 006] Hechos probados contenidos en la sentencia 167-2011, en referencia al sindicado [Nombre01 006] 199) El imputado [Nombre01 006], ostentó el cargo de Ingeniero Eléctrico del I.C.E. desde el 01 de diciembre de 1998 y hasta el 30 de junio de 2001, momento a partir del cual pasó a ocupar el puesto de subjefe de la dirección del Departamento de Conmutación de dicha institución. Tales cargos lo acreditan como funcionario público. La actividad laboral implicaba también mantener una comunicación constante con los proveedores en materia de telecomunicaciones, entre ellos la empresa [Nombre 091].

188) El imputado [Nombre01 006], ostentó el cargo de Ingeniero Eléctrico del I.C.E. desde el 01 de diciembre de 1998 y hasta el 30 de junio de 2001, momento a partir del cual pasó a ocupar el puesto de subjefe de la dirección del Departamento de Conmutación de dicha institución. Tales cargos lo acreditan como funcionario público. La actividad laboral implicaba también mantener una comunicación constante con los proveedores en materia de telecomunicaciones, entre ellos la empresa [Nombre 091].

200) Entre el encartado [Nombre01 006] y la empresa [Nombre 091] no existió ningún tipo de relación comercial de índole privada, sino que el contacto entre ambas partes derivó en todo momento de la condición de funcionario del I.Nombre72., que como se dijo ostentaba [Nombre01 006].

189) Entre el encartado [Nombre01 006] y la empresa [Nombre 091] no existió ningún tipo de relación comercial de índole privada, sino que el contacto entre ambas partes derivó en todo momento de la condición de funcionario del I.C.E., que como se dijo ostentaba [Nombre01 006].

201) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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.

190) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre01 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre01 006] 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.

202) Fue Nombre02 como el encartado [Nombre01 041] y el indiciado [Nombre01 078] y siguiendo la dinámica de distribución del dinero depositado en la cuenta corriente de [Nombre01 058]. Nº [Valor 012] en el Cuscatlán International Bank proveniente de [Nombre02 060], ordenaron a [Nombre01 028] la compra de diversos certificados para la entrega de las siguientes dádivas:

191) Fue Nombre02 como el encartado [Nombre01 041] y el indiciado [Nombre01 078] y siguiendo la dinámica de distribución del dinero depositado en la cuenta corriente de [Nombre01 058]. Nº [Valor 012] en el Cuscatlán International Bank proveniente de [Nombre02 060], ordenaron a [Nombre01 028] la compra de diversos certificados para la entrega de las siguientes dádivas:

203) Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre01 041] y [Nombre01 078] le presentaron al imputado [Nombre01 006] una dádiva consistente en los certificados de inversión Nºs Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 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).

192) Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre02 041] y [Nombre02 078] le presentaron al imputado [Nombre02 006] una primera entrega de la dádiva consistente en los certificados de inversión Nºs Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 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) 204) Dicha dádiva fue aceptada por el imputado [Nombre01 006] quien procedió a endosar los certificados Nºs Identificacion16 Identificacion06 Identificacion17 y los entregó en la agencia Nombre74 con el propósito de adquirir a Nombre01 suyo el vehículo marca Nombre18, Grand Vitara XL, serie JS3TX92V024103244, chasis , motor H27A105387, modelo 2002.

193) Dicha dádiva fue aceptada por el imputado [Nombre01 006] quien entregó los certificados Nºs Identificacion16 Identificacion06 Identificacion17 a la agencia Nombre74 con el propósito de adquirir a Nombre01 suyo el vehículo marca Nombre04, Grand Vitara XL, serie JS3TX92V024103244, chasis JS3tx92v024103244, motor H27A105387, modelo 2002.

205) El 10 de enero de 2002 se emitió por parte de Nombre74 el reporte de venta N° 99-12-54 por el cual se vendió al imputado [Nombre01 006] el vehículo Grand Vitara XL, de calidades indicadas. De esta forma el 15 de enero de 2002, se emitió el recibo de dinero Nº 38999 por la agencia Nombre74 Vehículos Suzuki, a Nombre01 de [Nombre01 006] por la suma de treinta y un mil ciento nueve dólares con setenta y siete centavos ($31.109.77), por concepto de pago del vehículo de referencia.

194) El 10 de enero de 2002 se emitió por parte de Nombre74 el reporte de venta N° 99-12-54 por el cual se vendió al imputado [Nombre01 006] el vehículo Grand Vitara XL, de calidades indicadas. De esta forma el 15 de enero de 2002, se emitió el recibo de dinero Nº 38999 por la agencia Nombre74 Vehículos Suzuki, a Nombre01 de [Nombre01 006] por la suma de treinta y un mil ciento nueve dólares con setenta y siete centavos ($31.109.77), por concepto de pago del vehículo de referencia.

206) Respecto de los certificados de inversión Nº Identificacion07 y Nº Identificacion08 dicha parte de la dádiva fue admitida por el imputado [Nombre01 006], quien la invirtió en el puesto de bolsa del BCT Valores el 14 de enero de 2002 junto con sus intereses por un total $39.65 -agregando de su propio peculio una suma de efectivo por ocho mil cien dólares ($8.100)- en un fondo empresarial en dólares administrado por esa entidad financiera.

195) Respecto de los certificados de inversión Nº Identificacion07 y Nº Identificacion08 dicha parte de la dádiva fue admitida por el imputado [Nombre 006], quien la invirtió en el puesto de bolsa del BCT Valores el 14 de enero de 2002 junto con sus intereses por un total $39.65 -agregando de su propio peculio una suma de efectivo por ocho mil cien dólares ($8.100)- en un fondo empresarial en dólares administrado por esa entidad financiera.

207) Esta inversión fue liquidada el 19 de agosto de 2002 con el cheque Nº 3505-6 por veintinueve mil noventa y nueve dólares con seis centavos ($29.099.06) girado a favor de [Nombre01 197], cónyuge del imputado [Nombre01 006].

196) Esta inversión fue liquidada el 19 de agosto de 2002 con el cheque Nº 3505-6 por veintinueve mil noventa y nueve dólares con seis centavos ($29.099.06) girado a favor de [Nombre01 197], cónyuge del imputado [Nombre01 006].

208) Sin precisarse fecha, pero entre el 2 de julio de 2002 y el 5 de agosto de ese mismo año, [Nombre01 041] y [Nombre02 078] presentaron al imputado [Nombre01 006] una segunda dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion09 Nº Identificacion10 y Nº Identificacion11 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.

197) Sin precisarse fecha, pero entre el 2 de julio de 2002 y el 5 de agosto de ese mismo año, [Nombre02 041] y [Nombre02 078] presentaron al imputado [Nombre01 006] un segundo pago de la dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion09 Nº Identificacion10 y Nº Identificacion11 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.

209) Dicha dádiva fue aceptada por el imputado [Nombre01 006], quien la entregó a su esposa [Nombre01 197], ella procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98) emitido el 30 de setiembre de 2002 a su Nombre01 y con un plazo de tres meses y siete días.

198) Dicha dádiva fue aceptada por el imputado [Nombre01 006], quien la entregó a su esposa [Nombre01 197], ella procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98) emitido el 30 de setiembre de 2002 a su Nombre01 y con un plazo de tres meses y siete días.

210) Sin precisarse fecha, pero entre el 17 de diciembre de 2002 y el 21 de enero de 2003, los corruptores [Nombre01 041] y [Nombre01 078], presentaron al imputado [Nombre01 006] una tercera dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion12 Nº Identificacion13 Nº Identificacion14 y Nº Identificacion15 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 $100.08., que fue aceptada por el imputado [Nombre01 006] y la dispuso de la siguiente manera: a) Con relación al certificado Identificacion12 lo entregó junto con el cupón de intereses -agregando efectivo de su peculio por un total de mil doscientos dólares ($1.200)- al BCT Valores, con el objetivo de realizar una inversión en el fondo de liquidez en dólares, administrado por el BCT Sociedad Fondos de Inversión S.A. Esta inversión fue finalmente liquidada el 29 de mayo de 2003, con el cheque Nº 371-9 por once mil trescientos cincuenta y tres dólares con ochenta y seis centavos ($11.353.86) que fue girado a favor de la esposa del imputado [Nombre01 006]. El cheque fue depositado en la cuenta Nº [Valor 057] de la beneficiaria [Nombre02 197] en con el Banco Popular y de Desarrollo Comunal. b) Con relación al certificado Nº Identificacion14 lo entregó junto con el cupón de interés por $25.02, a su esposa [Nombre01 197], procediendo esta última a endosarlo y depositarlo a la cuenta corriente [Valor 035] en el Banco Popular y de Desarrollo Comunal. c) Con relación a los certificados Nº Identificacion13 y Nº2240020056299, también los entregó -junto con los respectivos cupones de intereses- a su esposa, quien entregó los certificados a la señora [Nombre02 199] con el objetivo de cancelar la decoración de su casa de habitación, y los cupones los depositó en la cuenta a su Nombre01 del Banco Popular y de Desarrollo Comunal.

199) Sin precisarse fecha, pero entre el 17 de diciembre de 2002 y el 21 de enero de 2003, los corruptores [Nombre01 041] y [Nombre01 078], presentaron al imputado [Nombre01 006] el tercer pago de la dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica Nº Identificacion12 Nº Identificacion13 Nº Identificacion14 y Nº Identificacion15 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 $100.08., que fue aceptada por el imputado [Nombre01 006] y la dispuso de la siguiente manera: a)Con relación al certificado Identificacion12 lo entregó junto con el cupón de intereses -agregando efectivo de su peculio por un total de mil doscientos dólares ($1.200)- al BCT Valores, con el objetivo de realizar una inversión en el fondo de liquidez en dólares, administrado por el BCT Sociedad Fondos de Inversión S.A. Esta inversión fue finalmente liquidada el 29 de mayo de 2003, con el cheque Nº 371-9 por once mil trescientos cincuenta y tres dólares con ochenta y seis centavos ($11.353.86) que fue girado a favor de la esposa del imputado [Nombre01 006]. El cheque fue depositado en la cuenta Nº [Valor 057] de la beneficiaria [Nombre01 197] con el Banco Popular y de Desarrollo Comunal. b) Con relación al certificado Nº Identificacion14 lo entregó junto con el cupón de interés por $25.02, a su esposa [Nombre01 197], procediendo esta última a endosarlo y depositarlo a la cuenta corriente [Valor 035] en el Banco Popular y de Desarrollo Comunal. c) Con relación a los certificados Nº Identificacion13 y Nº2240020056299, también los entregó -junto con los respectivos cupones de intereses- a su esposa, quien entregó los certificados a la señora [Nombre01 199] con el objetivo de cancelar la decoración de su casa de habitación, y los cupones los depositó en la cuenta a su Nombre01 del Banco Popular y de Desarrollo Comunal.

211) En total el imputado [Nombre01 006] se enriqueció ilícitamente mediante la recepción de las dádivas recibidas de los imputados [Nombre01 041], [Nombre01 028] y [Nombre01 078], por la suma de ciento diez mil trescientos treinta y seis dólares con veinte centavos ($110.336.20)…” (Cf.f.14490-14492 del tomo XXX del expediente).

200) En total el imputado [Nombre01 006] se enriqueció ilícitamente mediante la recepción de las dádivas recibidas de los imputados [Nombre01 041], [Nombre01 028] y [Nombre01 078], por la suma de ciento diez mil trescientos treinta y seis dólares con veinte centavos ($110.336.20)…” (Cf.f.00015473-00015476 del tomo XXXII del expediente).

Ciertamente, del recuadro anterior, es posible desprender que una sola circunstancia se aparta de la literalidad del cuadro fáctico acusado y es aquella que resulta del hecho 201 acusado con referencia al hecho 190 acreditado y relativo a la forma de pago del aparente delito de Enriquecimiento Ilícito atribuido al sindicado [Nombre 006] . Así, si se observa con detenimiento, al comparar los hechos 201 con respecto al 190, no existe alguna variación importante en la descripción del tipo penal de Enriquecimiento Ilícito imputado desde el primer momento a [Nombre01 006], ya que en ambos marcos fácticos se describen la manera en que [Nombre01 041] y [Nombre01 078], como representantes de [Nombre01 091], presentaron para él una dádiva consistente en certificados de inversión al portador, en consideración de su cargo como funcionario público y Subjefe de la Dirección del Departamento de Conmutación del Instituto Costarricense de Electricidad, determinándose como una divergencia no sustancial, la forma en que la dádiva fue entregada a [Nombre01 006], sea, que aquella “…fue pagada en tres tractos…” (Cf.f.00015474 del tomo XXXII del expediente). Al respecto, nótese, que una vez evacuada la prueba documental y testimonial en debate, el Tribunal de Juicio, determinó a partir de la descripción de los hechos acusados, con claro favorecimiento a la situación jurídica del imputado [Nombre01 006] , que se trataba de la supuesta comisión de un único delito de Enriquecimiento Ilícito y no de tres como inicialmente lo había contemplado el órgano fiscal, pues se trataba de un monto determinado a pagar y recibir, efectuado en tres tractos, claramente descritos en la acusación fiscal: el primero, se imputó realizado en el período comprendido entre el 10 de diciembre de 2001 y antes del 10 de enero de 2002, con la entrega de los certificados de inversión al portador, números Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 del Banco Cuscatlán de Costa Rica, cada uno por diez mil dólares, para un total de cincuenta mil dólares ($50.000) (Hecho 203 de la acusación fiscal); el segundo, descrito entre el 2 de julio y el 5 de agosto de dos mil dos, en el que [Nombre01 041] y [Nombre02 078] presentaron al imputado [Nombre01 006] los certificados de inversión al portador del Banco Cuscatlán de Costa Rica, números Identificacion09 Identificacion10 y Identificacion11 por diez mil dólares ($10.000), cinco mil dólares ($5.000) y cinco mil dólares ($5.000), respectivamente, para un total de veinte mil dólares y sus correspondientes cupones de intereses por la suma de $53.17 (Hecho 208 de la acusación fiscal), y el tercero, entre el 17 de diciembre de dos mil dos y el 21 de enero de dos mil tres, en el que ambos corruptores, entregaron los certificados de inversión al portador, números Identificacion12 Identificacion13 Identificacion14 y Identificacion15 del Banco Cuscatlán de Costa Rica, cada uno por diez mil dólares ($10.000) y sus respectivos cupones de interés por $100.08 (Hecho 210, de la acusación fiscal), para un total de ciento diez mil trescientos treinta y seis dólares con veinte centavos ($110.336.20). De tal manera que, la modificación realizada por el Tribunal de primera instancia al cuadro fáctico acusado no fue significativa ni conllevó una variación de elementos esenciales tendentes a incriminar la conducta delictiva atribuida, sino que aquella se da, exclusivamente, para detallar los aparentes tractos en que fue pagada la supuesta dádiva de ciento diez mil trescientos treinta y seis dólares con veinte centavos, a [Nombre01 006] , de modo que, contrario a lo determinado por el Tribunal de Apelación, tampoco fue inesperada ni conllevó una infracción al derecho defensivo (Ver en igual sentido Sala Tercera de la Corte Suprema de Justicia, votos 2013-000578, de las diez horas y seis minutos, del veinticuatro de mayo de dos mil trece, con integración de los(as) Magistrados(as) Doris Arias, Sandra Zúñiga, Rosibel López, Jorge Enrique Desanti y Ronald Cortés; 2013-00921, a las once horas treinta y cinco minutos, del doce de julio de dos mil trece, con integración de los(as) Magistrados(as) José Manuel Arroyo, Magda Pereira, Jorge Enrique Desanti, Sandra Zúñiga y Rafael Sanabria; 2006-00503, de las nueve horas, del dos de junio de dos mil seis, con integración de los(as) Magistrados(as) José Manuel Arroyo, Jesús Ramírez, Alfonso Chaves, Rodrigo Castro y Magda Pereira; 2005-00574, de las ocho horas cincuenta y cinco minutos, del diez de junio de dos mil cinco, integración de los(as) Magistrados(as) Alfonso Chaves, Jesús Ramírez, Magda Pereira, María Elena Gómez y Jorge Arce), en el tanto, esa conducta estuvo descrita desde Nombre11 en los hechos 203, 208 y 210 de la acusación fiscal, misma que el encartado y su defensa conocieron formalmente desde la celebración de la audiencia preliminar, en el período del primero de setiembre al tres de octubre de dos mil ocho (Cf.f.10423 del tomo XXIII del expediente). Véase que la descripción de hechos probados, benefició al encartado [Nombre01 006], ya que la acusación presentada inicialmente por el Ministerio Público, le atribuyó la comisión de tres delitos de Enriquecimiento Ilícito, mientras que el Tribunal de Juicio, haciendo uso de las potestades contempladas en el artículo 365 del Código Procesal Penal, recalificó la conducta a un único delito de Enriquecimiento Ilícito, realizado en tres tractos. En plena vinculación con las alegaciones planteadas, debe sostenerse que el principio de correlación entre acusación y sentencia, no resguarda, como parece entenderlo el Tribunal de Apelación, “…una identidad absoluta entre la relación fáctica de la pieza acusatoria y los hechos acreditados en sentencia como parece entenderlo el recurrente (…) El principio señalado se transgrede cuando, “los Juzgadores modifiquen sustancialmente el núcleo de la requisitoria fiscal, al punto de generar sorpresa e indefensión a las partes (ver de esta Sala, entre otros, los votos No. 137-F, de las 9:10 horas, del 24 de abril de 1992, No. 95-F, de las 9:35 horas, del 12 de marzo de 1993, No. 366-F, de las 9:05 horas, del 30 de junio de 1995 y No. 501, de las 10:40 horas del 25 de mayo de 2001)”. (Sala Tercera, Nº 198 de las 9:30 horas del 18 de marzo de 2005)…” (Sala Tercera de la Corte Suprema de Justicia, voto 2012-00544, de las nueve horas cuarenta y ocho minutos, del veintidós de marzo del dos mil doce, con integración de los Magistrados Arroyo, Nombre26, Pereira, Chinchilla y Arias), de tal manera que, tampoco el mencionado principio prohíbe las recalificaciones en debate, tal y como tácitamente parece entenderlo el Tribunal de Alzada, sino que aquellas pueden presentarse en el tanto no tengan que modificar elementos esenciales del marco atribuido o representen un menoscabo al derecho de defensa (Ver en igual sentido, (Sala Tercera de la Corte Suprema de Justicia, voto 2012-001773, de las quince horas y cincuenta y ocho minutos, del cuatro de diciembre de dos mil doce, con integración de los(as) Magistrados Jesús Ramírez, Madga Pereira, Carlos Chinchilla, Doris Arias y María Elena Gómez). En virtud de lo expuesto, se declaran con lugar los motivos segundo y tercero de la sección sétima del Recurso de Casación del Ministerio Público, por lo que se anula la sentencia en cuanto declaró la absolutoria de [Nombre01 006] , por falta de correlación entre acusación y sentencia y por la errónea aplicación del antiguo artículo 346 inciso 3) del Código Penal. Se reenvía la causa, para que con una nueva integración, se proceda conforme a derecho corresponda…”. Como se observa, los cuestionamientos del defensor de [Nombre01 006] fueron dilucidados por la Sala Tercera al conocer el recurso formulado por el Ministerio Público contra la resolución emitida por este despacho (con otra integración), en la cual, a su vez, se habían declarado con lugar los reclamos formulados por el licenciado Flores Fallas en esta fase procesal (apelación de sentencia). El órgano de casación, en última instancia, concluyó que la acusación no era omisa en cuanto a la descripción de los elementos del tipo penal del enriquecimiento ilícito; que el cambio efectuado por el tribunal de juicio, a saber, tener por demostrado que la retribución económica fue pagada en tres tractos, no solo no lesionó el derecho de defensa de [Nombre01 006] sino que -al contrario- lo favoreció, ya que se le condenó por un único delito de enriquecimiento ilícito; y finalmente, que la aplicación de la norma sustantiva (art. 346 inciso 3) del Código Penal) había sido correcta. Hablamos de decisiones que esta cámara debe respetar al efectuar el reenvío ordenado y que en todo caso, consideramos correctas, ya que en efecto, de la lectura integral de la acusación se extrae que [Nombre01 006] admitió las tres dádivas antes mencionadas con ocasión y durante el desempeño de su cargo, elementos que, justamente, integran el tipo penal del enriquecimiento ilícito. Nótese que en el hecho número 201 se contempló una descripción genérica de la conducta atribuida a [Nombre01 006]. En concreto, se afirma que a él le presentaron una dádiva en consideración a su cargo público de subjefe de la Dirección del Departamento de Conmutación del ICE, y que la admitió mientras permanecía en el ejercicio del mismo (f. 14.491 frente, tomo XXX). Este tribunal de apelación afirma que es una descripción genérica pues en este punto de la imputación no se alude a los montos admitidos por el justiciable, no siendo hasta después, específicamente en los hechos números 203, 208 y 210, donde se abordó ese extremo. Basta con leer los hechos ya citados de forma integral para concluir que el número 201 también forma parte de ellos, complementándolos. Por esta misma razón, bien pudo concluir el a quo que a [Nombre01 006] se le atribuyeron tres delitos independientes de enriquecimiento ilícito y no solo uno, como finalmente lo concluyó, sin que el Ministerio Público recurriese el punto. En consecuencia con lo anterior, la modificación que realizó el tribunal de mérito, en el sentido de señalar que este imputado admitió una única dádiva -y que por ende cometió un único delito- efectivamente le resultó más favorable. Por otra parte, es importante reiterar que el enriquecimiento ilícito es un tipo penal genérico o residual frente a figuras más complejas. A diferencia de lo que sucede con otros tipos penales, donde se prevé como elemento subjetivo adicional al dolo, un propósito específico que guía al funcionario público al recibir la dádiva o la promesa de esta y que es el mismo que dirige la actuación de quien, de manera convergente, presenta la retribución o la promete (p. ej., la aceptación de dádivas por un acto cumplido, en relación con la penalidad del corruptor), en el tipo penal del enriquecimiento ilícito el legislador contempló la simple admisión de retribuciones económicas que fueron presentadas u ofrecidas al funcionario público en consideración a su oficio y durante el ejercicio del cargo que motivó esa presentación u ofrecimiento, sin que sea necesario demostrar, porque no lo demanda el tipo penal, esa finalidad adicional que complementa el dolo. A modo de ejemplo, para sancionar el enriquecimiento ilícito no es necesario demostrar que la dádiva se recibió como retribución por un acto cumplido por el funcionario público y sin que hubiese promesa anterior, propósito que sí se prevé como un elemento especializante, en el tipo penal de aceptación de dádivas por un acto cumplido. Por eso, no le asiste razón al defensor al sostener que para que se configure este delito es indispensable que se hayan demostrado o bien, descartado de forma categórica, los elementos subjetivos que enlista y que son propios de tipos penales tienen una relación de género a especie con el enriquecimiento ilícito, donde este último es la norma genérica o residual, elementos que además, cabe decir, no fueron imputados en relación con [Nombre01 006]. Por todo lo anterior, se declaran sin lugar los reproches.

IX.- Primer motivo de casación por la forma. Errónea aplicación de los criterios de prescripción, siendo que una correcta lectura de las reglas de prescripción penal, permite concluir que los hechos acusados contra [Nombre01 006] se encuentran “prescriptos” (sic, f. 17.107, tomo XXXVI). Para el defensor público, se han quebrantado las reglas de prescripción consignadas en los artículos 31 inciso a), 33 inciso a), 376, 363 inciso b) y 369 inciso d), todos del Código Procesal Penal y 346 inciso 3) del Código Penal. En primer término, señala que la calificación dada a los hechos quedó reducida al delito de enriquecimiento ilícito. Ahora, para la fecha de los hechos acusados (10 de diciembre de 2001), el artículo 346 inciso 3) indicaba: “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”. Al coimputado [Nombre01 006] 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 a la mitad quedaría en 18 meses a partir de alguno de los supuestos de interrupción de la prescripción. En concreto, el artículo 33 C.P.P. establece que los plazos de prescripción se reducirán a la mitad en varios supuestos, uno de los cuales es la comparecencia del imputado a rendir declaración indagatoria. Tratándose de [Nombre01 006], dicho acto tuvo lugar a las 14:05 horas del 7 de marzo de 2005. Por ello, se debe computar un plazo de prescripción de 18 meses desde ese momento. Ahora, el siguiente acto interruptor, que fue el señalamiento a audiencia preliminar, tuvo lugar el 10 de septiembre de 2007, con lo cual cabe concluir que para entonces ya la acción penal había prescrito (lo hizo desde el 7 de septiembre de 2006). No obstante, el tribunal de juicio estimó que la declaración de tramitación compleja efectuada el 3 de marzo de 2006, produjo un efecto retroactivo, afectando la declaración como imputado que se realizó siguiendo las reglas de prescripción de tramitación ordinaria. El recurrente arguye que no es que desconozca que la tramitación compleja afecta la prescripción, sin embargo, dicho instituto no puede tener efectos retroactivos. Añade que si bien el tribunal niega que se dé tal retroactividad, lo cierto es que su interpretación Nombre05 eso, pues la ley no prevé que la declaratoria de tramitación compleja afecte los supuestos de interrupción cumplidos de forma ordinaria. Además, lo resuelto lesiona los principios de legalidad y de seguridad jurídica. Tras citar el artículo 376 del Código Procesal Penal y algunos razonamientos del fallo de instancia, el recurrente estima que el argumento de que los imputados eran conocedores de que la reducción podía quedar sin efecto si el proceso pasaba a ser de tramitación compleja, además de ser una falacia inatinente, Nombre05 dejar sin efecto el reconocimiento que el mismo tribunal hizo en cuanto a que el plazo de prescripción se redujo a la mitad con la declaración de los imputados. Como sustento de su postura, alude a la opinión vertida por Nombre75, quien estima que el plazo reducido a la mitad cumplido en la fase ordinaria del proceso, antes de la declaratoria de complejidad, debe aplicarse tal cual, sin darle efecto retroactivo a la declaratoria antes dicha (Nombre75, Procedimiento para Asuntos de Tramitación Compleja, en: Derecho Procesal Penal Costarricense, San José, Costa Rica, Asociación de Ciencias Penales de Costa Rica, Tomo II, 1° edición, 2007, pp. 923 a 924). Como agravio, el impugnante afirma que con lo decidido se lesiona el principio de legalidad y seguridad, al ignorarse las reglas de prescripción contempladas en el Código Procesal Penal, mismas que sirven para limitar el ius puniendi del Estado. Finalmente, apunta que el error radica en no considerar prescrita la acción penal a pesar de que lo está, por las razones dichas.

X.- El reclamo se declara sin lugar. El tema de la prescripción de la acción penal fue zanjado por la Sala Tercera de forma categórica, concluyendo que en el caso concreto la misma no había operado. Específicamente, señaló: “El reclamo se declara con lugar. De acuerdo con los planteamientos del órgano acusador y sobre los que esta Sala de Casación se avoca de forma estricta a resolver, resulta incierto el primer acápite alegado por el Ministerio Público en este segundo motivo, al afirmar que el Tribunal de alzada de manera tácita concibió la prescripción como un derecho fundamental de los imputados, puesto que ese órgano jurisdiccional, más bien asumió, desde la concepción esgrimida en el voto 856-2001, de las quince horas dieciocho minutos, del treinta y uno de enero de dos mil uno, de la Sala Constitucional, al instituto de la prescripción como “…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” (Cf.f.174446 del tomo XLII del expediente), criterio que esta Sala de Casación comparte sin mayores reparos, en atención estricta de la jurisprudencia erga omnes de la Sala Constitucional, que mediante los votos 4397-99, de las dieciséis horas seis minutos, del ocho de junio de 1999; 11582-01, de las ocho horas cincuenta y un minutos, del nueve de noviembre del dos mil uno; 3498-2002, de las catorce horas con cuarenta y seis minutos, del diecisiete de abril del dos mil dos; 2008-002119, de las catorce horas y cincuenta y un minutos, del trece de febrero del dos mil ocho, entre otros, ha sostenido con respecto a la naturaleza de la prescripción de la acción penal, que ésta no es más que: “… la cesación de la potestad punitiva del Estado provocada por el transcurso de un determinado período fijado en la ley. El Estado, en estos casos, declina el ejercicio de su potestad punitiva y el derecho de aplicar una determinada pena, o hacer ejecutar la pena ya impuesta en un caso concreto. Nace principalmente por respeto al principio de seguridad jurídica de las personas. Ante el poder-deber del Estado de aplicar la ley y perseguir el delito, surge también el derecho a resistir ese poder y es por eso que el legislador establece ciertas reglas, para limitarlo y proteger al ciudadano. El derecho de defensa y sus derivados, el de saber a qué atenerse -base de la seguridad jurídica-, son solo algunas de esas reglas que buscan equilibrar los intereses en juego -los del ciudadano y el Estado-, todo dentro del contexto de un sistema democrático de derecho. II. La prescripción no es, pues, un castigo, ni un beneficio -como lo (sic) parece concebirlo el recurrente-, sino un instrumento procesal que surge ante la necesidad de garantizarle al ciudadano que no habrá arbitrariedad frente a la prosecución del delito, porque ante él opera la plena vigencia de los parámetros objetivos establecidos en la ley, y no otros (…) III. El legislador a la hora de regular la prescripción de los delitos en nuestro país, por política criminal, escogió ciertos parámetros objetivos como el tipo de pena, el extremo mayor de la sanción, o bien topes máximos y mínimos en relación con el extremo mayor de la sanción, todo con el fin de procurar, de acuerdo a las características propias de cada delito, un normal desarrollo de la prosecución de la acción penal y del proceso en caso de que ésta llegue a ejercerse. Estimó el legislador que algunos casos, por su naturaleza, toman más tiempo para su denuncia, investigación y juzgamiento, que otros, como el de lesiones u otros menores que tienen un límite de prescripción de dos años. La fórmula que utiliza el legislador, a juicio de esta Sala, no es arbitraria, es sólo una entre muchas que pudo haber utilizado para fijar el tiempo -de acuerdo a cada delito-, que estima necesario para la denuncia, investigación y castigo. Bien pudo haber optado por topes fijos, máximos y mínimos para cada tipo de delito, o no tomar en cuenta el tipo de pena, pero optó por una regulación que al utilizar varios factores (tipo de pena, de delito, extremo mayor, etc) pudiera servir de parámetro para conciliar los intereses del Estado en la prosecución del delito, y los derechos del ciudadano frente su poder punitivo. No está obligado el legislador, a optar por una única fórmula que se aplique a todos los delitos por igual, porque como se explicó supra, lo que pretende este instituto es regular de una forma razonable el tiempo prudencial que el legislador considera propio para el ejercicio de la acción penal en cierto tipo de delitos. El hecho de que para delitos graves establezca un máximo de prescripción menor que el extremo mayor de la pena, mientras que no lo hace Nombre02 para delitos menores en los cuales permite una prescripción mayor al extremo mayor de la pena, no implica una violación a la Constitución y obedece a la necesidad inicial de localizar las pruebas, depurarlas y escoger las que se relacionan con el tema probandi; de facilitar la preparación de la defensa y la eventual celebración de un debate, circunstancias que se superan con un plazo que el legislador estimó en dos años, razón por la que al transcurrir éstos pierde importancia este parámetro y se aplican otros como el tanto de pena a imponer, a efecto de fijar la prescripción de la acción penal…” (Sala Constitucional de la Corte Suprema de Justicia , voto 6472-96, de las quince horas cuarenta y dos minutos, de veintisiete de noviembre de mil novecientos noventa y seis. El suplido es nuestro. En igual sentido, ver votos 01797-97, de las quince horas veintiún minutos, del dos de abril de mil novecientos noventa y siete; 2008-002119, de las catorce horas y cincuenta y uno minutos, del trece de febrero del dos mil ocho; 2008-002120, de las catorce horas y cincuenta y dos minutos, del trece de febrero del dos mil ocho, todos de la Sala Constitucional). Desde la anterior perspectiva, al ser considerada la figura de la prescripción de la acción penal como un instituto meramente procesal que deviene en la cesación del ius puniendi estatal, ocurrido a consecuencia del transcurso del tiempo, se hace necesario dejar claro que, dentro de esa noción, se deben estudiar al menos tres elementos fundamentales que la jurisprudencia constitucional ha desarrollado: Primero, que la regulación de la prescripción de la acción penal es un asunto de política criminal que adopta el Estado a través del órgano competente para ello, sea la Asamblea Legislativa, de manera que ésta tiene potestades para establecer los parámetros para su regulación. Segundo , que no existe un derecho constitucional a la prescripción, sino más bien el derecho a la seguridad jurídica, a la legalidad, a la tutela judicial efectiva y a la igualdad, principios que no resultan lesionados por el Estado en tanto los plazos establecidos para la denuncia, investigación y juzgamiento de los delitos establecidos por el legislador sean razonables y estén definidos y limitados por la ley. Tercero, que la prescripción es un instrumento jurídico creado a efecto de declinar el ejercicio de la potestad punitiva del Estado, que actúa a modo de sanción procesal por la inactividad de los sujetos procesales en los procesos iniciados o no." (sentencia n° 4397-99 de las dieciséis horas seis minutos, del ocho de junio de 1999)…” ( Sala Constitucional de la Corte Suprema de Justicia, voto 3498-2002, a las catorce horas con cuarenta y seis minutos, del diecisiete de abril del dos mil dos. El suplido pertenece al original). A partir de tales consideraciones, resulta patente que la conceptualización teórica empleada en el caso concreto por el Ad quem, sobre el instituto de la prescripción de la acción penal, se encuentra ajustada a derecho, pues con la cita transcrita se desprende que aquella está concebida como la cesación del poder estatal y no como un derecho del imputado. Empero, desde la salvedad antedicha, también nota esta Cámara de Casación que la sentencia 2012-2550, presenta un yerro de gran envergadura al declarar la prescripción de las causas penales seguidas contra los imputados [Nombre01 001] , [Nombre 006], [Nombre 028], [Nombre 018], [Nombre02 022], [Nombre01 041] y [Nombre01 033] e interpretar y aplicar la norma 376 del Código Procesal Penal referente a la declaratoria de tramitación compleja, por lo que sobre ese cuestionamiento el motivo debe declararse con lugar, en atención a las razones que de seguido se exponen . El procedimiento de tramitación compleja, ha sido entendido por la Sala Constitucional, como un proceso excepcional incluido en nuestra legislación a partir del artículo 376 del Código Procesal Penal, que “…suscita un evidente conflicto entre dos tendencias o intereses que han estado presentes a lo largo de su historia. Por un lado, la preocupación por establecer un sistema de garantías frente al poder estatal que proteja la libertad y dignidad de la persona, y por otra parte, la consecución de la mayor eficiencia posible en la aplicación de la coerción penal. Un modelo de proceso penal en un Estado democrático de derecho, debe dar respuesta al doble problema de la eficiencia y la garantía, buscando el punto de equilibrio entre ambos intereses. El procedimiento para asuntos de tramitación compleja, está diseñado como un procedimiento de excepción, para casos calificados, frente a los cuales realmente exista una dificultad de tramitación clara y evidente. Se pretende evitar la disfunción que se produciría al aplicar los plazos ordinarios a causas cuya complejidad demanda un tratamiento diverso, sin dejar de establecer un plazo máximo que limite el ejercicio del poder punitivo. Su carácter excepcional radica en el hecho de que no sólo se amplían los plazos del procedimiento ordinario, sino además, los plazos de la prisión preventiva, lo cual resulta obviamente lesivo para los intereses del imputado. Dicha tramitación debe ser autorizada en forma debidamente motivada por el tribunal, de oficio o a solicitud del Ministerio Público y puede acordarse cuando la misma sea compleja a causa de la multiplicidad de hechos, el elevado número de imputados o de víctimas, o bien, cuando se trate de delincuencia organizada. La finalidad de la autorización es la de poder contar con plazos más amplios que los del procedimiento ordinario para la prisión preventiva, la investigación, la resolución del asunto y la interposición y resolución de los recursos; en atención a la naturaleza y características particularmente complejas de la causa. La excepcionalidad de este tipo de proceso deviene en virtud de las exigencias del principio de justicia pronta y cumplida, previsto en el artículo 41 de la Constitución Política, según el cual, toda persona debe tener acceso a una justicia pronta para hacer valer sus derechos, Nombre02 como del derecho del imputado a ser juzgado en un plazo razonable, establecido en los artículos 25 de la Declaración Americana de Derechos y Deberes del Hombre, 9.3 del Pacto Internacional de Derechos Civiles y Políticos, 7.5 y 8.1 de la Convención Americana sobre Derechos Humanos…”(Sala Constitucional de la Corte Suprema de Justicia, voto 2006-01029, de las catorce horas con treinta y cuatro minutos, del primero de febrero del dos mil seis. El suplido es nuestro). De manera que, se trata de un proceso penal especial decretado por resolución fundada, en el que, sin violentar el principio de igualdad de las diversas partes procesales, por la complejidad del caso, sea, en razón de la multiplicidad de hechos, número de imputados o víctimas o se trate de crimen organizado, se amplían diversos plazos para efectos de llevar a cabo la investigación y los procedimientos en forma adecuada, mismos que de otro modo y bajo los plazos ordinarios convencionales, por la dificultad en la tramitación de la causa no podrían realizarse, a pesar de la importancia social que ella podría revestir (Ver en igual sentido, Sala Constitucional de la Corte Suprema de Justicia , voto 2006-01029, de las catorce horas con treinta y cuatro minutos, del primero de febrero del dos mil seis). Así, el artículo 376 del Código Procesal Penal, norma las reglas generales o los presupuestos básicos sobre las que se rige este procedimiento, al establecer que: “...Cuando la tramitación sea compleja a causa de la multiplicidad de los hechos, del elevado número de imputados o de víctimas o cuando se trate de causas relacionadas con la investigación de cualquier forma de delincuencia organizada, el tribunal de oficio o a solicitud del Ministerio Público, podrá autorizar, por resolución fundada, la aplicación de las normas especiales previstas en este Título. En la etapa de juicio, la decisión sólo podrá adoptarse en el momento en que se convoca a debate. Cuando la aplicación del procedimiento complejo sea dispuesta durante las fases preparatoria o intermedia, no regirá la reducción del término de la prescripción a la mitad, prevista en el artículo 33 de este Código…" (Así modificado mediante Ley No.8146, de 30 de octubre del 2001, publicado en La Gaceta No.227, de 26 de noviembre del 2001. El suplido es nuestro), pudiendo derivarse expresamente, de la mencionada norma, que nuestro legislador por medio de esa normativa, dispuso un tratamiento especial, en atención a las particularidades del caso, mismo que resulta diverso de acuerdo con las etapas en las que fuere dictado. Así, cuando la aplicación del procedimiento sea dispuesta durante las fases preparatoria o intermedia, el plazo de prescripción continúa corriendo, solamente que, ya no reducido, sino en forma completa. No se trata de una causal de interrupción de la prescripción de la acción penal, porque el plazo que había transcurrido se mantiene, solo que ahora correría sin reducción alguna. Sobre el particular, la Sala Constitucional, al resolver una acción presentada por un particular que alegaba la conculcación del derecho a ser juzgado en un plazo razonable, desde la supuesta inconstitucionalidad de los artículos 376, 377, 378 y 379 del Código Procesal Penal referentes al procedimiento de tramitación compleja, estableció: “… Por otra parte, el hecho de que el artículo 376 in fine, señale que cuando la aplicación del procedimiento complejo sea dispuesta durante las fases preparatoria o intermedia, no regirá la reducción del plazo de la prescripción a la mitad prevista en el artículo 33 del Código Procesal Penal, no vulnera el derecho a ser juzgado en un plazo razonable. Como bien lo dice el mismo accionante, la prescripción de la acción penal y la duración razonable del proceso no son la misma cosa y comienzan a computarse en momentos distintos; la prescripción desde la comisión del hecho y la duración del proceso desde que la imputación se individualiza contra un sujeto en particular. La prescripción es la cesación punitiva del Estado provocada por el transcurso de un determinado período fijado en la ley y atiende a razones de seguridad jurídica. La no reducción del plazo de la prescripción a la mitad en los delitos de tramitación compleja resulta razonable, por cuanto, en estos casos la dificultad de la tramitación puede impedir la represión de dichas delincuencias, cuya persecución resulta de interés para la sociedad. El plazo de la prescripción no coincide con el plazo para ser juzgado y deben valorarse en este último caso, las circunstancias particulares del caso, tales como la complejidad, el proceder de las partes y de las autoridades (sic)…” (Sala Constitucional de la Corte Suprema de Justicia, voto 2006-01029, de las catorce horas con treinta y cuatro minutos, del primero de febrero del dos mil seis. El suplido es nuestro). Desde la constitucionalidad del artículo 376 citado, debe aclararse que el propio ordinal realiza una diferencia importante entre las diversas etapas del proceso y los efectos que la declaratoria de tramitación compleja produce en ellos, al impedir expresamente la reducción de los plazos de prescripción a la mitad, para las etapas de investigación e intermedia, obedeciendo ese accionar a que son esas etapas tempranas donde se necesita mayor tiempo para la investigación que esos delitos complejos requieren y entendiéndose que existe una regulación de prohibición expresa contemplada para la fase de juicio. Con respecto a la reducción del plazo prescriptivo en las etapas tempranas del proceso, como parte de los cuestionamientos que ocupan a esta Sala, debe entenderse, que esa declaratoria de complejidad, confluye con algunos de los actos interruptores contenidos en el artículo 33 del Código Procesal Penal, como serían la declaración indagatoria o la convocatoria a la audiencia preliminar, según sea el caso, lo que implica a su vez que, al constituir actos propios de las etapas iniciales e intermedias, fueron considerados por el legislador al momento de dar vigencia al numeral 376 citado, de modo que, aún y cuando ya se hubiesen presentado como interruptores de la prescripción, la declaratoria de trámite complejo por sí misma y una vez firme, posee incidencia directa sobre la reducción del plazo prescriptivo a la mitad que prevé la norma 33 citada, corriendo el plazo completo. Tan es Nombre02 que, en el caso de la prisión preventiva, decretada la tramitación compleja, los plazos se amplían a dieciocho meses, teniendo un efecto inmediato de ampliación de los plazos de la prisión preventiva. Sobre el particular, esta Sala Tercera, con integración de los(as) Magistrados(as) Doris Arias, Rafael Ángel Sanabria, Ronald Cortés, Rosibel López y Sandra Zúñiga, en el voto 2013-01758, de las diez horas y cuarenta y cinco minutos, del tres de diciembre del dos mil trece, a propósito de la declaratoria de complejidad en debate, retomó el tema de los diversos efectos contemplados en la norma 376 del Código Procesal Penal, a partir del momento procesal en que se presenta esa declaratoria, al señalar en lo que interesa que: "...El tribunal de juicio, declaró el asunto de tramitación compleja en la resolución que convocaba a las partes a debate. Lo anterior resulta importante por cuanto se debe diferenciar sobre la aplicación de plazos en casos declarados de tramitación compleja, según el momento procesal en el que se de tal declaratoria. Sobre este aspecto en particular, resulta importante señalar que el artículo 376 del Código Procesal Penal establece la posibilidad para el Tribunal, de oficio, o a solicitud del Ministerio Público, de autorizar, mediante resolución fundada, la aplicación del procedimiento para asuntos de tramitación compleja, cuando la causa se dificulte por la multiplicidad de los hechos, del elevado número de imputados o de cualquier forma de delincuencia organizada, adicionándose la citada norma, con un nuevo párrafo, mediante reforma legal del 30 de octubre de 2001, publicada en La Gaceta número 27 del 26 de noviembre siguiente, donde se indicó que cuando dicho trámite especial sea dispuesto durante las fases preparatoria o intermedia, afecta directamente el plazo de tramitación de la causa, específicamente el perentorio de la prescripción, en el sentido de que no regirá la reducción del término de prescripción a la mitad, previsto en el artículo 33 idem(sic). Sin embargo, cuando la autorización para que se aplique el referido procedimiento, se realice en la etapa de juicio, no es atendible la citada excepción, por lo que en estos casos el término de prescripción imperante en el caso concreto es el que establece el procedimiento ordinario, sin que se afecte los intereses del imputado al aplicarse reducido a la mitad…" (El suplido es nuestro). Sumado a lo antedicho, también resulta patente que, de conformidad con los artículos 148 y 444 del Código Procesal Penal, la declaratoria de complejidad en las etapas preparatoria e intermedia surtirá los efectos jurídicos antes aludidos, como regla general, a partir del momento en que la resolución adquiera firmeza. Siendo importante, debido a que es sobre esa fecha que empieza a contabilizarse los efectos del trámite complejo y en especial, para determinar el plazo prescriptivo, dado que la regla es que ese no se reduce, Nombre11 y cuando no haya sobrevenido el plazo prescriptivo reducido a la mitad antes de la declaratoria. Una vez claros los efectos del proceso de tramitación compleja, se hace necesario, examinar el caso concreto, para determinar puntualmente los efectos que produjo la declaratoria de complejidad en la tramitación del expediente, en especial, con respecto al conteo de los plazos de la prescripción. Así, si se observa con atención, la solicitud de tramitación compleja que realizare el Ministerio Público fue presentada ante el Juzgado Penal de la Jurisdicción Penal de Hacienda y de la Función Pública, el día veintitrés de febrero de dos mil seis, cuando el expediente aún se encontraba en la etapa de investigación, pues para esa fecha no se había confeccionado la acusación y la solicitud de apertura a juicio (Cf.f.7432-7495 del tomo XVII del expediente). En efecto, el trámite fue resuelto por el Juzgado Penal del Segundo Circuito Judicial de San José, mediante resolución de las quince horas, del tres de marzo de dos mil seis (Cf.f.7506-7566 del tomo XVII), para adquirir firmeza el veintitrés de junio de dos mil seis, fecha en la que fueron declarados por el Tribunal Penal de Hacienda, los recursos de apelación interpuestos por las partes (Cf.f.7604-7610, 7615-7619 del tomo XVII del expediente). Sobre lo resuelto por el Juzgado Penal supra citado, es evidente que éste ponderó los alcances del procedimiento de tramitación compleja, ya que el fallo analizó, por una parte, la enorme cantidad de hechos delictivos investigados hasta ese momento procesal (Cf.f.7560 del tomo XVII del expediente) mientras que por otro, la multiplicidad de sujetos investigados, -trece en total-, Nombre02 como que se trataba de un asunto de criminalidad organizada, que por el volumen de probanzas, conllevaba “…complicaciones en la labor investigativa, el reconocimiento de esta singularidad en el ordenamiento jurídico penal costarricense, que valga acotar se aleja en mucho de estar preparado para afrontar supuestos delictivos de dimensiones como las del caso en cuestión, es el instituto de la Tramitación Compleja, que busca mitigar ese desequilibrio con relación a los procesos ordinarios y evitar que fenómenos delictivos de gran escala, como el presente, ultimen en la impunidad; de allí que en el presente caso deviene en necesario la disposición de este instituto procesal a fin de proseguirla y concluirla con buen término…”(Cf.f.7564 del tomo XVII del expediente. El suplido es nuestro), de modo que, a partir de esa valoración jurídica y fáctica, ese mismo órgano jurisdiccional dimensionó en el “Por tanto” de esa resolución, los alcances de la declaratoria de tramitación compleja sobre la reducción del plazo de prescripción a la mitad, al determinar que: "...Por las razones antes expuestas, siendo procedente conforme lo establece el artículo 376 y siguientes del Código Procesal Penal, SE ORDENA EL PROCEDIMIENTO DE TRAMITACIÓN COMPLEJA en la presente causa. Fijándose el plazo de un año para concluir la investigación preparatoria. No regirá en el presente asunto la reducción del término de prescripción a la mitad, prevista en el artículo 33 ibidem (conforme a lo establece (sic) la Ley 8164 del 30 de octubre de 2001 publicada en La Gaceta Número 227 del 26 de noviembre del dos mil uno), Nombre02 como las demás consecuencias procesales establecidas en el artículo 378 ibídem... " (Cf.f.7565-7566 del tomo XVII. El suplido es nuestro), siendo posteriormente, aclarado ese fallo a petición del ente fiscal, en el tanto, el mismo Juzgador de la etapa preparatoria, señaló, con relación a los alcances del artículo 378 del Código Procesal Penal que: "...Llevando razón los representantes del Ministerio Público, y con el fin de evitar confusiones, de conformidad con el artículo 147 del Código Procesal penal(sic), se aclara la resolución de este Despacho de las quince horas del tres de marzo de dos mil seis, mediante la cual "A SOLICITUD DEL MINISTERIO PUBLICO SE ORDENA PROCEDIMIENTO DE TRAMITACIÓN COMPLEJA", visible a folios 5309-5369, lo cual no implica una modificación de lo resuelto, para que en el último párrafo y en el "POR TANTO", de la misma, sea(sic) lea correctamente que en vista de haberse ordenado el Procedimiento de Tramitación Compleja en el presente asunto, regirán los efectos previstos en el artículo 378 del Código Procesal Penal , por ello se aclara además que cuando se indica en la citada resolución que se fija el plazo de un año para concluir la investigación, es haciéndose referencia a la norma de comentario, lo anterior claro está en caso de procederse en su oportunidad conforme a lo establece(sic) el artículo 171 ibídem..." (Cf.f.7589-7590 del tomo XVII del expediente. El destacado es nuestro). Con vista en las dos citas textuales transanteriores, resulta evidente que desde la etapa de investigación, los imputados y sus defensas técnicas, conocían los alcances del dictado de la tramitación compleja en el particular, siendo que sus efectos fueron ampliamente desarrollados por el Juez de la etapa preparatoria en la resolución de marras, misma que estuvo firme, mediante el voto 403-06, de las trece horas treinta minutos, del veintitrés de junio de dos mil seis, dictado por el Tribunal Penal de Juicio, actuando como Tribunal de Apelaciones, que declaró sin lugar los recursos de apelación interpuestos por las defensas técnicas de los acriminados [Nombre01 033] , [Nombre01 046] (q.e.p.d.) y [Nombre01 018] (Cf.f.7703-7707 del tomo XVII del expediente). Desde esta perspectiva, es patente que tanto los justiciables como sus defensas técnicas, eran conocedores desde la emisión de la resolución de las quince horas, del tres de marzo de dos mil seis, sobre los efectos de la tramitación compleja, no obstante, los recursos fueron dirigidos a cuestionar puntualmente la declaración en sí y no precisamente sus efectos. En suma, si bien en el particular, operó conforme al ordinal 33 inciso a) del Código Procesal Penal, el primer acto interruptor de la prescripción, sea, la reducción del plazo de prescripción a la mitad al momento de tomar la declaración indagatoria de la mayoría de los encartados, en el año dos mil cuatro, por estarse tramitando la causa como un proceso ordinario, es lo cierto, que una vez que la causa es declarada como compleja, dado que no se había extinguido la acción penal, por ese motivo, el plazo de la prescripción continúa corriendo, sin reducción, al tenor de lo estipulado en el artículo 376 in fine citado. Nombre02 las cosas, es claro, que la vigencia del efecto reductor del plazo prescriptivo como resultado de la tramitación ordinaria del expediente, Nombre11 estuvo sujeta a que la causa se mantuviera tramitándose como ordinaria, en cambio, cuando fue dictada y estuvo firme la tramitación compleja, en las etapas tempranas del proceso, la condición reductora de los plazos prescriptivos varió, conforme al numeral 376 citado, dado que la única excepción a ese razonamiento, se habría presentado en el supuesto en el que el plazo fatal prescriptivo hubiera fenecido antes de ese dictado, ya que en ese supuesto habría acaecido la extinción de la acción penal por prescripción, al tonarse esa circunstancia como una situación jurídica consolidada, a la que no habría podido aplicarse los efectos del artículo 376 antes citado. De esta manera, la interpretación de eliminar el efecto reductivo del plazo de la prescripción por haber acontecido la declaración indagatoria, contemplada en el numeral 33 inciso a) del Código Procesal Penal, una vez firme la declaratoria de tramitación compleja, no violenta en lo absoluto los principios de irretroactividad de la ley, ni puede ser considerada como una infracción al principio de seguridad jurídica, puesto que la eficacia de la norma, por el numeral 129 de la Constitución Política, se presenta desde la vigencia de la reforma que adicionó el último párrafo del artículo 376 del Código Procesal Penal, mediante Ley 8146, del treinta de octubre de dos mil uno, publicada en La Gaceta No. 227, del veintiséis de noviembre de dos mil uno y tanto el cuadro fáctico acusado por el órgano fiscal, como las indagatorias de los imputados [Nombre01 022], [Nombre 001], [Nombre01 041], [Nombre01 028] y [Nombre01 033] se presentaron a finales del año dos mil cuatro y principios de dos mil cinco, es decir, cuando dicha ley, sin lugar a dudas se mantenía vigente. Además, la declaratoria en firme de tramitación compleja, de fecha veintitrés de junio de dos mil seis, fue dictada cuando no existía alguna situación jurídica consolidada, ni había prescrito ninguna de las causas acusadas a los diversos justiciables, según se desprende el siguiente recuadro:

Nombre01 del Imputado Delito y Pena Fecha de la Indagatoria Firmeza de la declaratoria de tramitación compleja Fecha en que las causas habrían prescrito sin la declaratoria de tramitación compleja Primera convocatoria a audiencia preliminar [Nombre01 022] Cohecho impropio en la modalidad de corrupción agravada (5 años sin reducción). Reducción del plazo a la mitad 3o meses.

10 de octubre de 2004 23 de junio de 2006 10 de abril de 2007 10 de setiembre de 2007 [Nombre02 001] Fraude de simulación, Cohecho impropio en la modalidad de corrupción agravada (5 años sin reducción). Reducción del plazo a la mitad 30 meses 08 de octubre de 2004 23 de junio de 2006 08 de abril de 2007 10 de setiembre de 2007 [Nombre 041] Cuatro delitos de la penalidad de corruptor por corrupción agravada en la modalidad de cohecho impropio (5 años). Reducción del plazo a la mitad 30 meses 14 de octubre de 2004 23 de junio de 2006 14 de abril de 2007 10 de setiembre de 2007 [Nombre 028] Tres delitos de la penalidad de corruptor por corrupción agravada en la modalidad de cohecho impropio (5 años). Reducción del plazo a la mitad 30 meses 14 de octubre de 2004 23 de junio de 2006 14 de abril de 2007 10 de setiembre de 2007 [Nombre 033] Instigación al delito de corrupción agravada en la modalidad de cohecho impropio (5 años). Reducción del plazo a la mitad de 30 meses 15 de octubre de 2004 23 de junio de 2006 15 de abril de 2007 10 de setiembre de 2007 [Nombre 018] Enriquecimiento Ilícito (3 años). Reducción del plazo a la mitad 18 meses.

30 de noviembre de 2004 23 de junio de 2006 30 de mayo de 2006. Sin embargo, para el caso de [Nombre01 018], la indagatoria se realizó el mismo día de la vigencia la Ley 8422, por lo que el plazo no se redujo.

10 de setiembre de 2007 [Nombre 006] Enriquecimiento ilícito (3 años). Reducción del plazo a la mitad 18 meses 7 de marzo de 2005 23 de junio de 2006 7 de setiembre de 2006. Sin embargo, para el caso de [Nombre01 006], la indagatoria se realizó cuando entró en vigencia la Ley 8422, por lo que el plazo no se redujo.

10 de setiembre de 2007 Como puede observarse, para ninguno de los sindicados, a saber, [Nombre01 022], [Nombre02 001], [Nombre01 041], [Nombre01 028] y [Nombre01 033] habría prescrito la causa, al momento en que se presenta la declaratoria del tramitación compleja, por lo cual no podría hablarse de una situación jurídica consolidada, pues entre la indagatoria realizada a cada uno de ellos, en diferentes fechas de octubre de dos mil cuatro y la declaratoria en firme de la tramitación compleja no habría transcurrido el plazo reducido a la mitad contemplado en el artículo 33 del Código Procesal Penal, sea treinta meses, para los delitos de cohecho impropio en la modalidad de corrupción agravada; penalidad de corruptor por corrupción agravada en la modalidad de cohecho impropio e instigación al delito de corrupción agravada en la modalidad de cohecho impropio y dieciocho meses para los delitos de enriquecimiento ilícito. Sobre el particular, es claro que la declaratoria de tramitación compleja firme desde el veintitrés de junio de dos mil seis, de acuerdo con el artículo 33 del Código Procesal Penal, tuvo como efecto inmediato, el conteo del plazo a partir de la declaración indagatoria, pero sin la reducción contenida en el mencionado artículo 33 supra citado, sino bajo las reglas del artículo 376 del Código Procesal Penal, debiendo hacerse mención aparte a la situación jurídica de los acriminados [Nombre01 018] y [Nombre01 006], en el tanto estos fueron indagados una vez que la Ley 8422 se encontraba vigente y por lo tanto, por el principio de irretroactividad de las normas procesales penales, correspondía su aplicación desde su entrada en vigencia el 29 de octubre de dos mil cuatro. Ciertamente, tal y como fuese estudiado en la sentencia 2014-01392, de las nueve horas y treinta minutos, del catorce de agosto de dos mil catorce, de esta Sala Tercera, en la que se unifican precedentes contradictorios dictados por este órgano jurisdiccional y aquellos emitidos tanto por el antiguo Tribunal de Casación Penal como por el Tribunal de Apelaciones ambos del Segundo Circuito Judicial de San José, en cuanto al tema de la no aplicación retroactiva de las normas procesales vigentes, presenta como asidero normativo, en primer término “…el numeral 34 de la Constitución Política, el cual señala literalmente que: “A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas.”. En ese sentido, únicamente las leyes sustantivas tienen efectos retroactivos en beneficio del acusado, Nombre02 se establece en el ordinal 12 del Código Penal, en donde se apunta lo siguiente: “Ley posterior a la comisión de un hecho punible. Si con posterioridad a la comisión de un hecho punible se promulgare una nueva ley, aquél se regirá por la que sea más favorable al reo, en el caso particular que se juzgue”. Caso contrario, en nuestra normativa procesal no se establecen disposiciones expresas sobre la aplicación en el tiempo de las leyes adjetivas. Sin embargo, tratándose de leyes procesales, no rige la que más favorezca al encartado, sino la que se encuentre vigente. Nombre02 se ha definido tanto en jurisprudencia como en doctrina, las cuales también son fuentes de Derecho, en razón de que las normas procesales obedecen a cuestiones de política criminal y no a un derecho del justiciable. Asimismo, porque durante el tiempo agotado se van consolidando situaciones jurídicas, como el transcurrir de la acción penal en el presente caso, de acuerdo a los actos que la interrumpen y suspenden, conforme a las leyes procesales en vigencia, es decir se resguarda el principio de seguridad jurídica, y por supuesto, también va a depender de la ilicitud que se investigue…”(Sala Tercera de la Corte Suprema de Justicia, voto 2014-01392, de las nueve horas y treinta minutos, del catorce de agosto de dos mil catorce). Nombre02 como la jurisprudencia constitucional, emitida al respecto, en especial, el voto 0351-91, de las dieciséis horas, del doce de febrero de mil novecientos noventa y uno, citado en la resolución 2014-01392 supra mencionado, que en lo que interesa señala: “...se debe agregar con relación al artículo 34 de la Carta Fundamental, lo siguiente: Tratándose de una nueva ley procesal, los actos ya realizados, las situaciones jurídicas consolidadas, Nombre02 como los efectos que ambos generen durante la vigencia de la ley anterior, no pueden ser afectados por ley posterior… ”(El suplido es nuestro). Igualmente, de acuerdo, con el voto 4397-99, de las dieciséis horas seis minutos, del ocho de junio de mil novecientos noventa y nueve, también de la Sala Constitucional: “…las leyes de derecho público que regulan aspectos formales y no sustanciales, son de aplicación inmediata a todos los procesos, incluyendo los que se encuentran en curso (…) Debe entenderse, sin embargo, que tratándose de una nueva ley procesal, los actos ya realizados, las situaciones jurídicas consolidadas y los efectos que ambos generen durante la vigencia de la ley anterior, no pueden ser afectados por ley posterior (…) en materia procesal, la norma aplicable normalmente (…) es la vigente en el momento de cumplirse la respectiva actuación…”. Y por último, también evacuó consulta judicial facultativa de constitucionalidad, formulada por la Sala Tercera, con respecto a la aplicación retroactiva o no de las disposiciones relativas a la prescripción, contenidas en la ley procesal penal, oportunidad en la que se argumentó: “…las leyes rigen Nombre11 hacia el futuro, por ser ésta la única forma de concebirlas como reglas o normas de conducta o comportamiento humano, y como instrumento para equiparar o igualar el trato que brindan las autoridades. Es así, como en principio, las normas no pueden regir los actos pasados si no estaban vigentes en la época del suceso, dado que el autor no ha podido adecuar su actuar conforme a ellas. Sin embargo, eventualmente puede valorarse un comportamiento pasado con una regla sancionada con posterioridad, juicio que está supeditado a un poder reglado, es decir que la aplicación retroactiva de una norma sólo procede por mandato expreso de la ley, y cuando con ello no se infrinja el precepto constitucional establecido en su artículo 34; es decir, la aplicación retroactiva de la ley procede únicamente cuando con ello no se afecte persona alguna, derechos patrimoniales adquiridos o situaciones jurídicas consolidadas, y por el contrario, se beneficie al interesado con esa aplicación retroactiva (…) 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 lo 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 (…) Para poder evacuar la consulta formulada por la Sala Tercera respecto de la aplicación del principio de la norma penal más favorable a las reglas de la prescripción de la acción penal, debe definirse en primer lugar en qué consiste ésta, y cómo se regula la legislación nacional. Varios son los elementos que deben hacerse notar respecto de la prescripción de la acción penal -ya señalados con anterioridad en la jurisprudencia constitucional-, que ayudan a conformar una idea respecto de este instituto jurídico. Primero, que la regulación de la prescripción de la acción penal es un asunto de política criminal que adopta el Estado a través del órgano competente para ello, sea la Asamblea Legislativa, de manera que ésta tiene potestades para establecer los parámetros para su regulación. Segundo, que no existe un derecho constitucional a la prescripción, sino más bien el derecho a la seguridad jurídica, a la legalidad, a la tutela judicial efectiva y a la igualdad, principios que no resultan lesionados por el Estado en tanto los plazos establecidos para la denuncia, investigación y juzgamiento de los delitos establecidos por el legislador sean razonables y estén definidos y limitados por la ley. Tercero, que la prescripción es un instrumento jurídico creado a efecto de declinar el ejercicio de la potestad punitiva del Estado, que actúa a modo de sanción procesal por la inactividad de los sujetos procesales en los procesos iniciados o no (…) las reglas de la prescripción de la acción penal son de carácter eminentemente procesal por dos razones importantes; en primer lugar, porque su regulación se ubica en el Código Procesal Penal, codificación que tiene un carácter eminentemente instrumental en lo que se refiere a la aplicación del derecho de fondo, como se indicó anteriormente; y en segundo lugar, porque por sí misma, la prescripción implica un límite a la potestad punitiva del Estado, que se aplica a modo de sanción (procesal) a consecuencia de la inactividad procesal en un determinado plazo, según se analizó, teniendo como consecuencia que conlleva una extinción de la acción penal, que es un instituto también de carácter procesal, ubicado en el Código Procesal Penal (…) En cuanto al principio de la aplicación de la norma más favorable, es importante reiterar que es un elemento integrante del debido proceso, y que por lo tanto tiene rango constitucional, como lo ha señalado en forma reiterada este Tribunal Constitucional (entre otras, ver sentencia número 0821-98, de las dieciséis horas cincuenta y un minutos, del diez de febrero de mil novecientos noventa y ocho). Sin embargo, debe hacerse la aclaración de que este principio es de aplicación exclusiva a la ley sustantiva, y referido al imputado únicamente, según se regula en los tratados internacionales de derechos humanos, concretamente en el artículo 15.1 del Pacto Internacional de Derechos Civiles y Políticos (…) Primero: Si el principio de la norma penal más favorable es de aplicación exclusiva a la ley sustantiva, consecuentemente, no se puede aplicar a las reglas de la prescripción de la acción penal. De esta suerte, lo propio es aplicar las reglas de la prescripción con fundamento en el sistema procesal bajo el que se rige, según lo dispuesto en los Transitorios I. y II. del Código Procesal Penal, disposiciones que también son de naturaleza procesal por excelencia. Segundo: Cada régimen procesal debe mantenerse incólume e indivisible, por cuanto la política del legislador al establecer una visión jurídica de los hechos humanos busca la uniformidad, la coherencia y la sistematicidad del instituto, para lograr los fines propuestos por el legislador ordinario…” ( Sala Constitucional de la Corte Suprema de Justicia, voto 4397-99, de las dieciséis horas seis minutos, del ocho de junio de mil novecientos noventa y nueve, también de la Sala Constitucional. El suplido es nuestro). Ahora bien, en el caso concreto, debe acotarse que los sindicados [Nombre01 018] y [Nombre01 006], por haber sido indagados en fecha treinta de noviembre de dos mil cuatro el primero (Cf.f. 1166 del tomo III del expediente) y siete de marzo de dos mil cinco el segundo (Cf.f.1984 del tomo IV del expediente), el plazo prescriptivo de tres años, según el artículo 62 de la Ley 8422, no fue reducido a la mitad, sino que estuvo contabilizado completo hasta el siguiente acto interruptor, por tratarse de la vigencia de una ley procesal, lo que hace que exista una razón más para no tener por acaecido el plazo prescriptivo. En definitiva, al presentarse una desaplicación del numeral 376 del Código Procesal Penal para los imputados [Nombre01 001] , [Nombre 028], [Nombre 022], [Nombre 041] y [Nombre 033] Nombre02 como la errónea aplicación del artículo 62, para los coencartados [Nombre 006] y [Nombre02 018], se declara con lugar la impugnación del Ministerio Público y se anula la sentencia absolutoria por prescripción de la acción penal 2012-2550, dictada en autos por el Tribunal de Apelación de la Sentencia Penal, decretándose el reenvío para una nueva sustanciación como en derecho corresponda, dejando claramente establecido esta Sala que, en esta causa, la acción penal no se encuentra prescrita.” (Los destacados son del original). De lo anterior se desprende que la Sala Tercera, con ocasión del recurso formulado por el Ministerio Público, decidió sobre el tema sometido a examen por el defensor de [Nombre01 006], concluyendo que la acción penal no había prescrito, ello porque: 1) La declaración de tramitación compleja suprimió los efectos reductores del plazo de prescripción asociados a los actos procesales que interrumpieron su cómputo durante el procedimiento ordinario. 2) Los actos procesales que interrumpen el plazo de prescripción y que han sido efectuados tras la entrada en vigencia del artículo 62 de la ley N° 8422, ley contra la corrupción y el enriquecimiento ilícito en la función pública, no van acompañados de la reducción del plazo a la mitad. De igual manera, según se desprende de las últimas líneas del considerando transcrito, el órgano de casación dispuso que el reenvío ordenado debe partir de esa premisa (entiéndase, de que la acción penal no está prescrita). Hablamos de una decisión que limita nuestra competencia, no solo porque se adoptó para el caso concreto, sino porque en buena técnica impugnaticia, es el órgano revisor el que establece los alcances del reenvío que ordena. Por ende, siendo que el reclamo formulado por el licenciado Flores Fallas fue resuelto de manera definitiva en casación, el mismo debe declararse sin lugar. No obstante lo anterior, esta cámara se permite indicar que en efecto, en el caso del imputado [Nombre01 006] la acción penal no está prescrita, ya que al margen de la interpretación que se pueda efectuar del artículo 376 último párrafo del C.P.P., lo cierto es que este justiciable fue indagado cuando estaba vigente el artículo 62 de la ley N° 8422, Ley contra la corrupción y el enriquecimiento ilícito en la función pública, publicada en La Gaceta Nº 212 de 29 de octubre de 2004, que dispone: “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.” (El destacado no es del original). Como se ha explicado en acápites anteriores, del inciso a) de la norma se extrae que tratándose de delitos contra los deberes de la función pública y los previstos en la ley N° 8422, al darse cualquiera de los actos señalados por el Código Procesal Penal como interruptores del cómputo del plazo de la prescripción, el conteo empieza a correr de nuevo de forma completa, lo que constituye una excepción al artículo 33 del Código recién mencionado. Este es un artículo aplicable a los actos procesales realizados a partir de su entrada en vigencia, sea que estos tengan lugar dentro de un procedimiento nuevo o uno que ya se encontraba en marcha, lo anterior en tanto las reglas de prescripción, según la Sala Constitucional, son de naturaleza instrumental (en un sentido similar, cfr. resoluciones números 5305-1996; 4397-99 y 351-1991, todas de la Sala Constitucional). Dicho esto, nótese que el a quo condenó a [Nombre01 006] por un delito de enriquecimiento ilícito, previsto y sancionado en el artículo 346 inciso 3) del Código Penal con una pena de prisión de 6 meses a 2 años. Por tanto, su plazo de prescripción es de 3 años (art. 31 inciso a) C.P.P.). Ahora, este imputado compareció a rendir declaración indagatoria el 7 de marzo de 2005 (f. 1984 a 1986 frente, tomo VI), fecha en la que se interrumpió el cómputo del plazo, que en razón del artículo 62 vigente para ese momento, volvió a correr de nuevo y por el mismo período de tres años, sin reducción alguna, hasta el 7 de marzo de 2008, fecha para la cual ya había tenido lugar otro acto interruptor, a saber, la resolución que convocó a audiencia preliminar -10 de septiembre de 2007, f. 8.452 frente, tomo XX-. A partir de ese día el plazo corrió de nuevo sin reducción alguna, hasta el 10 de septiembre de 2010, fecha para la que había sido interrumpido nuevamente, mediante el señalamiento a debate. Luego de esto, se dio el dictado de la sentencia por parte del tribunal de juicio (N° 167-2011 del 27 de abril de 2011) y posteriormente, el dictado de la sentencia de este tribunal, con otra integración (N° 2012-2550 del 21 de diciembre de 2012) y la sentencia de casación (Nº 2014-1847, de las 11:20 horas del 21 de noviembre de 2014), actos procesales que al tenor del artículo 33 del Código Procesal Penal, también interrumpen el cómputo del plazo de la prescripción. En suma, coincidimos con la Sala Tercera en cuanto concluyó que en el caso de [Nombre01 006] la acción penal no ha prescrito, pues no ha transcurrido el plazo para que esto suceda sin que antes no haya operado una nueva causal de interrupción. Por todo lo expuesto, el motivo se rechaza.

XI.- Dada la relación existente, esta cámara resolverá de manera conjunta el cuarto motivo por la forma y el punto 2) del quinto motivo por la forma. Cuarto motivo por la forma. Lesión a las reglas del in dubio pro reo , pues el tribunal, además de modificar sustancialmente los hechos acusados, llegó a una conclusión de certeza que se neutraliza con razonamientos del mismo voto salvado. Reitera el licenciado Flores Fallas que se quebrantó el principio de correlación entre acusación y sentencia, contraviniendo lo dicho en los artículos 9, 363 inciso b) y 369 inciso d), ambos del Código Procesal Penal, aspecto que se sanciona con nulidad. Para el recurrente, el problema de la sentencia radica en la reconstrucción de los hechos acusados que realiza el tribunal de juicio para endilgarle al justiciable una sola conducta de enriquecimiento ilícito con un pago de dádiva en tres tractos. Reclama que no se puede saber cuál de las tres dádivas presentadas a [Nombre01 006] lo fue en consideración a su oficio y para salvar ese obstáculo, el voto de mayoría recalificó los hechos atribuidos a [Nombre01 006] a un único delito con tres entregas de dádiva, sin valorar que la conducta atribuida a este, de aceptación de dádiva presentada, hace inviable lo anterior, pues cada aceptación de dádiva constituye una conducta independiente y debe describir todos los elementos del tipo penal, lo que no hace la acusación. Asimismo, si bien se pueden tener por cumplidos todos los requisitos de tipicidad tratándose de una de las aceptaciones de dádiva presentada a [Nombre01 006], se desconoce cuál de las tres se debe relacionar con el hecho número 201. Se añade que si fuese posible vincular este hecho con alguna de las tres descripciones de aceptación de dádiva presentada, resultaría que las otras dos aceptaciones que fueron descritas serían atípicas y habría que absolver al justiciable por su comisión. Nombre11 en esta línea de ideas, el impugnante apunta que la conducta subsistente, si es que mantiene los requisitos de tipicidad, no puede probarse. La prueba demuestra que [Nombre01 006] aceptó una dádiva que le fue presentada y por tanto, no se trató de la materialización o entrega de una dádiva que había sido ofrecida y aceptada con anterioridad. Dicho esto, tampoco es posible descartar que la dádiva haya sido ofrecida por razones diferentes a las previstas en el numeral 346 inciso 3) del Código Penal, como por ejemplo, para que [Nombre01 006] realizara un acto propio de sus funciones, u omitiera realizarlo, para que lo retardara, o hiciera uno contrario a sus funciones, o bien, que fuese una dádiva por haber cumplido u omitido un acto en su calidad de funcionario público. También pudo ser que la dádiva hubiese sido entregada porque [Nombre01 006], en abuso de su cargo, obligó o indujo a [Nombre01 041] o a [Nombre01 078] a darla o prometerla. Las anteriores hipótesis nos llevan ante diferentes posibilidades y títulos delictivos, en los cuales el sujeto activo puede terminar recibiendo ventajas económicas. El licenciado Flores Fallas insiste en que al variar el cuadro fáctico y recalificar los hechos, el tribunal no está aplicando el art. 9 del C.P.P., sino tratando de superar el problema de la acusación que describe tres hechos independientes que no contienen los elementos esenciales del tipo penal de enriquecimiento ilícito. Por ello, también se quebrantó el in dubio pro reo. En este punto, es importante añadir que en la exposición del cuarto motivo el recurso resulta inconcluso, pues al parecer falta un folio (así, ver últimas líneas del folio 17.126 frente, tomo XXXVI). Por esa razón y siendo que la impugnación planteada por la licenciada Nazira Merayo Arias es una reiteración de la elaborada por el licenciado Flores Fallas, este despacho se ha permitido completar la descripción valiéndose de lo dicho por la licenciada Merayo Arias a folios 172.320 y 172.321 frente. En estos folios, se insiste en que la acusación no describió los elementos del tipo penal y que por ello el tribunal de juicio modificó los hechos imputados, afirmando que se trató de una sola dádiva en tres tractos y no de tres delitos independientes. De igual manera, la defensora reitera que ante la duda, lo que debió hacer el a quo no era corregir la acusación, sino absolver a su defendido. Quinto motivo por la forma. Lesión a la fundamentación de la sentencia, por quebrantar el principio de derivación. La sentencia incurre en el vicio de falta de fundamentación, quebrantando Nombre02 lo preceptuado en los artículos 142, 363 inciso b) y 369 inciso d) del C.P.P. Según la defensa, el vicio se presenta en varios puntos, siendo el número 2) el que se conocerá aquí. 2) Dádiva pagada en tres tractos siendo que la acusación nunca describió ese comportamiento, sino tres delitos independientes sin elementos del tipo penal acusado. En este acápite, el recurrente alude al considerando XII, denominado “Descripción de la conducta del imputado [Nombre 006]”, donde el tribunal señaló: “190) El encartado [Nombre01 041] y el indiciado [Nombre01 078], como representantes de la empresa [Nombre 091], le presentaron al acusado [Nombre02 006] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre02 006] 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”. Acusa lo ya planteado previamente en su recurso, específicamente, que el tribunal de juicio tuvo por demostrada una circunstancia no descrita en la acusación, a saber, que la dádiva fue pagada en tractos. Según lo explicó el tribunal, en virtud de la aplicación e interpretación más favorable de la ley al encartado (artículo 9 del Código Procesal Penal), debieron recalificarse los tres delitos independientes de enriquecimiento ilícito a uno solo. Sin embargo, esta explicación del tribunal además de insuficiente, perjudicó a [Nombre01 006]. El tribunal no valoró el tema de los concursos, como tampoco el hecho de que la acusación se había decantado por la fórmula de la “aceptación de dádiva presentada”, lo que significa que por la presentación de cada dádiva y la correlativa aceptación de la misma, se dio una conducta típica independiente. Como están descritos los hechos 203, 208 y 210 de la acusación, se configuraría un concurso real y por tanto, la descripción de cada hecho debe cumplir todos los presupuestos del tipo, requisito que intentó evadir el tribunal con la modificación que realizó, dándole un giro a la acusación que afectó el derecho de defensa, porque esta parte procesal en sus conclusiones, presentó el tema como un problema de atipicidad, siendo que el tribunal de manera sorpresiva cambió los hechos ante lo que consideró un “vacío”. Reitera que el Ministerio Público no describió que la presentación de dádivas haya sido “en consideración al oficio”, por lo que cada hecho acusado, de forma independiente, no contempló los elementos objetivos esenciales, siendo que además la dádiva, de la manera que está descrita en los hechos 203, 208 y 210, es un elemento común a varios tipos penales, como lo son el cohecho propio, el cohecho impropio, la aceptación de dádivas por un acto cumplido, la penalidad del corruptor y el enriquecimiento ilícito. Al constatarse la ausencia de la descripción de elementos esenciales del tipo penal del artículo 346, inciso 3) del Código Penal y tratándose de hechos independientes, se debió concluir que los tres comportamientos acusados eran atípicos.

XII.- No lleva razón la defensa. En cuanto a los alegatos relacionados con la falta de correlación entre acusación y sentencia y la inclusión en los hechos acusados por el órgano requirente, de los elementos típicos del delito enriquecimiento ilícito, el recurrente debe estarse a lo indicado en el considerando VIII.- de esta resolución. Tal y como se explicó entonces, esos temas fueron conocidos y resueltos por la Sala Tercera, rechazando los alegatos que en esa dirección planteó el licenciado Wilson Flores. Sobre el motivo o propósito por el cual se presentaron las dádivas a [Nombre01 006], a saber, si eran por ejemplo, a cambio de que este realizara un acto propio de sus funciones o uno contrario a sus deberes, o para no hacer o retardar un acto propio de sus funciones, o si fue como retribución por un acto cumplido sin promesa anterior, basta reiterar que esos propósitos no forman parte del tipo penal aplicado, con lo cual es intrascendente que esa finalidad no se hayan podido demostrar o descartar categóricamente. De hecho, si esta posibilidad se hubiese vislumbrado, es probable que a [Nombre01 006] no se le hubiese imputado un delito residual sino cualquier otro que regulase de manera especial y precisa el tema. A modo de ejemplo, en el cohecho propio, el funcionario público que admite la dádiva o su promesa sabe que la misma está dirigida a que él haga un acto contrario a sus deberes, o a que no haga o retarde un acto propio de sus funciones. Con independencia de que esos actos se realicen, lo importante es que la actuación del funcionario está teñida por este propósito, como lo está también la conducta de quien entrega la ventaja patrimonial o la promete. Lo mismo sucede en otros tipos penales, por ejemplo, la aceptación de dádivas por un acto cumplido, o la corrupción agravada. Se trata de tipos penales especiales frente al enriquecimiento ilícito, donde la configuración de alguno de los primeros puede suponer o comprender la realización del segundo, pero no a la inversa. Tratándose del artículo 346 inciso 3) del Código Penal, basta con que el funcionario público admita la dádiva que le fue presentada u ofrecida en consideración a su oficio mientras permanece en el ejercicio del cargo, lo que se ha tenido por demostrado aquí, pues según se extrae de la relación de hechos probados, [Nombre01 006], en su condición de subjefe de la Dirección del Departamento de Conmutación del ICE y mientras permaneció en el cargo, aceptó dineros provenientes de [Nombre01 060] que le fueron trasladados a través de [Nombre01 058]. Se reitera, la búsqueda de otros propósitos adicionales no es elemento subjetivo adicional al dolo que esté contemplado en este tipo penal, con lo cual es intrascendente que no haya prueba al respecto. Por lo antes expuesto, se declara sin lugar el motivo.

XIII.- Quinto motivo por la forma. Lesión a la fundamentación de la sentencia, por quebrantar el principio de derivación. La sentencia incurre en el vicio de falta de fundamentación, quebrantando Nombre02 lo preceptuado en los artículos 142, 363 inciso b) y 369 inciso d) C.P.P. Según el defensor, el vicio se presenta en varios puntos, que por una cuestión de orden expositivo, esta cámara procede a resolver de manera separada. 1) Condena en costas personales (pago de honorarios profesionales correspondientes a la Defensa Pública) impuestas a [Nombre01 006] , sin fundamento probatorio en cuanto a su solvencia. En cuanto al tema de las costas, la sentencia indicó: “Dada la comprobada solvencia económica de los sentenciados [Nombre01 022] , [Nombre01 001], [Nombre01 046] y [Nombre02 006], 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 Nombre02 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, el defensor arguye que el tribunal de juicio no explicó cómo llegó a la conclusión de la efectiva solvencia económica de [Nombre01 006], lo que si bien no afecta la libertad personal del justiciable, sí afecta su patrimonio.

XIV.- El reclamo es de recibo: De folios 16.342 a 16.343 frente del tomo XXXIV, el tribunal de juicio abordó el tema de las costas, señalando: “C) 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 [Nombre01 022], [Nombre01 001], [Nombre01 046] y [Nombre02 006], 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 Nombre02 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. Los coimputados [Nombre01 001], [Nombre01 022], [Nombre01 046] y [Nombre01 006], han intervenido en este proceso con patrocinio letrado suministrado por el Estado a través de la Defensa Pública. En relación con las costas del proceso dispone el numeral 265 del Código Procesal Penal lo siguiente: “En todo proceso, el Estado cubrirá los gastos en relación con el imputado y las demás partes que gocen del beneficio de litigar sin el cobro de ellos. Cuando el imputado tenga solvencia económica, deberá pagar al Poder Judicial los servicios del defensor público o cualquier otro que haya recibido. Para ello, se seguirá el procedimiento establecido en la Ley Orgánica del Poder Judicial, respecto del defensor público. Se exceptúa de ese deber el pago del traductor o del intérprete oficiales.” En este proceso se ha probado que los tres imputados citados son personas con solvencia económica: han desempeñado importantes cargos públicos altamente remunerados, han manejado sociedades y cuentas bancarias con altas sumas de dinero, han tenido inscritos a su Nombre01 valiosos bienes muebles e inmuebles, realizado múltiples viajes al extranjero, como es el caso de [Nombre01 022] y [Nombre01 046]. En el caso de [Nombre01 001], se ha demostrado que donó valiosos bienes como vehículo y celular a su hermana [Nombre01 075] , que traspaso por sumas millonarias vehículos inscritos a su Nombre01 y que adquirió valiosos bienes como una lancha, ganado, equipo agrícola, un hotel, etc. Nombre02 las cosas y los (sic) razones dichas, se debe condenar a los coimputados [Nombre01 001], [Nombre01 022] y [Nombre01 046] a cubrir al Estado los servicios de defensor público que les fue prestado, estimando el Tribunal que por tal rubro deben cubrir la suma de DIEZ MILLONES DE COLONES CADA UNO que cubre el desempeño profesional de cada uno de sus defensores desde el apersonamiento hasta el dictado del fallo. De conformidad con el numeral 152 de la Ley Orgánica del poder Judicial, la fijación de los honorarios por participación de la defensa pública los establece el juzgador de acuerdo con la obligación del imputado de pagar al Poder Judicial los servicios del defensor público. Para la determinación de la suma fijada, el Tribunal ha tomado en consideración que el Defensor Wilson Flores, defensor de [Nombre01 006] fue nombrado el 8 de agosto de 2006 según constancia de folio 6449 del tomo XV del legajo de investigación; la licenciada Yamura Valenciano, defensora pública de [Nombre01 001] y [Nombre01 022] fue nombrada el 27 de febrero de 2008 según consta a folio 9163 del tomo XXI del legajo de investigación y que el licenciado Hugo Santamaría, defensor de [Nombre01 046] fue designado como tal a partir del 2 de julio de 2008, según consta a folio 9255 del tomo XXI del legajo de investigación. Además de lo anterior, se ha tomado en consideración también, que tan solo la etapa del debate, que requirió una intervención ininterrumpida de la defensa pública, tardó más de un año y que para el año 2010 el salario base de un defensor público fue de 821.000,00 y 854.200,00 colones en el primero y segundo semestre respectivamente, a lo que debe sumarse una serie de rubros como anualidades, prohibición y otros, que como mínimo duplican el salario base, por lo que la suma fijada de diez millones corresponde al salario de un semestre de un defensor público, pero que se considera razonable para que sea cubierta por los imputados citados a favor del Poder Judicial. Dichas cantidades deberán ser canceladas dentro de los quince días siguientes a la firmeza del fallo, con el consiguiente embargo de bienes y remate en caso de incumplimiento de dicha obligación (artículo 153 de la Ley Orgánica del Poder Judicial).” (El destacado no es del original). Del texto transcrito y, en particular, de las líneas resaltadas, se extrae que el a quo condenó a cuatro imputados al pago de costas (servicios profesionales prestados por la defensa pública), a saber, a [Nombre01 022], [Nombre01 046], [Nombre01 001] y [Nombre01 006]. Sin embargo, para concluir que estos eran personas de solvencia económica analizó únicamente la situación de los tres primeros, dejando sin fundamentación alguna lo dispuesto tratándose de [Nombre01 006]. Así, afirmó que los tres imputados cuentan con recursos económicos en tanto ocuparon cargos públicos importantes altamente remunerados, manejaron sociedades y cuentas bancarias con elevadas sumas de dinero e inscribieron a su Nombre01 bienes valiosos. En cuanto a [Nombre01 022] y [Nombre01 046], aludió a sus múltiples viajes al extranjero y en cuanto a [Nombre01 001], mencionó los traslados de bienes que efectuó a su hermana. Tan claro es que en este análisis no se consideró la situación de [Nombre01 006] que líneas más adelante, el a quo excluyó su nombre, citando únicamente el de los otros tres justiciables. Nombre02 indicó: “… se debe condenar a los coimputados [Nombre01 001], [Nombre01 022] y [Nombre01 046] a cubrir al Estado los servicios de defensor público que les fue prestado…”. Por tanto, lleva razón el defensor al señalar que el tribunal de mérito no valoró con detenimiento el caso de su patrocinado, persona en relación con la cual no se puede aseverar, o no al menos sin una debida fundamentación, que cuente con las características atribuidas a los otros endilgados. A modo de ejemplo, véase que según la misma sentencia, se habla de un imputado que fue ingeniero eléctrico en el ICE y luego, para la época de los hechos, subjefe de la dirección del Departamento de Conmutación de esa misma institución, con un salario aproximado a los 400.000 colones mensuales (cfr. declaración de [Nombre02 153], superior jerárquico de [Nombre 006], f. 14.809 frente, tomo XXX y f. 16.259 frente, tomo XXXIV, donde el tribunal de instancia aludió a este punto). Asimismo, en la sentencia recurrida no se atribuye a este encartado el manejo de sociedades y cuentas bancarias con “elevadas sumas de dinero”, reiterados viajes al extranjero o la inscripción de bienes valiosos, lógicamente, más allá de aquellos que se relacionan con la actividad criminal que está siendo sometida a juzgamiento. En resumen, siendo que la condenatoria en costas impuesta a [Nombre01 006] es ayuna de fundamentación, se declara con lugar el motivo, se anula la sentencia en cuanto a ese extremo y se ordena el reenvío al tribunal de juicio para que, con una nueva integración, proceda a resolver lo que corresponda.

XV.- Quinto motivo por la forma. Punto identificado con el número 3). En este acápite, la defensa reclama que al imputado le presentaron certificados al portador, sin embargo, en su mayoría fueron utilizados por [Nombre01 197] y [Nombre01 199]. Tras aludir a los hechos demostrados números 197, 198 y 199, el recurrente afirma que se le atribuyó al justiciable [Nombre01 006] el haber recibido los certificados de inversión al portador del Banco Cuscatlán de Costa Rica N° Identificacion09 N° Identificacion10 y N° Identificacion11 sin embargo, conforme a la prueba documental, concretamente el secuestro de información bancaria, la persona que recibió dichos certificados es la señora [Nombre01 197], quien procedió a constituir el certificado de ahorro a plazo N° 16102460220109801. El mismo tribunal de juicio, en el considerando denominado “B.2. Entrega de segunda dádiva. Análisis hechos 208 y 209”, solo describe la participación de [Nombre01 197]. Ante esto, el defensor cuestiona cómo, si la señora [Nombre01 197] se abstuvo de declarar, se puede llegar a la conclusión de que los certificados fueron presentados al señor [Nombre01 006]. A partir de este punto el impugnante transcribe varios extractos del fallo, relacionados con el análisis de esos hechos 208 y 209 y en los cuales el a quo concluyó que fue [Nombre01 197] la persona que endosó los certificados. Si esto es así, es decir, si se señala a una persona distinta a [Nombre01 006], solo quebrantado el principio de derivación se puede atribuir a este imputado el haber recibido esos certificados al portador. En cuanto a la tercera dádiva recibida por [Nombre 006], el licenciado Flores Fallas manifiesta que se da la misma situación. En primer lugar, el impugnante procede a hacer una transcripción de lo expuesto por el tribunal de juicio en su voto de mayoría, en el acápite denominado “B.3 ENTREGA DE TERCERA DÁDIVA. ANÁLISIS HECHOS 210” (cfr. folios 16.269 a 16.273 de la sentencia, tomo XXXVI), para de seguido afirmar que en ese análisis, “… llama la atención que los certificados al portador presentados y utilizados por [Nombre01 199], [Nombre01 197], le son atribuidos a [Nombre01 006] en los hechos probados, pero nuevamente como llega a esa conclusión el tribunal, si el mismo tribunal de juicio le atribuye esos certificados a terceros que no son [Nombre01 006]. Para finalizar, el tribunal no tiene certeza de la firma que relacionan con [Nombre01 006], al señalar: “certificado (Identificacion1 y su cupón de intereses presenta en el reverso el aparente endoso de [[Nombre0 006]”, esto porque nunca se llevó a cabo ninguna comparación del cuerpo de escritura, con la firma de [[Nombre0 006]…” (f. 17.144 frente, la transcripción es literal). El licenciado Flores Fallas entiende que si los certificados al portador son presentados y utilizados por [[Nombre0 199] y [[Nombre0 197], por lo que -en su criterio- se desconoce cómo el tribunal de juicio logró imputárselos a [[Nombre0 006], siendo que, además, al no haberse realizado un estudio pericial no se tiene certeza de que la firma que figura en el endoso del certificado Identificacion1 sea la de este justiciable.

XVI.- El alegato se rechaza. El que el destino de algunos certificados al portador fuese dispuesto por [Nombre01 199] y [Nombre01 197], o bien que no se haya realizado un estudio pericial sobre la firma que figura en el endoso del certificado Identificacion12 no son circunstancias que hagan dudar de la conclusión del tribunal de mérito, en el sentido de que [Nombre01 006] aceptó una ventaja de contenido económico procedente de [Nombre01 060], que le fue presentada en consideración a su oficio. En ese sentido, nótese que [Nombre01 197] no es una persona ajena al imputado. Todo lo contrario, es su esposa. [Nombre01 199], por su parte, fue contratada para decorar una vivienda de la pareja y según declaró, recibió de [Nombre01 197] dos certificados de inversión al portador como pago por su trabajo. Finalmente, si bien un perito no examinó la firma contenida en el endoso del certificado Identificacion12 la conclusión del tribunal de mérito, en el sentido de que es del imputado, no quebranta las reglas de la sana crítica, ya que Nombre02 se extrae de los múltiples elementos de prueba (de carácter indiciario) ponderados de manera integral y armónica en la sentencia. A fin de profundizar en los argumentos antes expuestos, se van a examinar los indicios que consideró el a quo de folios 16.263 frente en adelante. En cuanto a los primeros cinco certificados de inversión que aceptó [Nombre01 006] , por $10.000 cada uno, para un total de cincuenta mil dólares ($50.000), más sus cupones de intereses por ciento ochenta y dos dólares con noventa y cinco centavos ($182.95), de los cuales tres fueron usados para comprar en la agencia Nombre74 el vehículo marca Suzuki, Grand Vitara XL, serie , chasis , motor H27A105387, modelo 2002, y los otros dos para ser invertidos en el puesto de bolsa del BCT Valores, inversión que fue liquidada posteriormente con un cheque a favor de [Nombre01 197] (hechos probados 192 a 196), el fallo recurrido ponderó los informes periciales elaborados a partir de la documentación aportada por Vetrasa, que da cuenta del uso, por parte del imputado [Nombre01 006], de los certificados de inversión números Identificacion16 Identificacion06 Identificacion17 procedentes de [Nombre01 058]. y cuyos fondos proceden de [Nombre01 060], para comprar en dicha agencia el vehículo marca Nombre04, Grand Vitara XLK, placa número [Valor 010]. Además de estos informes, se analizó abundante documentación que da cuenta de esta transacción, p. ej., documentos donde Nombre74 hizo constar haber recibido de [Nombre01 006] los certificados antes mencionados, Nombre02 como sus respectivos cupones de intereses, la factura de compra del automotor y la escritura pública donde se hizo el traspaso del vehículo al imputado, automotor que finalmente quedó inscrito a su Nombre01 (f. 16.263 y 16.264 frente). En relación con los otros dos certificados de inversión (los Nº Identificacion07 y Identificacion08 también por $10.000 cada uno), se examinaron varios informes periciales de los cuales se extrae que fueron invertidos por [Nombre01 006] en la cuenta Nº 2489 con el BCT Valores Puesto de Bolsa S.A., junto con sus cupones de intereses ($36,59) y un aporte en efectivo de $8.100,00, inversión que fue liquidada el 19 de agosto de 2002 con el cheque Nº 3506-6 por $29.099,06, girado a favor de [Nombre01 197], su esposa, consignándose en el reverso el aparente endoso de la beneficiaria (f. 16.264 frente y 16.265 frente). Asimismo, se examinó en profundidad abundante prueba documental que permite relacionar a [Nombre01 006] con los hechos. Se trata, por ejemplo, de los certificados originales de inversión y sus cupones de intereses, donde se puede leer, en el reverso, el Nombre01 de [Nombre01 006] y su número de cédula (prueba CED01), Nombre02 como otros documentos entregados por el puesto de bolsa (prueba N° 349), donde figura un oficio del BCT en el que se indica que esa entidad recibió de manos de [Nombre02 006], el 11 de enero de 2002, los certificados de depósito N° Identificacion07 y Nº Identificacion08 por $10.000,00 cada uno, y sus respectivos cupones por $36,59; y adicionalmente se recibieron $8.100,00 para un total de $28.173,18 que fueron invertidos en el fondo empresarial en dólares administrado por BCT. Asimismo, que la inversión fue liquidada el 19 de agosto de 2002 por un total de $29.099,06 y se giró el cheque Nº 3505 a Nombre01 de [Nombre01 197]. Al respectivo informe se adjuntó además copia del recibo de los $28.173,18 a Nombre01 de [Nombre01 006] (f. 16.265 frente de la sentencia). Lo mismo sucede con el segundo traslado de fondos a este imputado. Según se tuvo por probado, [Nombre01 006] admitió tres certificados de inversión al portador por un monto 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, mismos que luego entregó a su esposa, quien procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98) emitido el 30 de setiembre de 2002 a su Nombre01 y con un plazo de tres meses y siete días (hechos probados 197 y 198). En cuanto a este traslado, el tribunal de mérito estudió concienzudamente todas las probanzas que permiten reconstruir el tránsito del dinero desde [Nombre01 060] hasta las manos del imputado, Nombre02 como el destino que dio a tales fondos (f. 16.265 a 16.269 frente). Si bien los tres certificados de inversión involucrados fueron endosados a favor del Banco Popular con el número de cédula de [Nombre01 197], y fue ella quien procedió a constituir el certificado de ahorro a plazo Nº 16102460220109801 por un total de veinte mil cuatrocientos cuarenta y dos dólares con noventa y ocho centavos ($20.442.98), esto no impide establecer con certeza que los certificados en cuestión hayan sido aceptados por [Nombre01 006]. Lo anterior porque, como bien indica la sentencia recurrida, [Nombre01 197] es la esposa de este justiciable; porque [Nombre01 006] recibió fondos de [Nombre01 060] en varias oportunidades, y antes ya había colocado dineros a Nombre01 de [Nombre01 197] y, sobre todo, porque era él y no su esposa quien laboraba en el ICE y tenía contacto con la empresa [Nombre01 091]. En cuanto a la tercera entrega tenemos la misma situación. De folios 16.269 en adelante, el a quo dio las razones por las cuales considera un hecho demostrado que el justiciable recibió los últimos certificados de inversión que allí se indican (a saber, los Nº Identificacion12 Nº Identificacion13 Nº Identificacion14 y Nº Identificacion15 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 intereses para un total de $100.08 (hecho demostrado número 199). Tratándose de este traslado de fondos, el defensor público centra su disconformidad en el certificado número Identificacion12 indicando que no se tuvo por demostrado a través de un examen pericial, que la firma que consta en el endoso sea la de su patrocinado. De esta manera, optó por dejar de lado toda una serie de probanzas que fueron bastanteadas por el a quo de forma integral, las que, sin contar con la prueba que echa de menos, permiten afirmar lo anterior. Además del certificado de inversión original y sus cupones de intereses, que en el reverso muestran un endoso donde se lee claramente el Nombre01 de [Nombre01 006] y su número de cédula (prueba CED02.5), el tribunal de juicio también consideró la pericia N° 068-DEF y la prueba N° 611, de las que se extrae que [Nombre01 006] fue quien entregó dicho certificado al Puesto de Bolsa del BCT Valores S. A., con cupones de interés por $24.89 y efectivo por $1.200,00 para una inversión que fue liquidada el 29 de mayo de 2003 con el cheque Nº 371-9 por $11.353,86 girado a Nombre01 de [Nombre01 197], el cual a su vez, fue depositado en la cuenta Nº [Valor 057] de la beneficiaria en el Banco Popular. Esto también se confirmó con la prueba bancaria suministrada por BCT Valores Puesto de Bolsa S.A. (N° 349), donde consta que se recibió de [Nombre01 006] dinero efectivo por $1.200,00, el certificado de inversión Nº Identificacion12 y cupones de interés por $24,89, sumas que fueron invertidas en el fondo liquidez dólares, constando también que la citada inversión fue cancelada el 29 de mayo de 2003, girándose el cheque Nº 371 a favor de [Nombre01 197], por $11.353,86. Además de esto, se cuenta con la copia del cheque y en cuyo reverso se lee claramente el Nombre01 [Nombre01 197] y el número de cédula de [Nombre 197], un número de cuenta (la [Valor 036]) y el sello de caja del Banco Popular con fecha 29 de mayo de 2003. Dicha cuenta resultó ser una cuenta corriente que le pertenece a [Nombre01 197] y que fue abierta en el Banco Popular. Son indicios contundentes y categóricos, que confluyen en una conclusión unívoca: [Nombre01 006] recibió los certificados de inversión al portador originados en [Nombre01 058]. y alimentados por [Nombre01 060], conclusión que no se modifica ni un ápice solo porque no existe un estudio grafoscópico en cuanto a las firmas de los endosos en uno de esos certificados. Se reitera, este fue emitido en las mismas condiciones de los demás, todos tienen un mismo origen y era [Nombre01 006] y no su esposa quien trabajaba en ICE y tenía contacto, por su oficio, con los jerarcas del [Nombre01 091]. Aunado a esto, el papel protagónico de la señora [Nombre01 197] y la ausencia del examen pericial mencionado en cuanto al endoso, tampoco introduce duda alguna en cuanto a lo sucedido, ya que el certificado de inversión número Identificacion12 al igual que todos los demás recibidos en esta oportunidad, fueron entregados directamente a [Nombre01 197] o ingresaron a su patrimonio de otras maneras. Como ya se dijo, [Nombre01 006] entregó el certificado Identificacion12 junto con el cupón de intereses [agregando efectivo de su peculio por un total de mil doscientos dólares ($1.200)] al BCT Valores, con el objetivo de realizar una inversión en el fondo de liquidez en dólares, administrado por el BCT Sociedad Fondos de Inversión S.A. Esta inversión fue finalmente liquidada el 29 de mayo de 2003, con el cheque Nº 371-9 por once mil trescientos cincuenta y tres dólares con ochenta y seis centavos ($11.353.86) que fue girado a favor de la esposa del imputado [Nombre01 006] y fue depositado en la cuenta Nº [Valor 057] de la beneficiaria [Nombre01 197] en el Banco Popular y de Desarrollo Comunal. El certificado Nº Identificacion14 lo entregó junto con el cupón de interés por $25.02, a su esposa [Nombre01 197], quien procedió a endosarlo y depositarlo a la cuenta corriente [Valor 035] en el Banco Popular y de Desarrollo Comunal. Finalmente, los certificados Nº Identificacion13 y Nº2240020056299, [Nombre01 006] también los entregó -junto con los respectivos cupones de intereses- a su esposa, quien los dio a la señora [Nombre01 199] con el objetivo de cancelar la decoración de la casa de habitación de la pareja y los cupones los depositó en la cuenta a su Nombre01 del Banco Popular y de Desarrollo Comunal (hecho probado número 199). En resumen, si bien hablamos de transacciones en las que formalmente no figura [Nombre 006], es evidente que se trata de ventajas de contenido económico por él aceptadas, no por su esposa. Se reitera, quien tenía relación con el ICE y con [Nombre01 091] era [Nombre01 006] y no [Nombre01 197], siendo que además, al menos en lo que a estos hechos respecta, no es novedoso que los fondos ilícitos acabasen en las cuentas bancarias de la esposa del imputado, o a su disposición. Finalmente, en cuanto a los certificados de inversión que [Nombre01 199] endosó y depositó en su cuenta, además de abundante documentación se contó con el testimonio de esta persona, quien de forma categórica indicó que los recibió de [Nombre01 197] , como pago por los servicios de decoración de una casa de habitación que la pareja (entiéndase, [Nombre01 006] y [Nombre01 197]) construyeron en Turrialba. En resumen, es evidente que la sentencia está ampliamente fundamentada. No solo porque abarca todas las probanzas, sino porque deriva de estas, con apego a las reglas del correcto entendimiento humano, que [Nombre01 006] aceptó la dádiva que le fue entregada por [Nombre01 041] y el mismo [Nombre02 028], retribución que se tuvo por demostrado y la Sala Tercera calificó como una sola en tres tractos. Este tribunal, que se aparta de la discusión sobre si fue una dádiva en tres tractos, o bien, tres dádivas presentadas y admitidas, pues dicho tema fue zanjado y definido en casación, de modo que no se tiene competencia para abordarlo), no alberga ninguna duda acerca de la recepción por parte del justiciable de dichos fondos. No solo se demostró que los certificados de inversión fueron generados con el dinero proveniente de [Nombre01 060] que entró a la cuenta de [Nombre01 058] ., sino también que llegaron a manos de [Nombre01 006] y este procedió a disponer de los mismos. En algunos casos, directamente, v.g., al comprar un vehículo, o al invertir en BCT Valores Puesto de Bolsa S.A., en otros, a través de su esposa, que fue quien dispuso de los activos, sea depositándolos en sus cuentas, o pagando por otros servicios contratados por la pareja a terceras personas (así, a [Nombre01 199]). Pero en cualquier caso, se descarta la tesis de defensa en el sentido de que terceros son los que disponen de los certificados de inversión y que, por ende, no hay vínculo alguno entre estos y el imputado. Por lo expuesto, el reclamo debe desestimarse.

XVII.- Quinto motivo por la forma. 4) El Tribunal concluyó que [Nombre01 006] firmó un certificado de unicidad, sin que exista incorporado el documento que permita derivar tal afirmación. Según el fallo recurrido, el imputado [Nombre01 006] firmó un certificado de unicidad. Para el tribunal, aún y cuando la última palabra la tenía el consejo directivo, lo cierto es que la certificación de unicidad tenía mucha relevancia, pues se basaba en criterios técnicos especializados, siendo que, además, existía confianza en el trabajo que [Nombre01 006] realizaba, tal y como lo afirmó [Nombre01 153], jefe directo de este. Para el quejoso tales aseveraciones son cuestionables, pues no hay documento alguno que permita su demostración. Arguye que el punto es básico, ya que quien firmaba los certificados era [Nombre01 153], con lo cual su testimonio bien podría ser hasta sospechoso. En ese tanto, no se podría usar su dicho para concluir que [Nombre01 006] firmó ese documento.

XVIII.- El reclamo no puede prosperar. Contrario a lo que plantea el defensor, el tribunal de mérito bastanteó abundante prueba para afirmar lo antes expuesto, no dándose el vicio que se reprocha. Según se extrae del folio 16.273 en adelante, [Nombre01 006] era jefe del Departamento de Conmutación del ICE. Como tal tenía entre otras muchas funciones, la de determinar las necesidades que se debían satisfacer en materia de conmutación. Tenía un equipo de técnicos bajo su mando, que determinaba las necesidades de equipamiento y con base en esto se hacía un documento que, según [Nombre01 156] , se convertía en un requerimiento, correspondiéndole a [Nombre01 006] firmar la certificación de la necesidad del proveedor. Posteriormente, llevaba la recomendación de adjudicación al seno del Consejo Directivo del ICE para que este resolviera en definitiva si convocaba o no al concurso. Es por esto que, según el a quo, la certificación de unicidad que firmaba este imputado tenía relevancia, ya que se basaba en criterios técnicos especializados, siendo que además, según señaló [Nombre01 153], existía confianza en su trabajo. Añade el fallo que [Nombre01 006] también era el encargado de montar equipos, realizar contratos y evaluar el desempeño, por lo que era un funcionario clave dentro del procedimiento de las adjudicaciones, tanto a lo interno del ICE como para las empresas que pretendiesen participar. Hubo varias contrataciones directas que le fueron asignadas a [Nombre01 091] y en las cuales este justiciable tuvo participación, de especial interés la Nº 112765, para ampliación de las centrales [Nombre01 091] y que fue adjudicada a esa empresa en sesión Nº 5404 del 14 de mayo de 2002, siendo [Nombre01 006] el administrador de ese contrato, por un monto de $109.457.401,22. Para el voto de mayoría, es a partir de la certificación de unicidad que los corruptores presentaron a [Nombre01 006] una dádiva y el defensor público reclama que dicha certificación nunca se incorporó al proceso y que por tanto, no hay documento alguno que permita demostrar lo señalado, siendo que además [Nombre01 153], por firmar las citadas certificaciones, debió ser considerado un testigo sospechoso, en cuyo relato no podía basarse el a quo para concluir que [Nombre01 006] suscribió la citada certificación. Para esta cámara, como ya se adelantó al iniciar este considerando, las apreciaciones del impugnante son erróneas. En primer lugar, en la sentencia se citó prueba documental de la que se extrae el papel que tuvo [Nombre01 006] en la contratación directa Nº 112765. Hablamos de la prueba Nº 740, consistente en el informe GESE 1530, 6053-34633-2005, del 11 de julio de 2005, del Área de Apoyo, Gestión de Seguridad, en lo referido al citado convenio. Con base en la documentación relacionada con esta contratación, se elaboró este informe que en lo que interesa, indica: “Al observar que los documentos de “Certificación de Unicidad de Proveedor y Justificación Técnica del Proyecto de Adquisición de Equipos y Servicios para ampliación de las centrales [Nombre 091] 1000 E10 para el período 2002-2003”, fueron suscritos por el Ing. [Nombre01 006] como [...], se le consultó al Ing. [Nombre02 153], quien se desempeñó como Director de la UENDEP para los días de las firmas de los mencionados documentos, si el Ing. [Nombre01 006] contaba con su autorización para que firmara en esa condición. Al respecto el Ing. [Nombre01 033] manifestó que él pensaba que al ser el Ing. [Nombre01 006] el administrador del contrato podía firmar la fórmula de autenticidad. Además afirmó que debido a una salida del país, con motivo de sus funciones, dejó como encargado al Ing. [Nombre01 006] , de la [...]” (Nombre67. 3.632 y 3.633 frente, tomo IX, que hemos tenido a la vista). Esta prueba fue analizada en la sentencia, concluyéndose que contrario a lo que estimaba la defensa de [Nombre01 006], la misma era legítima, al menos en el acápite que tiene que ver con el citado contrato y que por ende es útil para establecer “…cuáles fueron los documentos recabados, el desarrollo que tuvo esta contratación en las diferentes dependencias del ICE y la acción de coordinación ejercida por el Proceso de Conmutación, con el suministro de diferentes datos relacionados con cada una de esas acciones y los documentos que fueron suscritos por el imputado [Nombre01 006], quien fungía como [...].” (f. 15.264 frente, tomo XXXI). De igual forma, a folio 16.258 frente del tomo XXXIV, se hizo referencia al contrato relativo a la contratación Nº 112765, visible en el anexo 10 de la prueba documental Nº 598 (Informe 297-DEF-540-04/05) y que se relaciona con la ampliación de las centrales [Nombre 091] 100 E 10 B. Según verificó esta cámara con el examen de la citada documentación, en la cláusula décimo novena consta el nombramiento que hizo el ICE del ingeniero [Nombre02 006] como administrador general del contrato, con la obligación de “…supervisar este contrato, coordinar todo lo relativo a la correcta ejecución del mismo, y velar por el perfecto cumplimiento de todas y cada una de las obligaciones indicadas en su clausulado, Nombre02 como gestionar y facilitar la coordinación de todos los aspectos técnicos y administrativos que se requieran…” (p. 24 del contrato, visible en el anexo 10 del informe Nº 297-DEF-540-04/05, legajo Nº 2, prueba Nº 598). Por tanto, no es cierto, como lo reclama la defensa, que la intervención de [Nombre01 006] se derivó en exclusiva del dicho de [Nombre01 153] , persona que, en todo caso, rindió una declaración que muy poco añade a lo antes expuesto. Este testigo indicó que [Nombre01 006], para entonces coordinador del área de conmutación, tenía a su cargo determinar las necesidades presentes en esa área; que ambos solían reunirse con proveedores; que el imputado y su grupo coordinaba lo referente a licitaciones y estudios de ofertas; que fue él (entiéndase, [Nombre01 153]) quien como jefe nombró a [Nombre01 006] coordinador del proyecto; que si salía del país dejaba a algún funcionario a cargo, por ejemplo, al imputado y que este estaba a cargo de los técnicos (f. 14.807 a 14.811 frente, tomo XXX). Ahora, si bien es cierto que del informe GESE 1530, 6053-34633-2005 (prueba N° 740, visible al tomo IX y en particular, los folios 3.631y 3.632 frente), se extrae que algunos documentos relacionados con la contratación referida fueron suscritos de forma conjunta por [Nombre01 153] y [Nombre01 006], esto no cambia el hecho de que fue el justiciable quien suscribió tanto la certificación de unicidad de proveedor, Nombre02 como la justificación técnica del proyecto y la recomendación de adjudicación (de hecho, los dos primeros documentos fueron firmados solo por [Nombre01 006] y el último en conjunto con [Nombre01 153]). Es importante agregar que para demostrar que [Nombre01 006] suscribió la mencionada certificación no se requiere contar con el documento original, tal y como parece entenderlo el recurrente, pues en nuestro ordenamiento jurídico rige el principio de libertad probatoria, según el cual cualquier circunstancia o hecho de interés para la solución del caso se puede probar por cualquier medio de prueba permitido. En este asunto, el a quo no solo contó con documentación confiable que arroja esa conclusión (a saber, el citado informe, mismo que fue elaborado según se indica a folio 3.630 frente del tomo IX con base en el expediente localizado en la Proveeduría del ICE), sino también con el dicho de [Nombre01 153] que en términos generales confirma lo allí expuesto. De igual manera, se contó con otros elementos probatorios que permiten entender que la dádiva que recibió [Nombre01 006] respondía a su papel en la institución, nos referimos al hecho, por demás innegable, de que los dineros procedían de [Nombre02 060], empresa proveedora del ICE que además fue la beneficiaria en la contratación que se ha venido citando y al hecho de que [Nombre01 006] no tenía vínculos laborales o contractuales con [Nombre01 091], de ahí que no exista motivo legítimo alguno para que haya recibido esos dineros. Si bien es cierto que no imputó ni demostró que dicha ventaja económica fue admitida considerando determinados propósitos (lo que es propio de determinados tipos penales, como lo son los cohechos, la aceptación de dádivas por un acto cumplido, la corrupción agravada, etcétera), quedó probado que admitió los fondos que le fueron presentados en consideración a su oficio y durante el desempeño de este, lo que basta para que se configure el enriquecimiento ilícito. Finalmente, es importante añadir que aunque se admita la posibilidad de que [Nombre01 153] haya tenido algún papel en estos hechos (se subraya el carácter hipotético de la afirmación), pues a diferencia de [Nombre01 006], a [Nombre01 153] no se le imputó haber recibido dinero de [Nombre01 060], esto no excluye la comisión del delito por parte del aquí encartado. Por todo lo expuesto, se declara sin lugar el reproche.

XIX.- Quinto motivo por la forma. 5) Comiso del vehículo marca Nombre04 Grand Vitara XL, placa . [Valor 040]. El tribunal no fundamentó por qué comisó este automóvil, lo que constituye un vicio en el fallo. En cuanto al agravio causado con este vicio, el quejoso señala que: “…al no brindar las razones jurídicas no puede compartirse que se afecte el patrimonio, sin fundamento alguno, un fundamento permitiría llegar a una conclusión distinta, pues la compra del vehículo no puede relacionarse con el delito que se acusa a [Nombre01 006]…”. (F. 17.145 frente).

XX.- El motivo debe rechazarse. Aunque en efecto, el tribunal ordenó la incautación del vehículo marca Nombre04 Grand Vitara XL, placa ° [Valor 010], indicando solamente que se demostró que es producto del delito, “pues fue adquirido con las dádivas que recibió el imputado” (folio 16.285 frente, tomo XXXIV), esto no significa que la citada decisión carezca de fundamentación, ya que en otros acápites del fallo, específicamente de folios 16.261 a 16.264 frente del tomo XXXIV, se explicó extensamente por qué se concluyó que el automotor es un provecho derivado del delito cometido. Según se desprende de esos folios, el a quo ponderó una cantidad importante de prueba pericial y documental de la que se extrae con absoluta certeza que el vehículo fue comprado por el imputado [Nombre01 006] con tres certificados de inversión al portador cuyos fondos provienen de [Nombre01 060] y que se le hicieron llegar a través de [Nombre01 058]. De hecho, fue [Nombre01 006] quien entregó los tres certificados de inversión, Nombre02 como sus cupones de intereses (que sumados daban un total de $30.109,77), a la empresa Nombre74 para adquirir el vehículo a su nombre: “De acuerdo con el Informe Pericial 438-DEF, prueba documental Nº 610, apartado 4.3, folio 6 y siguientes, del análisis de la cuenta corriente Nº [Valor 012] de [Nombre01 058] . en el Cuscatán International Bank, el seis de diciembre de 2001 dicha cuenta mostraba un saldo de $1.055,37 y fue fondeada el 7 de diciembre de 2001 con una transferencia por $800.000,00, proveniente de la empresa [Nombre 060]., la que dio contenido al cheque Nº 301 por $755.123,00 girado el 10 de diciembre de 2001 y utilizado en la compra de varios certificados de inversión, emitidos por el Banco Cuscatlán de Costa Rica S. A., entre ellos los números Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 todos emitidos al portador por un monto de $10.000,00, con fecha de vencimiento 11 de enero de 2002 y cupón de intereses por $36.59. La transferencia realizada por [Nombre01 060] a [Nombre 058]. el 7 de diciembre de 2001, por $800.000,00 y el saldo que había en la cuenta de [Nombre01 058] . para esa fecha, es un tema que ya fue analizado cuando se hizo referencia todas las transferencias realizadas por [Nombre01 060] a [Nombre01 058]., a lo cual nos remitimos. Bastando para el presente análisis, con citar el estado de cuenta de folio 57 de la prueba documental Nº 106, que corresponde a la cuenta corriente Nº [Valor 012] de [Nombre 058] ., en el Cuscatlán International Bank y que refleja el crédito por los $800.000,00 producto de transferencia de fondos a que se hace referencia en el hecho anterior, como el débito por $755.000,00 por emisión del cheque Nº 301. Dicha prueba fue secuestrada en las oficinas centrales del Banco Cuscatlán previa solicitud y orden de levantamiento de secreto bancario (pruebas documentales números 90, 91, 105 y 106). Según la prueba documental Nº 132, con los fondos provenientes del cheque Nº 301, en total $150.000,00, se realizó la apertura de una inversión múltiple de la número 224-002-003717-0 a la número 224-002-003731-6 y entre los cuales, por lo tanto, se encuentran los certificados de inversión números Identificacion16 Identificacion06 Identificacion17 Identificacion07 y Identificacion08 todos emitidos al portador por un monto de $10.000,00, con fecha de vencimiento 11 de enero de 2002 y cupón de intereses por $36.59. (cf. Esquema de los certificados adquiridos de folio 1, documento de la apertura de la inversión de folio2, donde se señala que los fondos invertidos provienen del cheque Nº 301 y además las características de los títulos emitidos y su secuencia numérica, fotocopia del cheque 301 de folio 3 y los 15 certificados originales entre los que se encuentran los arriba citados, con sus respectivos cupones de intereses por $36,59 cada uno). La prueba documental Nº 132 fue decomisada en las oficinas Centrales del Banco Cuscatlán, previa solicitud y orden de levantamiento de secreto bancario (cfr. pruebas documentales números 90, 91, 113 y 132). Indica la acusación, que entre el 10 de diciembre de 2001 y el 10 de enero de 2002, los certificados de inversión números CED03 CED06 CED04 Identificacion07 y Identificacion08 fueron presentados al imputado [Nombre01 006] por [Nombre 041] y [Nombre02 078], siendo aceptados por el imputado [Nombre01 006] quien endosó y entregó a la agencia Nombre74 para la compara de un vehículo, los tres primeros. Si se observan los certificados originales referidos, que constan a folios 4, 6 y 8 de la prueba documental Nº 132, se determina que los mismos no presentan ningún endoso del coimputado [Nombre01 006] sino únicamente una leyenda que dice: “Únicamente para depositar en la cuenta Nº [Valor 037] de Vetrasa” y un sello de caja con fecha 15 de enero de 2002 del Banco Interfin, lo mismo sucede con los cupones de intereses relacionados con esos certificados (folios 5, 7 y 9 de la misma prueba). Los únicos certificados que presentan un endoso de [Nombre01 006] y su respectivo número de cédula, son los números CED04 y CED05, visibles a folios 10 y 12 de la prueba documental Nº 132, endoso que igualmente aparece en los respectivos cupones de intereses y sello de caja en todos los documentos con fecha 11 de enero de 2002. Se desprende del Informe Pericial 438-DEF (folio 7), que a partir de la documentación aportada por Nombre74 se puede determinar que los certificados citados, relacionados con dicha agencia de venta de vehículos se determina que fueron recibidos por [Nombre01 006] y se utilizaron para la adquisición del vehículo marca Suzuki, placa [Valor ] . Lo anterior efectivamente se comprueba a partir del análisis de la prueba documental Nº 368, localizable a folios 6769 a 6775 del Tomo XVI del legajo de investigación y folios 1920 a 1939 del Tomo VI del legajo de investigación. En dicha prueba se encuentra la constancia suscrita por Nombre76, contador de Nombre74 S. A., con fecha 4 de marzo de 2005, quien hace constar que en las oficinas de dicha empresa está el expediente del vehículo placa [], Nombre04 que adquiriera el señor [Nombre01 006], cédula de identidad número [Valor 038], expediente en el que se localizan la factura original, copia de los certificados mediante los cuales canceló el vehículo y copia de recibo de los certificados. También se aportó una fotocopia de recibo de dinero expedido por Vetrasa, por $30.109,77, a Nombre01 de [Nombre01 006] y con fecha 15 de enero de 2001; una fotocopia de documento con fecha 4 de enero de 2002, donde Nombre74 hace constar que ha recibido de [Nombre01 006] para su custodia hasta la fecha de vencimiento, los certificados números CED06, CED05, 224-002-003718-9 por $10.000,00 cada uno y tres cupones de intereses por $36,59 cada uno, todo lo cual sumado da un total de $30.109,77; una fotocopia de factura de Nombre74 con fecha 10 de enero de 2002 en relación con la venta del vehículo Grand Vitara XL, año 2002, color azul, motor H27A105387, chasis Nº , figurando como comprador [Nombre02 006] y por un precio de $31.000,00, siendo las características apuntadas las descritas en la acusación en relación con el vehículo adquirido por el imputado [Nombre01 006] . Finalmente también se cuenta con una fotocopia de la escritura pública Nº 233 confeccionada por el Notario Mario Antonio Morelli Astúa en la que se realiza el traspado del citado vehículo por parte de Nombre74 a [Nombre01 006] , el cual finalmente se inscribió a su Nombre01 tal y como consta en fotocopia de certificación del Registro Nacional que es parte de la prueba analizada. A partir de la prueba anterior, se puede concluir con plena certeza que efectivamente, entre el diez de diciembre de 2001 y el 10 de enero de 2002, [Nombre01 006] recibió los certificados de inversión números Identificacion16 Identificacion06 Identificacion17 y los entregó en la agencia Nombre74 con el propósito de adquirir a Nombre01 suyo el vehículo marca Suzuki, Grand Vitara XL, serie , chasis , motor H27A105387, modelo 2002, tal y como se describe en el hecho acusado Nº 204 ...”. Como se extrae del texto anterior, el vicio que se reprocha no existe, pues en la sentencia se plasma un análisis detallado de los elementos probatorios que permitieron al a quo vincular el automotor cuyo comiso se ordena, con el delito de enriquecimiento ilícito. Por lo expuesto, se rechaza el reclamo.

XXI.- Por economía procesal, esta cámara resolverá de forma conjunta el sexto motivo por la forma interpuesto por el licenciado Wilson Flores Fallas, y los puntos primero al sexto del único motivo planteado en el recurso interpuesto (de manera conjunta) por [Nombre01 001], [Nombre01 028], [Nombre01 041] y [Nombre01 018], a título personal. Sexto motivo por la forma del recurso de casación formulado por el licenciado Wilson Flores Fallas. Incorporación de prueba obtenida con lesión de derechos fundamentales. Reitera el licenciado Flores Fallas que la sentencia viola el principio de correlación entre acusación y sentencia, conforme los artículos 24 de la Constitución Política, 175, 176, 363 inciso b) y 369 inciso d) C.P.P. y 29 de la Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones. 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, señala el licenciado Flores Fallas que para prescindir de las formalidades legales establecidas como garantía a un derecho fundamental, no basta con el consentimiento del señor [Nombre01 158], representante legal de [Nombre01 215]. Al respecto, argumenta: “… En nuestro sistema jurídico, el derecho a la intimidad es un derecho fundamental, consagrado en los numerales 23 y 24 de la Constitución Política, y con reconocimiento en el Derecho Internacional de los Derechos Humanos (artículo 11 inciso 2 de la Convención Americana de Derechos Humanos, artículo 17 del Pacto Internacional de Derechos Civiles y Políticos). Siendo que el art. 24 Constitucional establece: “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. Su aplicación y control serán responsabilidad indelegable de la autoridad judicial. La ley fijará los casos en que los funcionarios competentes del Ministerio de Hacienda y de la Contraloría General de la República podrán revisar los libros de contabilidad y sus anexos para fines tributarios y para fiscalizar la correcta utilización de los fondos públicos. Una ley especial, aprobada por dos tercios del total de los Diputados, determinará cuáles otros órganos de la Administración Pública podrán revisar los documentos que esa ley señale en relación con el cumplimiento de sus competencias de regulación y vigilancia para conseguir fines públicos. Asimismo, indicará en qué casos procede esa revisión. No producirán efectos legales, la correspondencia que fuere sustraída ni la información obtenida como resultado de la intervención ilegal de cualquier comunicación.” Lo anterior permite, señalar que el artículo 24 Constitucional “le otorga reconocimiento constitucional al derecho a la intimidad representado por la inviolabilidad de los documentos privados y las comunicaciones escritas, orales o de cualquier otro tipo de los habitantes de la República; dispone la posibilidad de injerencias al derecho a la intimidad por parte de los Tribunales de Justicia, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a su conocimiento. Las injerencias deberán disponerse mediante resoluciones razonadas, cuya aplicación y control es exclusivo e indelegable por la autoridad judicial; el tipo de injerencia autorizado es el registro, secuestro y examen de documentos privados y la intervención de cualquier tipo de comunicación; delega en el legislador ordinario que mediante una ley aprobada y reformada por dos tercios de los diputados de la Asamblea, defina en qué casos, los Tribunales de Justicia podrán disponer las injerencias autorizadas al derecho a la intimidad y para que defina los delitos en relación a los cuales procede la intervención de las comunicaciones y por cuánto tiempo. Determina que la correspondencia sustraída y la información obtenida de intervenciones de comunicaciones ilegales no producen efectos legales.” Voto de minoría del cojuez Camacho Morales. Por lo que el consentimiento no es suficiente para prescindir del cumplimiento de las formalidades legales establecidas como garantía del derecho fundamental, tanto a nivel constitucional como legal y cuyo cumplimiento es ineludible en todo caso, por tratarse de formalidades que se constituyen en garantía de los derechos fundamentales, son de orden de público y no son disponibles por los particulares, en lo cual coincide la doctrina y la jurisprudencia constitucional. Por lo que 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 deslegitiman el sistema penal costarricense. Siendo que a partir de ese medio de prueba se obtiene un elemento de prueba se obtiene información que relaciona a [Nombre02 058] . con el Cuscatlán International Bank y de transferencias internacionales de [Nombre02 058] ., a favor de imputados en esta causa y de [Nombre01 060] a favor de [Nombre01 058]., por lo que la prueba que se derivó entre ella prueba contra [Nombre01 006], también resultaría ilícita, y Nombre02 se solicita sea declarado …” (folios 17.146 a 17.148 frente, tomo XXXVI, la transcripción es literal). En cuanto al agravio causado, afirma que la prueba que él califica de ilícita permitió obtener información que relaciona a [Nombre01 058]. con el Cuscatlán International Bank “… y de transferencias internacionales de [Nombre01 058]., a favor de imputados en esta causa y de [Nombre01 060] a favor de [Nombre02 058].” (F. 17.148 frente), por lo que la prueba que se derivó de ella contra [Nombre01 006] resultaría ilegal, de ahí que solicite la absolutoria a su favor. Recurso de casación interpuesto de manera conjunta por [Nombre02 001], [Nombre01 028], [Nombre01 041] y [Nombre01 018], a título personal. En escrito visible de folios 17.264 a 17.278 frente del tomo XXXVI, autenticado por el licenciado José Miguel Villalobos Umaña, los imputados [Nombre01 001], [Nombre01 028], [Nombre02 041] y [Nombre02 018], recurren la sentencia Nº 167-2011 citada reiteradamente, con base en los numerales 369, 458 siguientes y concordantes del Código Procesal Penal. Como único motivo de casación, reclaman la infracción del artículo 369 inciso j), “al dictarse la sentencia con violación al debido proceso, al fundamentarse sustancialmente las condenas en prueba ilícitamente obtenida e ilegalmente introducida al debate y por ende se violenta también el inciso c) al incorporarse ilegalmente un elemento probatorio al proceso”. Tras reclamar el quebranto al debido proceso y al derecho de defensa que consagran los numerales 39 y 41 de la Constitución Política y el artículo 8 de la Convención Americana de Derechos Humanos, Nombre02 como citar la resolución de la Sala Constitucional Nº 1739-92, de las 11:45 horas del 1° de julio de 1992, los impugnantes señalan que: “… la Sala señala de qué se trata la prueba ilegítima y su tratamiento formal y su valoración, para lo cual ella ha establecido que se le debe negar a esa prueba ilegítima TODO VALOR PROBATORIO EN SÍ, incluso refiriendo que sobre ello no parece haber discusión alguna y es menester SUPRIMIRLA DEL PROCESO, COMO SI NO HUBIERA EXISTIDO. Pero también se deben excluir todas aquellas que, sin ser ilegítimas per se, se hubiesen obtenido por medio de aquella. Se aplica también el principio de la supresión hipotética, en el sentido señalado de excluirla por completo y resolver el asunto como si no hubiera existido… No hay excepciones, no hay limitaciones, no hay resquicios constitucionales ni justificaciones ni excusas para su incumplimiento: la prueba ilegítimamente obtenida no solo no vale por sí sola, sino que tampoco es válida en su efecto reflejo y anula aquellas otras que deriven de ella, es decir, no se puede excusar que si bien no sea útil por sí misma, lo pueda ser recostada en otra diferente, por cuanto se permitiría con ello violar indirectamente lo que el Derecho prohíbe violar directamente. La incorporación de un medio de prueba de manera ilegítima al proceso es también un defecto de la sentencia que motiva o justifica el recurso de casación, al tenor del inciso b) del numeral 369 del CPP. Desde la vigencia del entonces inciso 3) del Artículo 400 del entonces Código de Procedimientos Penales la Sala Tercera había indicado que eso era un vicio grave que justificaba la nulidad de la sentencia, ratificando posiciones doctrinarias unánimes que Nombre02 lo determinaban y desarrollando el concepto de supresión hipotética que posteriormente señaló la Sala Constitucional. (Ver al respecto el voto de la Sala Tercera 047-92 de las 11:00 del 23 de enero de 1992). Lo interesante de esta posición constitucional con carácter vinculante es que se mantiene vigente a pesar del paso del tiempo y es reforzada constantemente a pesar del cambio de la integración de la Sala Constitucional. Uno de los votos más importantes es el 2529-94 que desarrolló la doctrina de la fuente independiente, a la cual volveremos más adelante, que establece que la prueba espuria o ilegítima puede valorarse sí y solo sí TAMBIÉN SE ORIGINA EN OTRO ELEMENTO AUTÓNOMO RECABADO DURANTE LA INVESTIGACIÓN Y ANTERIOR A LA VIOLACIÓN CONSTITUCIONAL …” (F. 17.265 frente). Para los recurrentes, es importante aludir al derecho general a la legalidad, siendo que en materia procesal penal, “las violaciones a la mera legalidad se convierten por virtud del principio anterior en violaciones al debido proceso, de rango constitucional, para Nombre02 tener plena garantía de eficacia material y formal su dictado…” (F. 17.266 frente). Tras citar los artículos 180 a 184 del Código Procesal Penal, mismos que relacionan con el artículo 11 de la Constitución Política, afirman que no solo los jueces y fiscales deben respetar las leyes en cuanto a la obtención, incorporación y valoración de la prueba, sino que además los medios de prueba no tienen valor alguno si no se han obtenido por un medio lícito: “Es claro el legislador, tanto ordinario como constitucional, que la validez de la prueba debe ser doble: tanto en la forma como se obtiene como en el mecanismo por el cual se incorpore al proceso. Y ello es necesario recalcarlo frente a absurdas y traidoras tesis proclives a rendir pleitesía a la dictadura y al totalitarismo investigador, que proponen que una incorporación válida legitima a la prueba ilícitamente obtenida… las Juezas de mayoría se decantan por esta fascistoide posición, contraria a nuestras tradiciones democráticas y a la sana hermenéutica jurídica y solo posible en la (in) justicia del cadí o de las cadís. Si la prueba se obtuvo ilegalmente, de nada vale incorporarla válidamente, ya que ha dañado al Derecho, a la ética judicial, a los imputados y a la Constitución que se jura cumplir...” (f. 17.266 frente). Dicho esto, argumentan que la condena se apoyó en prueba ilegítimamente obtenida, que no puede ser saneada ni corregida, sustituida o avalada por otra prueba autónoma, anterior o independiente, siendo que tampoco se está ante las excepciones que contempla la jurisprudencia, algunas cuestionables desde la óptica constitucional. A continuación, precisan cada uno de esos elementos probatorios cuya obtención e incorporación al proceso cuestionan. Primero. Prueba 588, que contiene la información bancaria de Panamá de las cuentas de la Sociedad [Nombre01 215]. “… En este punto nos dedicaremos al inicio a demostrar que la evidencia numerada como 588 se obtiene en forma aviesamente ilegal, que lo sabían las Fiscalas y las Juezas y que, a pesar de ello y de reconocer su ilegalidad y resolver un caso similar en forma diferente, en el presente caso procedieron a validar dicha ilegalidad. Las propias Juezas resumen claramente la argumentación de la defensa de [Nombre01 018] al Folio 890, en cuanto a lo que en Folio 892 denominan como una solicitud de declaratoria de ILICITUD PRIMIGENIA QUE PROVOCARÍA LA EXCLUSIÓN DE TODA LA PRUEBA DEPENDIENTE DE ELLA. La prueba 588 es una copia certificada de la Asistencia Judicial de la República de Panamá enviada mediante notas del 6 de septiembre del 2004 desde ese país y por la Procuraduría General a la Fiscalía el 10 del mismo mes, como se reconoce expresamente al Folio 8335 de los autos. Se trae una copia certificada de un expediente judicial diferente, lo que por sí solo no cuestionaremos en este recurso, porque ese tema se discute en otro. El punto acá es determinar si esa Asistencia Judicial, como material probatorio, se obtuvo válidamente o no, para efectos de su valoración en esta causa. Esa discusión se la plantean las Juezas de mayoría a partir del Folio 889 al 952 de la sentencia, debiendo reconocer que se dedicaron con esfuerzo encomiable a pretender demostrar el error de la defensa técnica de [Nombre01 018] que cuestionó esa obtención e incorporación, pero como se dijo antes, no Nombre11 el esfuerzo genera resultados y consecuencias correctas. Al Folio 889 se resume el criterio de la defensa de [Nombre01 018]: esa prueba es nula al haberse obtenido la información bancaria en Panamá sin orden de Juez nacional en Costa Rica que levantara el secreto bancario. En este tema los zigzagueos de las Juezas son de antología: Al final del Folio 893 se atreven a indicar que la determinación de si dicha documentación se obtuvo sin orden de Juez es ajena a sus competencias y que ellas no pueden ni deben imponerse de ese material probatorio ni de las circunstancias de su recolección y la valoración de su licitud o ilicitud. Y decimos que ello es de antología 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. Ya conocen las Juezas que la prueba bancaria de Panamá se obtuvo sin orden de Juez nacional, pero se negaron en ese momento a resolver una solicitud expresa de la defensa de [Nombre01 018] para excluir la prueba 588 y dejaron pendiente este asunto para la sentencia, Nombre02 que no se trata de una petición ni tardía ni contraria a los principios que se señalan al Folio 894. Pero tal tesis de las Juezas pierde importancia cuando ellas mismas aceptan que ASUMEN QUE ESA PRUEBA 588 SE RECABÓ SIN ORDEN JUDICIAL QUE LEVANTARA LA PRIVACIDAD DE LOS DATOS. (Ver Folio 894, línea 2 y siguientes). Así, ante la silenciosa admisión de tal elemento por la Fiscalía, lo propio entonces, sin más preámbulo y sin necesidad de continuar en esta línea, es estimar que esa prueba bancaria de Panamá se obtuvo ilegítimamente al no contar con orden judicial …” (f. 17.267 y 17.268 frente). Segundo. Información bancaria de Panamá que deriva de la prueba 588 y que contiene, por primera vez en las investigaciones, la referencia a la Sociedad [Nombre 058]., sin que exista prueba alguna, independiente y anterior, al respecto. Con ocasión del levantamiento ilegal del secreto bancario de las cuentas de la sociedad [Nombre01 215], se obtiene información sobre movimientos financieros de parte de una empresa a la fecha desconocida en la causa. Los impugnantes recuerdan que la prueba 588 es copia certificada “de la asistencia judicial que proviene en la causa CAJA-FISCHEL”, misma que se tramitó en expediente separado, “por lo que lo propio es concluir fácilmente que su revisión y lectura se hizo para ubicar información para esa otra causa”. Agregan que del Informe Pericial 428-DEF-443-05-05 del Organismo de Investigación Judicial, prueba Nº 618, se extrae cuál es la información venida de Panamá que contienen información sobre transferencias de una empresa denominada [Nombre 058], ajena a la causa CCSS-Fischel, hacia la empresa [Nombre01 215], que sí se investigaba en aquella. Es Nombre02 como el Ministerio Público conoce de la empresa [Nombre 058]. Es decir, a partir de la prueba venida de Panamá de forma espuria, como ya se dijo en el acápite anterior. La información ilegal, añaden, llega a Costa Rica a inicios de septiembre de 2004 y se recibe en la fiscalía el 10 de septiembre de 2004, a las 14:00 horas, según consta al folio 895 de la sentencia. Se solicitó la información sobre [Nombre01 215], no sobre [Nombre02 058] y a partir del 10 de septiembre la fiscalía se enteró de la existencia de esta sociedad y sobre ella inició una investigación. Antes del 10 de setiembre no existe referencia alguna a [Nombre01 058] , por lo que la investigación del caso Nombre64 091] comenzó con la información obtenida a partir de la prueba 588 de Panamá, la que es nula por haber sido obtenida sin orden de juez competente y que por tanto, debe ser excluida, Nombre02 como todo elemento que derive de ella. Los impugnantes dicen que las sospechas sobre la empresa [Nombre01 058] no se apoyan en prueba independiente y autónoma de la antes dicha, que permita sanear la ilegalidad de esa información obtenida de la prueba 588. Según el tribunal de juicio, sí las hay, a saber, fuentes periodísticas: la evidencia 592.9 denominada MONITOREO DE PRENSA ESCRITA DEL 9 AL 31 DE DICIEMBRE DE 2004, en referencia a publicaciones del 21 y 27 de abril de ese año. Sin embargo, estas no hacen referencia alguna al tema en discusión. De esas notas no se desprende la existencia de una empresa llamada [Nombre 058]. Tan solo hay referencias a una [...] Nombre25 a [Nombre 018]. 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 Taiwán y la segunda hace referencia a “elementos periodísticos” de abril de 2004, sin mención a [Nombre01 058] . Tampoco la publicación citada en el folio 936 da la información que refieren las juezas. En esa nota del 28 de setiembre, no se alude a [Nombre01 058]. Además, para esa fecha ya había llegado la información bancaria ilegalmente obtenida en Panamá, por lo que esta prueba no es anterior, ni tampoco autónoma, pues en virtud de la ilegal evidencia bancaria se había pedido información de las cuentas de [Nombre01 058] dentro y fuera del país, por lo que es evidente que la prensa había recibido información “derivada” para “contribuir solícitamente con la investigación”. Añaden los quejosos que la entrevista con el señor [Nombre01 213] del 27 de septiembre no es anterior a la ilegal evidencia venida de Panamá. Según el fallo recurrido, fueron los datos bancarios los que provocaron nuevos derroteros en la investigación. Es decir, el a quo reconoce que fue la prueba ilegal la que generó la obtención de la prueba posterior. Finalmente, si las juezas admiten que los reportajes son posteriores a la información bancaria recibida, aunque teóricamente bien pueden ser independientes, jamás podrán serán anteriores. Tercero. La actuación del señor [Nombre01 158], por escrito y verbalmente, no tiene la “magia” de suprimir la invalidez en la obtención de la prueba bancaria de Panamá. Según el tribunal de mérito, en caso de considerarse ilícita la prueba procedente de Panamá, su utilización en el proceso sería viable por haberlo autorizado Nombre02 el titular de la cuenta, señor [Nombre01 158]. Ante esto, los impugnantes reiteran que la prueba fue obtenida sin orden judicial e ingresó al país el 10 de septiembre de 2004. Con esta prueba se ordenaron levantamientos del secreto bancario de empresas como [Nombre02 058], se acusó a los imputados y se solicitaron medidas cautelares. Y es hasta el 17 de mayo de 2010, que el señor [Nombre01 158] pretende autorizar la obtención y uso de la información disponible sobre la cuenta bancaria correspondiente a la empresa [Nombre 215], según refieren las juzgadoras al folio 896 y consta en la prueba 759, a folio 13.449 de los autos. Sobre esta autorización, afirman los imputados que lo que se pretende es dar “efecto retroactivo a una violación constitucional ”. Añaden que tal autorización no permite legalizar el acceso que tiempo atrás se hizo de las cuentas sin orden de juez: “… Lo que se pretende es que retroactivamente, como si se pudiera trasladar en el tiempo, se ubicara ANTES de septiembre de 2004, casi seis años antes y diera el aval para abrir las cuentas sin orden de Juez y ANTES DE QUE SE ABRIERAN. Como si nada hubiera pasado. Pura alquimia jurídica. Y al final de la nota el asunto se pone mejor: dice que consiente y autoriza el uso y utilización, va de nuevo, que se haya hecho en el pasado de esos documentos, es decir, pretende borrar todo lo ilegal como si no hubiera ocurrido y como si él fuera el único afectado. INCREÍBLE. La propia carta es un reconocimiento a la actuación ilegal de Jueces y Fiscales, ya que de estar seguros de su licitud, jamás habrían redactado semejante trabalenguas jurídico. Entendamos correctamente el cronograma: la evidencia se obtiene ilegalmente, se utiliza para conocer la existencia de la empresa [Nombre01 058], por ella y no por fuentes anteriores e independientes se accesa la información bancaria de [Nombre01 058] y se determina la participación eventual de [Nombre01 091] y los demás imputados, se detiene a algunos de ellos, se les acusa y se les enjuicia y, sin sonrojo alguno, casi seis años después se pretende sanear todo lo actuado con la declaración escrita de [Nombre01 158] , que luego reitera verbalmente ante el Tribunal en agosto del 2010, casi SEIS AÑOS DESPUÉS DE LA VIOLACIÓN CONSTITUCIONAL. En primer lugar, las Juezas al folio 898 pretenden elaborar una absurda tesis, consistente en separar el momento de la obtención de la prueba ilegal del de su incorporación, señalando que si bien puede ser ilícitamente obtenida aquella, su validez se analiza y valora cuando se incorpora a los autos. Tal posición fue ya cuestionada y criticada en líneas anteriores: tanto el voto 1739-92 como la normativa procesal penal, de rango constitucional al tenor de ese voto, señalan claramente que los elementos de prueba solo tienen valor si se han OBTENIDO POR UN MEDIO LÍCITO. El proceso de incorporación es posterior, pero su obtención de manera ilegal contamina la evidencia e impide su utilización en contra del imputado, no solo del presunto titular del derecho afectado, lo que será analizado más adelante. Así, el hecho de que se pueda incorporar según las Juezas válidamente al proceso la prueba no le suprime su obtención ilegal, mediante el levantamiento del secreto bancario sin orden de Juez competente. Nombre02 que afirmar sin sonrojo que los documentos derivados de la prueba 588 no eran tales sino hasta el momento en que se incorporan al debate no es más que una burla triste al sistema jurídico y a las resoluciones de la Sala Constitucional y al Estado de derecho. Con esa prueba, que de no ser tal no se habría celebrado el juicio, se procesó a todos los imputados, se les privó de su libertad, se les acusó y se les condenó. De no haber existido, como legalmente no existe, ni siquiera se habría pasado de la audiencia preliminar y si la Fiscalía respetara el Derecho habría desistido del caso desde el principio, pero su terquedad en hacer las cosas como se quería y no como se debía contaminó toda la evidencia derivada de la documentación que consta en la prueba 588 y la hace imposible de ser legalmente utilizada en la causa…” (F. 17.271 frente). Nombre11 en esta línea de ideas, los recurrentes agregan otro argumento, a saber, que tanto en mayo como en agosto de 2010, [Nombre01 158] no demostró ser el representante legal de la empresa [Nombre01 215]. Según consideran, esto solo se podría comprobar con certificaciones registrales y notariales y no apoyándose en la prueba 588, cuya legalidad se cuestiona. Además, el dicho de [Nombre01 158], quien depone en lo personal y no como representante de la empresa, debería acreditarse fehacientemente, sobre todo si se considera que fue casi seis años antes que se obtuvo la prueba sin orden judicial. Para los impugnantes, el voto de mayoría, a folio 897, acepta pacíficamente que cuando se recibe la documentación bancaria de Panamá, ya se ha producido el levantamiento del secreto bancario sin orden de juez, dándose la siguiente situación: “... en la hipótesis de que los documentos de la cuenta bancaria de [Nombre01 215] en Panamá se hubieren recolectado sin mediar orden jurisdiccional, [Nombre01 158] lo que hace es aceptar que ese resultado (recopilación de los documentos bancarios) hubiere ocurrido sin el respectivo resguardo (orden jurisdiccional) a su derecho a la privacidad. Desde esta perspectiva para esta integración lo que opera de su parte en un sentido técnico jurídico es la renuncia al referido derecho que se caracteriza por ser un acto procesal expreso y posterior al acto, características que reúne la actuación de [Nombre01 158]”. Tal criterio es errado, pues el consentimiento debió haber sido otorgado antes de la violación del secreto bancario. Lo que hace [Nombre01 158] en 2010, seis años después de tal violación, es renunciar a su derecho a la privacidad, lo que no permite legitimar la prueba en cuestión. Los recurrentes afirman que el tema a dilucidar es si [Nombre01 158] podía renunciar a su derecho a la privacidad, siendo que con esa renuncia afecta a otras personas: “Este es el verdadero quid del asunto. No hablamos de los derechos de [Nombre01 215] a su privacidad. Ello hubiera sido acertado en septiembre de 2004 si en ese momento la empresa [Nombre01 215] por medio de quien fungiere como su representante hubiera autorizado el levantamiento del secreto bancario de sus cuentas ante una solicitud de la Fiscalía o del mismo BAC Panamá. Claro que tenía plena competencia para autorizar el levantamiento del secreto bancario de sus cuentas, independientemente de quienes hubiesen remitido dinero a ellas o de quien fuera su destinatario final, en caso de que hubiera sido así. También es posible que a posteriori los representantes de [Nombre01 215] renunciaran a su derecho a la privacidad y a la acción legal contra la Fiscalía y el Banco por el empleo de la información derivada de esas cuentas ilegalmente abiertas, PERO SÍ Y SOLO SÍ ELLOS FUEREN LOS ÚNICOS AFECTADOS POR ESA OBTENCIÓN ILEGAL. Porque lo que las Juezas no quieren ver es que el derecho constitucional acá no es la privacidad de [Nombre01 215] o del señor [Nombre01 158], es más bien y en mayor medida e importancia, el de nosotros los imputados A QUE NO SE UTILICE EN NUESTRA CONTRA INFORMACIÓN, EVIDENCIAS, PRUEBAS, ILEGALMENTE OBTENIDAS PARA RESTRINGUIR NUESTROS DERECHOS E INTERESES, QUE SON TANTO O MÁS IMPORTANTES QUE LOS DEL SEÑOR [Nombre01 158] QUE NI SIQUIERA ES IMPUTADO EN ESTA CAUSA… Si la empresa hubiere querido autorizar la apertura de sus cuentas en Panamá claro que lo podía haber hecho expresamente… en ese caso la información documental que se utiliza en nuestra contra hubiese tenido un origen lícito. Pero no es el caso. Acá se utilizó evidencia ilícitamente obtenida no en contra de [Nombre01 158] o [Nombre01 215],… sino en contra de terceros, los que tenemos un derecho constitucional garantizado… a que no se utilice en nuestra contra pruebas espuriamente obtenidas. Los datos de [Nombre01 215] podían pasar de privados al conocimiento de la Fiscalía con autorización de sus representantes si Nombre02 lo hubieran dado antes de su empleo contra nosotros, pues a partir de ese momento ya no está en juego solamente la privacidad de una empresa y los intereses claros de un señor que “colabora” con la Fiscalía. Por eso es falso y aventurado decir que negar efectos a la nota y las palabras de [Nombre01 158], seis años después del atropello constitucional es COHONESTAR UN PROCEDIMIENTO ILEGAL... Y PROPICIADOR DE UNA ACTUACIÓN ARBITRARIA Y ABUSIVA EN EL EJERCICIO DEL PODER PÚBLICO. (Folio 913). Más bien es la actitud complaciente de las Juezas de mayoría la que lleva a cohonestar un procedimiento ilegal e invasivo en los derechos de los imputados al ser cómplices de una violación constitucional de manera conciente: las Juezas saben que la prueba bancaria se obtuvo sin orden de Juez, saben que se utilizó para imponerse de la existencia de [Nombre01 058] y sus presuntas relaciones con [Nombre01 091] y los imputados, saben que se usó para recabar evidencia sin tener una fuente independiente ni anterior y saben que se violan los derechos de los imputados con ella, pero admiten que un tercero ajeno al proceso sanee seis años después lo que se quebró definitivamente y cuando lo que está en juego no es la privacidad sino la dignidad judicial, que es lo que se afecta cuando se aplaude el uso de prueba espuria. ¿Quién es entonces el que cohonesta un procedimiento ilegal y propicia una actuación arbitraria y abusiva? Por ello es que sí se afectan los derechos legítimos de los imputados a que no se utilice prueba ilegal en su contra y a que se excluya la misma de los autos, no se trata de que pretendamos impedir que [Nombre01 215] o [Nombre01 158] alegremente renuncien a su privacidad, eso es muy de ellos y de sus intereses claros u oscuros, vaya Dios a saber. Pero que [Nombre01 158] procure con la complacencia de fiscales y Juezas en que se obtenga y use prueba ilegal en nuestra contra es inadmisible. Por ello la lectura de diversos votos de la Sala Tercera que se incorporan no tiene relación alguna con la materia que nos ocupa. No nos encontramos frente a casos en que el titular de la privacidad renuncia a sus derechos a la intimidad para poder acusar a quienes les han ofendido o afectado, ya que ni [Nombre01 215] ni [Nombre01 158] son partes en esta causa. Puede leerse el error de las Juezas al escribir al Folio 919 que la documentación bancaria no se obtuvo de manera ilegal ya que el conocimiento de esa información deriva de la autorización de los titulares de esas cuentas. FALSO DE TODA FALSEDAD. El conocimiento deriva de un levantamiento ilegal del secreto bancario por la Fiscalía y al usar esa prueba en contra de otros imputados, su ámbito de daño fue más allá del simple derecho a la privacidad de [Nombre01 215] y en ese daño ampliado no es soberano ni [Nombre01 158], ni esa empresa, ni las Fiscalas ni las Juezas. Si hubo delito o no en la forma en que se obtiene la evidencia bancaria es un asunto ajeno a los autos: la obtención fue ilegal y su uso fue espurio, independientemente de que [Nombre01 158] o [Nombre01 215] no deseen acusar a quienes Nombre02 actuaron o que la acción penal haya prescrito. Por ello los devaneos que consisten en pretender absolver de delitos a quienes actuaron ilegalmente no son más que eso: devaneos. La ilegalidad de una prueba no requiere derivar de un delito, basta que su obtención fuere contraria a derecho para que deba excluirse, no solo ella per se, sino toda la que derive de ella, salvo que cuente con una fuente independiente y anterior, lo que no ocurre en la causa…” (F. 17.273 y 17.274 frente, la transcripción es literal). Cuarto. La información proveniente de la prueba bancaria de Panamá, y que deriva de un ilegal levantamiento del secreto bancario, no se puede acreditar ni validar bajo la excepción del descubrimiento inevitable. Las juezas pretenden justificar la utilización de prueba ilegalmente obtenida, argumentando que era un descubrimiento inevitable. Para ello, se cita el fallo de la Sala Tercera N° 125-2001, el cual señala que si se demuestra fehacientemente que la prueba excluida, por ilegal, se habría descubierto u obtenido EN FORMA INEVITABLE O SEGURA A PARTIR DE LAS INVESTIGACIONES LEGÍTIMAS QUE YA SE ESTABAN LLEVANDO A CABO EN ESE MOMENTO, se puede validar a posteriori, no porque no haya sido inválida, sino porque de todos modos se habría arribado a ella. En este caso nada de eso ocurrió. Explican los impugnantes que, cuando se obtiene la prueba cuestionada, no existía una investigación sobre el tema Nombre64 091], como tampoco se conocía nada acerca de la empresa [Nombre01 058]., con lo cual es evidente que no había investigaciones legítimas en trámite. Además, si bien las juezas hablan de investigaciones lícitas de carácter periodístico, explicando que para abril de 2004 era inevitable llegar a las conclusiones a las que se llegó, porque ya los periodistas encausaban una investigación que iba a terminar por encontrar la conexión entre [Nombre01 058] . y la propia [Nombre01 091], tal argumento constituye una suposición interesada y no demostrada. En ningún momento los medios de comunicación son auxiliares de la justicia, o sustitutos de los órganos de investigación del Estado. Pero es que, además, al día 27 de septiembre de 2004 los periodistas no se referían a [Nombre01 058]. como transmisor de recursos a las cuentas de [Nombre01 215]. No obstante, ya para el 10 de septiembre de 2004 se contaba con la información bancaria, lo que desecharía la posibilidad de aplicar el criterio de descubrimiento inevitable para validar la prueba en este caso. Quinto. La información bancaria de Panamá, que proviene de un levantamiento ilegal del secreto bancario, no se puede acreditar ni validar bajo la excepción del hallazgo casual. Según los recurrentes, la prueba venida de Panamá es en su totalidad nula y no se puede convalidar por pedazos o por partes. No estamos ante el caso, por ejemplo, de un allanamiento ilegal que hace descubrir otro delito. Las juezas, a folio 949, dicen que antes de que la fiscalía se impusiera de la información bancaria, ya había noticias que relacionaban empresas y personas, pero lo cierto es que ninguna involucraba a [Nombre01 058]. En el fallo se afirma una falsedad, a saber, que gracias a esas informaciones periodísticas es que surgió el interés de investigar la citada empresa, cuando lo cierto es que ninguna nota periodística involucraba a [Nombre01 058] con el caso antes del 10 de septiembre de 2004. Por tanto, “… faltan a la verdad las juezas cuando pretenden indicar que tenían conocimiento las Fiscalas acerca de evidencias o indicios de esta empresa y que con base en ellas, que no existían a ese momento, continuaron con sus investigaciones y al revisar la información de Panamá se encontraron casualmente con lo relativo a [Nombre01 058]. Qué enredo hacen en sus devaneos teóricos. Si según ellas ya había surgido el interés de investigar a [Nombre01 058] y su relación con [Nombre01 018], lo que es falso, qué explicación tendría la casualidad en el hallazgo, ya que según indican la Fiscalía iba ya detrás de [Nombre01 058]. Es evidente que no existía indicio alguno previo al 10 de septiembre acerca de [Nombre01 058] y su ligamen al caso, que ni siquiera había iniciado…” (F. 17.275 frente). Por ello, no es dable aplicar en este caso la excepción del descubrimiento casual para validar la prueba. Sexto. La información bancaria de Panamá se obtuvo ilegalmente y se pretende validar como una notitia criminis, lo que es contrario a Derecho. Señalan que “… a lo que lleva directamente esta tesis es a negar todo valor probatorio a la prueba de Panamá, pero a procurar que la que derive de ella sí lo posea, al tenor de la jurisprudencia de la Sala Tercera existente...” (F. 17.276 frente). Pero lo cierto es que de esa prueba no se deriva evidencia de delito que pueda atribuirse a [Nombre01 058]. Tan solo se tiene constancia de que esta empresa envió transferencias a [Nombre 215], la cual se investigaba en la causa CCSS-FISCHEL. Los encartados rechazan además, que se considere noticia criminis la información generada tras un levantamiento del secreto bancario ilegal y que por ello, no pueden ser utilizadas en contra de ningún imputado.

  XXII.- Los alegatos deben desestimarse. En primer término, es necesario aclarar que si bien [Nombre01 001], [Nombre01 028] y [Nombre01 041] fueron absueltos de toda pena y responsabilidad, [Nombre01 018], que es el cuarto imputado que interpone el recurso a título personal, no se encuentra en esa situación, de ahí que, al menos en lo que a él respecta, la impugnación conserve interés. Aclarado esto, se tiene que el tema de la legalidad de la prueba N° 588 fue decidido por la Sala Tercera al conocer y resolver el recurso de casación planteado por el Ministerio Público contra el pronunciamiento dictado anteriormente por este tribunal de apelación (con una integración diversa), concluyendo que es lícita y ordenado además que sobre esa base (la legalidad de la citada prueba) se realice el reenvío: “… En cuanto al reclamo del Ministerio Público, referente a la declaratoria de ilicitud de la prueba 588, por considerar el Tribunal de Apelación de la Sentencia Penal, que aquella fue recabada sin orden o aval de un órgano jurisdiccional, condición necesaria, desde su criterio, para la validez de dicha probanza, las Magistradas López Madrigal, Gómez Cortés y los Magistrados Desanti Henderson y Sanabria Rojas, estimamos que, no obstante, esta Sala, con otra integración, se pronunció sobre esta misma prueba, en el voto de mayoría 2011-00499, de las once horas cuarenta y cinco minutos, del once de mayo de dos mil once, es lo cierto, que los criterios externados en esa sentencia no obligan a esta nueva integración a preservarlos o valorarlos de igual manera, de modo que, por los principios de independencia judicial e imparcialidad, las y los suscritos Magistrados discrepamos sobre la exigencia de una resolución previa de un órgano jurisdiccional costarricense o de un aval del Juez Penal, anterior a la solicitud de la probanza realizada por la Procuraduría General de la República costarricense como requisito de validez para acceder a la información recabada en Panamá, a través del TALM, dada la posición asumida por el Tribunal de Apelación de Sentencia en el fallo 2012-2550 cuestionado, esta Sala con la mayoría de la presente integración se refiere en los términos que a continuación se exponen. De previo a entrar en materia sobre el reclamo interpuesto, es necesario ahondar en el tema de la soberanía de los Estados como principio del Derecho Internacional Público y sus implicaciones en nuestro ordenamiento, siendo procedente señalar que como parte del concepto de soberanía, que abarca población, territorio y poderes del Estado, la Constitución Política costarricense, en sus artículos 5 y 6 define al territorio nacional en el que se ejerce la soberanía completa y exclusiva. Desde la definición espacio territorial asumida en los citados numerales, también el artículo 9 de la Constitución Política, describe la organización interna del territorio y la separación de poderes, en tres órganos independientes entre sí: Legislativo, Ejecutivo y Judicial, Nombre02 como sus competencias como parte del ejercicio de esa soberanía estatal. Con relación al Poder Judicial, tema de trascendencia en la resolución del sub júdice, la misma Carta Magna le otorga funciones específicas, al tenor de los artículos 9, 10, 39, 48, 49, 152 y 153, que se ven normados por medio de los numerales 1 al 5 de la Ley 7333, Ley Orgánica del Poder Judicial y dentro de las que destacan la aplicación –obviamente a los habitantes del territorio costarricense- de las leyes y normas promulgadas por el Poder Legislativo, mismas que por el artículo 29 del Tratado de Viena sobre el derecho de los Tratados, también llevan intrínseco el respeto a los principios de soberanía de otras naciones como “un derecho fundamental de cualquier Estado en la comunidad internacional” (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, México, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.87) y al de no interferencia en otro territorio o en la legislación interna de cada país como corolario del primero, debido a que cada uno de ellos tiene la facultad de ser independiente en cuanto a sus regulaciones internas. Empero, el principio de soberanía internacional aludido no es absoluto, puesto que “…en las relaciones exteriores de dichos Estados, ellos pueden obligarse legalmente por medio de tratados y otros acuerdos internacionales para ejercer su soberanía” (Nombre77 (Nombre78), El ejercicio de la Soberanía de los Estados, México, Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México, p.103), por medio de organizaciones como Naciones Unidas a través de planes de acción para las firmas de convenios o acuerdos como el Tratado Modelo de Asistencia Recíproca en Asuntos Penales, aprobado como Plan de Acción de Milán, por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente y por la Asamblea General en su resolución 40/32, de 29 de noviembre de 1985, sean "instrumentos modelo adecuados que puedan ser utilizados como convenciones internacionales y regionales y como guías para la elaboración de leyes nacionales" (Preámbulo del Tratado Modelo de Asistencia Recíproca en Asuntos Penales) para ser empleados precisamente como "…un marco útil que puede servir a los Estados interesados para negociar y concertar acuerdos bilaterales encaminados a mejorar la cooperación en materia de prevención del delito y justicia penal" (Aspecto primero del Preámbulo del Tratado Modelo de Asistencia Recíproca en Asuntos Penales). Es Nombre02 como, por ejemplo, a partir del Tratado Modelo de Asistencia Recíproca en Asuntos Penales, los Estados Nombre10 de las Naciones Unidas, como Costa Rica, en cumplimiento de los fines de ese instrumento internacional, se han dado a la tarea de suscribir además convenios o tratados que, sin lesionar la soberanía de otros países o del país mismo, producen el entendimiento entre los gobiernos sobre temas específicos que los aquejan, tales como: la Convención de las Naciones Unidas contra la Corrupción (ratificada por Costa Rica por medio de la Ley 8557, del veintinueve de noviembre de dos mil seis) o como la Convención de las Naciones Unidas contra la Delincuencia Organizada Trasnacional (Convenio de Palermo, 2000, ratificada por Costa Rica, mediante Ley 8302, del doce de setiembre de dos mil dos), cuyos fines primordiales radican en mejorar la investigación de conductas delictivas que aquejan ya no a solo un Estado sino al resto de países del área, pudiendo observarse que en ese afán Costa Rica ha suscrito sendos tratados o convenios específicos con otros países como México (Ley 7282, del catorce de enero de mil novecientos noventa y dos), Panamá (en fecha 29 de noviembre de dos mil uno), Argentina (Ley 8610, del primero de noviembre de dos mil siete), Trinidad y Tobago o como el en caso que nos ocupa, el Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (TALM), aprobado mediante Ley 7696, vigente desde el treinta de octubre de mil novecientos noventa y siete, que ha tomado como punto de referencia, muchas veces al pie de la letra, lo estipulado en el Tratado Modelo antes citado. Nombre02 el TALM, aparte de contener las mismas limitaciones o restricciones de utilización y protección de confidencialidad (artículos 8 y 9 del Tratado Modelo de Asistencia Recíproca en Asuntos Penales de Naciones Unidas) supra descritas, también presenta los mismos requisitos concernientes a las solicitudes de Autoridades competentes de los Estados Nombre02 como su propio contenido. Justamente, al igual que el Tratado Modelo de Asistencia Recíproca en Asuntos Penales de las Naciones Unidas, la finalidad del TALM suscrito por nuestro país con los demás países Centroamericanos y Panamá es: "fortalecer y facilitar la cooperación de los órganos administradores de justicia en la región, a través de un instrumento jurídico que permita la asistencia legal en asuntos penales entre los Estados del Istmo Centroamericano con pleno respeto a la legislación interna de cada Estado" (Preámbulo del TALM). De esta manera, a través de este tipo de normas, es posible realizar solicitudes a los países contratantes, que permitan acceder a probanzas que se encuentran en países vecinos para facilitar la investigación de causas penales con hechos punibles tipificados tanto en el Estado Requirente como el Requerido, tal como lo admite el artículo 2.2. del TALM: "La asistencia legal de conformidad con lo que dispone el presente Tratado incluye: a) La recepción de declaraciones testimoniales. b) La obtención y ejecución de medios de prueba. c) La notificación de resoluciones judiciales y otros documentos emanados de autoridad competente; d) La ejecución de medidas cautelares. e) La localización de personas; y f) Cualquier otra asistencia legal acordada entre dos o más Estados Contratantes..."(Artículo 2.2 del TALM. El suplido es nuestro), aconteciendo que con el fin de mejorar la comunicación entre los Estados Centroamericanos y Panamá que suscriben el Tratado, se optó por duplicar el mecanismo ideado en el Tratado Modelo de Asistencia Recíproca en Asuntos Penales, sea, la designación de "...una autoridad o autoridades por cuyo conducto deberán formularse o recibirse las solicitudes previstas en el presente Tratado y lo pondrá en conocimiento de la otra Parte..."(Artículo 3 del Tratado Modelo de Asistencia Recíproca en Asuntos Penales), entendiéndose que esa Autoridad o Autoridades Centrales en los Estados Contratantes, presentan "…capacidad administrativa suficiente, a través de la cual las solicitudes de asistencia deberán ser tramitadas de conformidad con el presente Tratado" (Artículo 3 del TALM. El suplido es nuestro). Del mismo modo, todo trámite de solicitud, en salvaguardia del derecho interno de los Países Signatarios, debe ser gestionado mediante un procedimiento simple en el que intervienen las denominadas "Autoridades Centrales" de cada uno de esos países: La Autoridad Central del Estado Requirente realiza una petición formal de asistencia a su homóloga en el Estado Requerido, y esta a su vez, conforme a su derecho interno, le da trámite y recaba la probanza que el Estado Requirente necesita obtener, no existiendo, -por tratarse de una facultad asumida por los diversos Estados-, uniformidad en la designación de la Autoridad Central para los diversos países Centroamericanos y Panamá. Así, a modo de ejemplo, la Autoridad Central designada por los países de Costa Rica y Nicaragua es la Procuraduría General de la República, mientras que en El Salvador, Guatemala y Honduras, le corresponde a la Corte Suprema de Justicia y en el caso Panameño, al Ministerio de Gobierno y Justicia, pues como se ha venido estableciendo la tarea de la Autoridad Central en cada país será meramente administrativa y no jurisdiccional, de acuerdo con la inferencia que puede hacerse del preámbulo del Tratado, en consonancia con el principio de Pacta Sunt Servanda y las reglas de buena fe en la interpretación de los tratados, contenidas respectivamente en los artículos 26 y 31 de la Convención de Viena sobre el Derecho de los Tratados, aprobada por la Asamblea Legislativa de Costa Rica por Ley 7615 del 24 de julio de 1996 (en adelante Convención de Viena), ya que con la ratificación del Tratado por los Estados Centroamericanos y Panamá, se buscó crear un instrumento jurídico ágil que permitiera la recabación u obtención de probanzas externas en la investigación de asuntos penales en la región, respetando eso sí, la soberanía y la legislación interna de cada país, siendo que dicha finalidad, también puede ser derivada del numeral 5 del TALM, que establece: “La Autoridad Central del Estado Requerido cumplirá prontamente con la solicitud de asistencia o, cuando fuere conducente, la remitirá a la autoridad competente . Dicha autoridad usará todos los medios legales a su alcance para cumplir con la solicitud”. (El suplido es nuestro). Por otra parte, con relación a la normativa a aplicar para obtener los medios de prueba solicitados por el país Requirente, el Tratado -por el principio del respeto a la soberanía de los otros países contratantes- es claro en señalar que cualquier solicitud una vez conocida por el país Requerido a través de su Autoridad Central, debe ser tramitada y ejecutada de conformidad con su derecho interno, las leyes o formalidades existentes de ese país, reiterándose esa actuación, tanto en el numeral 5 citado como en los ordinales 7.1 y 12.1 del mismo Tratado para, finalmente establecer expresamente en el artículo 6, que el país Requerido tiene la potestad de negarse a dar cumplimiento de la solicitud de asistencia cuando: "...a…Considere que el cumplimiento de la solicitud de asistencia puede perjudicar su soberanía, seguridad u orden público…” (El suplido es nuestro). Sobre el tema de la interpretación del TALM y sus alcances, debe hacerse mención especial a la Convención Interamericana sobre Asistencia Mutua en Materia Penal, suscrita en la Ciudad de Nassau, Bahamas (en adelante Convención de Nassau) el 23 de mayo de 1992, pero ratificada por Costa Rica, por Ley 9006, hasta el 3 de enero de 2012, pues aunque ese texto como tal, no tendría la virtud de tener la característica de vinculante, por haberse ratificado después de la emisión de la sentencia de primera instancia en esta causa, es lo cierto que, por aplicación estricta de los artículos 31, 32, 53 y 64 de la Convención de Viena sobre el Derecho de los Tratados, un tratado no ratificado sigue siendo parte del “jus cogens”, por lo que puede ser utilizado como instrumento de interpretación, Nombre11 que no contravenga las normas del derecho internacional. Aclarado el punto, debe señalarse que la Convención de Nassau antes citada, que es la antesala del TALM, también contiene reglas similares relativas a la aplicación y alcances de la Convención (artículo 2), al nombramiento de las Autoridades Centrales de los países contratantes (artículo 3) Nombre02 como sobre la obtención de las probanzas en los países requeridos (artículo 4), destacándose en lo que interesa, la regla contenida en el numeral 4 citado: “… La asistencia a la que se refiere la presente Convención, teniendo en cuenta la diversidad de los sistemas jurídicos de los Estados Partes, se basará en solicitudes de cooperación de las autoridades encargadas de la investigación o enjuiciamiento de delitos en el Estado requirente” (El suplido es nuestro), es decir, que tanto el TALM como la Convención de Nassau, establecen que los requerimientos hechos a las Autoridades Centrales, llámense estas, Ministerio de Gobierno y Justicia, Procuraduría General, Fiscalía General o cualquier ente gubernamental escogido libremente por los Estados Signatarios, son procedimientos realizados únicamente a través de “solicitudes de cooperación” o de “asistencia” más nunca ambos cuerpos normativos, refieren al término "resoluciones jurisdiccionales entre Autoridades" de investigación o enjuiciamiento, pues se trata de peticiones realizadas al Estado Requerido, que se tramitan de conformidad con su derecho interno (artículo 10, primer párrafo de la Convención de Nassau). Al respecto, precisamente el voto 2011-11969, de las catorce horas y treinta y cuatro minutos, del siete de setiembre del dos mil once, de la Sala Constitucional, dictado con referencia a la constitucionalidad del proyecto de Ley de Aprobación de la Convención de Nassau, mantuvo que: “…El Convenio está compuesto por cuarenta artículos, y fue firmado en la Ciudad de Nassau, Bahamas, durante el vigésimo segundo período ordinario de sesiones de la Asamblea General de la Organización de Estados Americanos, el 23 de mayo de 1992. El proyecto plantea una respuesta multilateral dirigida a combatir el flagelo del crimen organizado; actualizando, mejorando y homogenizando la legislación interna del Sistema Interamericano. La asistencia mutua alcanza investigaciones, juicios y actuaciones en materia penal referentes a delitos que deba conocer el Estado requirente (artículo 2). Se indica que se consagra el principio de doble incriminación, en tanto la asistencia se prestará aunque el hecho que la origine no sea punible en el Estado requerido pero sí –con una pena superior al año- en el Estado requirente, excepto si se trata de la aplicación de medidas cautelares (artículos 5 y 6). Se enumeran los actos procesales en los que se prestará asistencia, incluido el traslado de personas detenidas (artículo 7) y la posibilidad de denegar la asistencia requerida (artículo 9). Se regula asimismo el procedimiento de solicitud, trámite y ejecución de la asistencia (artículos 10 a 16); la forma en que deberán notificarse las resoluciones, providencias y sentencias y las comparecencias de peritos y testigos (artículos 17 a 23); la forma de remitir informaciones y antecedentes (artículos 24 y 25); y el procedimiento propiamente dicho de la asistencia (artículos 26 a 31). Finalmente se enumeran las cláusulas finales (artículos 32 a 40), que permiten a los Estados formular reservas, y regulan la ratificación y entrada en vigor de la Convención. Deben destacarse las amplias posibilidades que tienen los Estados de denegar la asistencia cuando lo estimen conveniente, y la importante figura del traslado de detenidos que -por ser una medida temporal- dista mucho del proceso de extradición y facilita los fines del Convenio de manera significativa. En general, se puede indicar que este convenio de asistencia interestatal en materia penal es un instrumento jurídico que permite garantizar la actuación de la ley penal en una sociedad en la que la criminalidad es cada día más organizada y trasciende fronteras. La suscripción de este Convenio permite a los estados americanos facilitar la aplicación de los procedimientos penales, sobre todo en los casos en que no se cuente con tratados bilaterales. Debe tenerse claro, además, que deberá interpretarse el tratado en concordancia con la normativa interna sobre la materia (en particular los artículos 5 párrafo segundo, 7 inciso i, y 20 inciso c, que son disposiciones de carácter potestativo; y el 24 inciso 2 que requiere en la normativa interna una orden de un juez nacional) y que todos aquellos supuestos no contemplados en el Convenio serán suplidos por el ordenamiento jurídico en general, incluidos al efecto los diversos instrumentos internacionales vigentes en materia penal…”(El suplido es nuestro), concluyendo el máximo órgano constitucional de nuestro país, con respecto al proyecto de aprobación de la Convención de Nassau -que posteriormente fue ley de la República y hoy día se mantiene vigente-, que Costa Rica, como Estado al que se le solicita la asistencia (Estado Requerido), debe prestar la colaboración o asistencia de conformidad con su normativa interna, haciendo uso de sus medios legítimos tradicionales para salvaguardar los derechos de aquellos sobre los que se peticiona la cooperación e incluso haciendo énfasis en que se utilicen esos medios vigentes en el país para resguardar los derechos de los sujetos a los que las probanzas podrían perjudicar, no refiriéndose la sentencia en cuestión, en ningún momento a los requisitos formales necesarios para peticionar como Estado Requirente ni menos a la necesidad de un aval u orden jurisdiccional, al momento de solicitar la asistencia, lo que sí se contempló, para aquellos casos en los que las probanzas deben ser recabadas en nuestro territorio, como parte de las obligaciones adquiridas con la firma del Tratado como Estado Requerido. Al respecto, nótese que el fallo hace referencia a los artículos 5 párrafo segundo, 7 inciso i, y 20 inciso de la Convención como disposiciones potestativas del Estado al que se le solicita la asistencia legal (Estado Requerido) y a la norma 24 inciso 2 de ese mismo cuerpo normativo como único presupuesto en el que la remisión de documentos, informaciones y antecedentes requiere por parte de Costa Rica como Estado Requerido, la respectiva orden judicial, reiterándose que en atención al proyecto de la Convención de Nassau, antesala del TALM, nuestro mayor órgano constitucional nunca señaló como presupuesto de validez para la solicitud de cooperación costarricense a otros Estados Centroamericanos y Panamá, el requisito de un aval u orden jurisdiccional emanada de un Juez para peticionar ante los otros Países Signatarios, sino que el requisito de orden jurisdiccional fue determinado única y exclusivamente para aquellos casos en los que nuestro país, es requerido para entregar información a los Estados que solicitan asistencia, es decir, se trata de un razonamiento a todas luces acorde con la finalidad de la Convención, en el tanto se pretende el respeto absoluto a la normativa interna de cada país contratante, al ser la asistencia un mecanismo de ayuda en la obtención de probanzas meramente administrativo, no pudiendo Costa Rica o algún otro país parte de la Convención como Estado Requirente, sin violentar el principio de soberanía, ordenar al Estado Requerido la recabación de prueba a través de una orden jurisdiccional, puesto que la forma en la que la asistencia es realizada es potestad del Estado Requerido, según sus disposiciones internas, siendo que para el caso costarricense, tal asistencia una vez gestionada por el Estado Requirente, bien podría ser recabada, con las formalidades exigidas en la norma 24 de la Constitución Política, por aplicación estricta del numeral 24 de la Convención de Nassau, que reza: “ En los casos en que la asistencia proceda según está Convención, previa solicitud, y de acuerdo con el procedimiento interno, el Estado requerido facilitará al Estado requiriente(sic) copia de los documentos, antecedentes o informaciones de carácter público que obran en los organismos y dependencias gubernamentales del Estado requerido./ El Estado requerido podrá facilitar copias de cualquier documento, antecedentes o informaciones que obren en un organismo o dependencia gubernamental de dicho Estado pero que no sean de carácter público, en igual medida y con sujeción a las mismas condiciones en que se facilitarían a sus propias autoridades judiciales, u otras encargadas de la aplicación de la ley. El Estado requerido podrá, a su juicio, denegar total o parcialmente una solicitud formulada al amparo de este párrafo” (El suplido es nuestro). Como se desprende de la norma 24 de la Convención y del voto 2011-11969, de la Sala Constitucional supra citado, la obtención de elementos probatorios en Costa Rica como Estado Requerido, debe hacerse conforme a las disposiciones legales de nuestro ordenamiento jurídico, de forma tal que, si el derecho interno presenta como requisito el dictado de una orden de un Juez, para acceder a la información peticionada, será indispensable su dictado, empero, ese mismo accionar no es aplicable en el supuesto en el que Costa Rica solicita información a otro país (Estado Requirente), según se desprende del mismo fallo 2011-11969 citado: “… Ante una eventual prestación de asistencia que pueda ser considerada lesiva de los derechos fundamentales del sujeto de la colaboración, podrán utilizarse los remedios tradicionales previstos para la tutela de dichos derechos en nuestro ordenamiento. Por lo expuesto, se trata de un instrumento que se ajusta a los valores y principios constitucionales básicos, por lo que resulta sustancialmente conforme con el parámetro de constitucionalidad…” (Sala Constitucional de la Corte Suprema de Justicia, voto 2011-11969, de las catorce horas y treinta y cuatro minutos, del siete de setiembre del dos mil once. El suplido es nuestro). Sumado al anterior acervo de interpretación, es notorio que también el TALM, por estar derivado de la Convención de Nassau y adoptar el mismo mecanismo de obtención de probanzas en los Estados Requeridos, de ningún modo presenta roces de constitucionalidad, según el criterio vertido por la Sala Constitucional, en el voto 1997-04711, de las dieciséis horas con veintiún minutos, del diecinueve de agosto de mil novecientos noventa y siete, que resolvió una consulta de constitucionalidad sobre el proyecto de ley de aprobación del Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (TALM), hoy ley vigente de la República. El voto 1997-04711 de marras, estableció en su interpretación, en primer término, los propósitos del Tratado y en segundo lugar, los cuestionamientos sobre la constitucionalidad del mecanismo de obtención de prueba, una vez que la solicitud del Estado Requirente es recibida en Costa Rica como Estado Requerido, determinando, finalmente nuestra Sala Constitucional, la inexistencia de roces de constitucionalidad, aún cuando a la Procuraduría General Costarricense se le adjudiquen funciones de carácter administrativo. En efecto, el voto citado, en lo que interesa determinó: "…IV. En cuanto al fondo del asunto, se considera oportuno rendir opinión no vinculante, para señalar que mediante el Tratado, según la exposición de motivos del Ejecutivo, se pretende cumplir los siguientes propósitos: "Los Estados del Istmo centroamericano han suscrito el presente Tratado con el objeto de crear un marco jurídico que les permite asistirse mutuamente en asuntos penales que se ventilan en sus respectivos Tribunales de Justicia. Sin embargo, los países suscribientes han estimado que esta asistencia es limitada a aspectos accesorios al proceso, los cuales no van en detrimento del deber soberano de cada Estado de administrar justicia. En este sentido su objeto es facilitar la ejecución de un acto procesal en aquellos casos en los que sea necesaria la colaboración de autoridades de otro Estado. La asistencia contempla los siguientes aspectos: recepción de declaraciones testimoniales, obtención y ejecución de medios de prueba, notificación de resoluciones judiciales, ejecución de medidas cautelares, localización de personas, Nombre02 como cualquier otro tipo de asistencia acordada entre dos o más Estados Partes. Sin embargo, considerando que existen ciertas competencias que requieren de un Acuerdo específico para su ejecución, el presente Tratado excluye de su ámbito de aplicación los aspectos relacionados con materia fiscal, la detención y extradición de personas, la transferencia de procesos penales, y la transferencia de reos con el objeto de que cumplan sentencias penales en otros países."/V. En primer término, valga simplemente aclarar, que aunque en el texto del convenio se permite la ejecución de medidas capaces de lesionar, eventualmente, derechos fundamentales como son, por ejemplo, el acceso a datos, la aprehensión o decomiso de objetos; la delegación de la actuación en una autoridad jurisdiccional y la obligatoria sujeción al régimen interno de cada país sobre la materia, eliminan cualquier posible contradicción con la Carta Fundamental./Finalmente, tampoco encuentra la Sala contrario a la Constitución que se previera como "autoridad central" para el trámite de las solicitudes de asistencia, a la Procuraduría General de la República, pues el mismo tratado aclara que lo hace como una autoridad administrativa (artículo 3) y su función consiste en remitir las peticiones a la autoridad(sic) judicial(sic) competente, la que, en definitiva, ejecutará el acto pedido…”(Sala Constitucional de la Corte Suprema de Justicia, voto 1997-04711, de las dieciséis horas con veintiún minutos, del diecinueve de agosto de mil novecientos noventa y siete. El suplido es nuestro). Criterio de constitucionalidad que, por demás, fue reiterado en la sentencia 2001-04248, de las quince horas con cuatro minutos, del veintitrés de mayo de dos mil uno, de la misma Sala Constitucional, al resolver una acción de inconstitucionalidad en contra del artículo 13 del TALM. En aquella oportunidad, nuestro máximo órgano constitucional, al estudiar el procedimiento adoptado por el Tratado para la obtención de probanzas documentales, estableció la innecesaria tramitación consular como mecanismo de validación probatoria, Nombre11 que dicha diligencia se hubiese realizado conforme a las normas del derecho interno del país Requerido, al señalar: “…De la lectura del artículo cuestionado, constata este Tribunal que el mismo dispone las pautas para remitir copia de los documentos públicos como consecuencia de una solicitud de asistencia requerida por alguno de los Estados parte del Tratado de Asistencia Legal Mutua en Asuntos Penales, indicándose que los documentos serán suministrados bajo las mismas condiciones que los suministraría a sus propias autoridades encargadas de hacer cumplir la ley. Dichos documentos deben ser elaborados por el funcionario encargado del Estado requerido de mantenerlos en custodia y certificados por la Autoridad Central, mediante sello cuyo formato aparece en el anexo del presente Tratado. Esto es, si bien la norma exime las copias de los documentos solicitados del trámite ante el notario consular, lo cierto es que establece un mecanismo que garantiza la veracidad y autenticidad del contenido de los mismos al exigir que tales documentos sean formados por el funcionario encargado de mantenerlos en custodia y certificados exclusivamente por la Autoridad Central (según se indica para cada Estado Contratante en el artículo 3 del Tratado), mediante el sello diseñado al efecto; mecanismo que resulta acorde con el principio del debido proceso en el tanto, en cada caso, las autoridades competentes del Estado requerido hayan elaborado, y ejercido control sobre las actuaciones que señala la norma, Nombre02 como que haya sido certificado el documento por parte de la respectiva autoridad central, para que se hayan satisfecho los requerimientos del debido proceso a nivel constitucional…” ( Sala Constitucional de la Corte Suprema de Justicia, voto 2001-04248, de las quince horas con cuatro minutos, del veintitrés de mayo de dos mil uno). Posición que reafirma la tesis que el mecanismo de obtención de probanzas, debe ser el seguido por la legislación interna de cada país Requerido, no pudiendo interpretarse como requisito de validez, el dictado previo de una orden jurisdiccional que provenga del País Requirente. A mayor abundamiento, ese mismo enfoque fue reiterado más recientemente por la Sala Constitucional, en el fallo 2011-002074, de las diecisiete horas y cuarenta y tres minutos, del quince de febrero del dos mil once, al resolver una acción de inconstitucionalidad planteada en contra los artículos 2.5 y 12.1 del TALM, en la cual aunque la rechaza de plano, determinó en cuanto a la solicitud de asistencia del Estado Requirente, que: “…Obsérvese que la asistencia prevista en el supra citado Tratado contempla la recepción de declaraciones testimoniales, la obtención y ejecución de medios de prueba, la notificación de resoluciones judiciales, la ejecución de medidas cautelares, la ubicación o localización de personas, Nombre02 como cualquier otra clase de asistencia pactada entre dos o más Estados Partes. Normativa que excluye de su esfera de aplicación los temas relacionados con materia fiscal, con la detención y extradición de personas, con la transferencia de procesos penales, y con privados de libertad, con el objetivo de que cumplan sentencias penales en otros países. Claro está que, a pesar que de la literalidad integral del texto del convenio se faculta la eventual ejecución de medidas restrictivas a derechos fundamentales, como podría ser por ejemplo, el acceder por parte de las autoridades jurisdiccionales competentes conforme al derecho interno de cada Estado Social y Democrático de Derecho a datos, a la aprehensión o al decomiso de bienes; esa sujeción descarta cualquier contradicción con el Derecho de la Constitución, donde lo relevante radica en la no interferencia del ejercicio de la función natural de entes de otro Poder (Ver resolución número 1997-04711, de las 16:21 horas del 19 de agosto de 1997, Sala Constitucional, Corte Suprema de Justicia)…” (En igual sentido, Sala Constitucional de la Corte Suprema de Justicia, voto 2001-4248, de las quince horas cuatro minutos, del veintitrés de mayo de dos mil uno). Por último, de la letra del TALM y del principio de soberanía de los Estados, es posible concluir que los elementos probatorios recabados en los Estados Requeridos Nombre11 que hayan sido formalmente gestionados por las Autoridades Centrales previamente establecidas en los Estados Contratantes y que se sigan los procedimientos formales internos en su obtención serán válidos, tal y como lo ha reconocido Costa Rica, como parte de las obligaciones adquiridas al ratificar el Tratado Modelo de Asistencia Recíproca en Asuntos Penales, en el informe del veintiocho de abril de dos mil once, enviado a la Red Hemisférica de Intercambio de Información para la Asistencia Mutua en Materia Penal y Extradición, conformada desde el año dos mil, por Ministros de Justicia y Procuradores Generales de los países Nombre10 de la Organización de Estados Americanos. En ese documento, nuestro país admitió ante el resto de los Estados Signatarios de ese cuerpo normativo, la existencia y validez de procedimientos nacionales e internacionales asumidos por Costa Rica, tendentes a obtener elementos probatorios en la investigación de los procesos penales, dentro de los que destaca ampliamente el mecanismo aceptado con la ratificación del TALM, no denotándose ni derivándose de esa crónica alguna limitación o reserva al respecto, sino un estricto apego al principio de buena fe en la interpretación del Tratado (artículo 31 de la Convención de Viena sobre el derecho de los Tratados), al registrar como parte del ordenamiento jurídico costarricense: "...varios medios para la recepción de solicitudes y su tramitación, uno a nivel interno, y los restantes, a nivel internacional, que se derivan de la suscripción de convenios referentes a distintas materias que a su vez permiten la asistencia judicial recíproca:/1.-A nivel de legislación nacional, para uso en aquellos casos en que no exista convenio internacional que disponga lo correspondiente en materia de asistencia, tenemos lo establecido en el artículos 705 y siguientes del Código Procesal Civil, que establece el Título sobre “Eficacia de sentencias y de laudos extranjeros”, mecanismo ideado para prestar asistencia judicial internacional./ Asimismo, contamos con la Ley N° 7786 de 30 de abril de 1998 (Ley sobre Estupefacientes, Sustancias Psicotrópicas, Drogas de uso no autorizado y actividades conexas), reformada por la N° 8204 de 26 de diciembre de 2001, relacionado con el tema de drogas, cuyo numeral 8° contempla breve y concisamente, competencias para brindar y obtener colaboración judicial y policial en esta materia. Asimismo, el artículo 65 del Código Procesal Penal le atribuye al Ministerio Público la posibilidad de formar equipos conjuntos de investigación con instituciones extranjeras o internacionales./2.-En cuanto al sistema de asistencia judicial predeterminada por convenios internacionales, es menester señalar que Costa Rica no tiene una única autoridad central, sino que tiene varias autoridades centrales para cumplir sus obligaciones internacionales, de acuerdo con los tratados vigentes, para el envío y la recepción de las solicitudes de asistencia mutua en materia penal./Después de más de tres años de conversaciones con los Ministros de Relaciones Exteriores y Culto, Ministros de Justicia y la Procuradora General de la República, el Presidente de la República Oscar Arias Sánchez y la Ministra de Justicia Laura Chinchilla Miranda, emiten el decreto Número 34501-J, publicado en la Gaceta del 7 de mayo de 2008, nombrando a la Fiscalía General autoridad central para la Convención de las Naciones Unidas Contra la Delincuencia Organizada Transnacional, conocida como la Convención de Palermo, ratificada por Costa Rica desde el año 2002. Asimismo el Presidente de la República y la Ministra de Justicia aprobaron el decreto número 34543-J, en el que se designa a la Fiscalía General de la República como Autoridad Central para canalizar la asistencia judicial recíproca y la cooperación técnica, previstas en el marco de la Convención Interamericana contra la fabricación y el tráfico ilícitos de armas de fuego, municiones, explosivos y otros materiales relacionados. El Fiscal General encomendó a la OATRI, la labor de autoridad central en estas dos convenciones por resolución administrativa número 74-08 del nueve de junio de 2008 y por la resolución administrativa número 167-2008 del 8 de septiembre de 2008./El sistema impuesto por la Convención de las Naciones Unidas Contra la Delincuencia Organizada Transnacional y por la Convención Interamericana contra la fabricación y el tráfico ilícitos de armas de fuego, municiones, explosivos y otros materiales relacionados, establece la intermediación de la autoridad central, en estos dos casos la OATRI, que tendrá la obligación de diligenciar la solicitud de asistencia./Las autoridades(sic) centrales(sic) en la Convención de las Naciones unidas(sic) contra el tráfico ilícito de estupefacientes y sustancias psicotrópicas y en el Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, el Salvador, Guatemala, Honduras y Panamá, son el Instituto Costarricense sobre Drogas y la Procuraduría General de la República, respectivamente./ Referente al Tratado Centroamericano de Asistencia Legal Mutua en Asuntos Penales, el sistema impuesto por dicho convenio establece, en principio, la intermediación de una autoridad central con capacidad administrativa suficiente, que tendrá a su cargo la tramitación de la solicitud de asistencia, la cual procederá a remitir a la autoridad jurisdiccional competente, la que finalmente gestionará el requerimiento judicial realizado, ello de conformidad con la normativa vigente del ordenamiento jurídico del Estado Requerido. Esta labor, tratándose de Costa Rica, recae actualmente en la Procuraduría General de la República, ello de conformidad con el artículo 2° del citado texto internacional, siendo la Fiscalía General de la República el receptor de las solicitudes a nivel nacional para el Poder Judicial..." (Informe entregado por Costa Rica, el veintiocho de abril de dos mil once a la Red Hemisférica de Intercambio de Información para la Asistencia Mutua en Materia Penal y Extradición, en Http://www.oas.org/juridico/mla/sp/index.html. El suplido es nuestro), mecanismo último de cooperación que se ha mantenido vigente, aún cuando ha sido revisado en varias ocasiones por la Sala Constitucional costarricense, por medio de los votos supra citados. Con base en lo expuesto y en estricto apego a la finalidad del TALM, considera esta Sala, por la mayoría señalada, que el procedimiento utilizado para la obtención de los registros bancarios de la empresa [Nombre 215] en Panamá, estuvo amparado en la ley, en el tanto el Ministerio Público costarricense, estaba facultado por los numerales 62 del Código Procesal Penal y 2 de la Ley Orgánica del Ministerio Público, como órgano de persecución penal, a gestionar la asistencia e investigación en los términos de aplicación del TALM, ante la Procuraduría General Costarricense, tal y como sucedió en el particular con la solicitud de asistencia dirigida a la República de Panamá, siendo innecesario el dictado de una orden jurisdiccional costarricense al momento de peticionarla. Ahora bien, sobre las formalidades administrativas y no jurisdiccionales que debieron ser cumplidas al momento de tramitar la respectiva cooperación a la Autoridad Central costarricense al Estado Requerido, resta por señalar que el artículo 3 del TALM, es el que determina el procedimiento a seguir en el Estado Requirente, al normar que el suministro de probanzas entre los Países Contratantes estará regido por el derecho interno de cada país, quien por medio de la Autoridad Central competente “con capacidad administrativa suficiente”, tendrá la función de tramitar las peticiones de asistencia de los diversos Países Signatarios, siendo que inmediatamente después de dicha definición, el artículo 4 del TALM, detalla los presupuestos a satisfacer en la solicitud escrita que se presenta ante el País Requerido, dentro de los que se distinguen: “a) La autoridad competente que solicita la asistencia. b) Propósito de la solicitud y descripción de la asistencia solicitada. c) Descripción de los hechos que constituyen el delito objeto de la asistencia de conformidad con las leyes del Estado Requirente. Debe adjuntarse o transcribirse el texto de las disposiciones legales pertinentes. d) Detalle y fundamento de cualquier procedimiento particular que el Estado Requirente desea que se lleve a cabo. e) Especificaciones sobre el término dentro del cual el Estado Requirente desea que la solicitud sea cumplida. 2.- En los casos pertinentes, la solicitud de asistencia también incluirá: a) La información disponible sobre la identidad y supuesto paradero de la persona o personas a ser localizadas. b) La identidad y supuesto paradero de la persona o personas que deben ser notificadas y la vinculación que dichas personas guardan con el caso. c) La identidad y supuesto paradero de aquellas personas que se requieran a fin de obtener pruebas. d) La descripción y dirección precisa del lugar objeto de registro y de los objetos que deben ser aprehendidos; y e) Cualquier otra información que sea necesaria para la ejecución de la solicitud de asistencia…” (El suplido es nuestro). Derivándose de esa norma, como primer requisito, la especificación de la “Autoridad Competente” que peticiona la asistencia en el País Requirente, no pudiendo colegirse de esa frase, como parece entenderlo el Tribunal de Apelación de Sentencia en la sentencia 2012-2550 impugnada, la formalidad del dictado previo de una “resolución judicial” emitida por una "autoridad jurisdiccional competente" del Estado Requirente, debido a que este artículo cuarto refiere a una "autoridad competente", inmediatamente después que los Países Parte del Tratado, designan para cada uno de sus territorios, las respectivas Autoridades Centrales administrativas encargadas de centralizar y direccionar las solicitudes de asistencia de sus homólogos. Asimismo resulta incuestionable, que el inciso segundo del artículo 4 del TALM, refiere al término “solicitud y descripción de la asistencia solicitada", más no a los conceptos “resolución” “fallo” u “orden jurisdiccional”, por lo que la petición del Estado Requirente no podría significar que un Juez de ese Estado ordene a la Autoridad Central del Estado Requerido la obtención de probanzas en su territorio, primero: porque la actuación judicial en cualquier Estado, está limitada por el concepto mismo de jurisdicción, entendido éste como: “la función pública de administrar justicia, emanada de la soberanía del Estado y ejercida por un órgano especial (…) Siendo la jurisdicción una emanación del la soberanía del Estado, o mejor, la soberanía aplicada a la función de administrar justicia, podemos decir, que los límites de aquella son los mismos de ésta, es decir, límite en cuanto al territorio y límite en cuanto a las personas; en dónde y a quién se aplica…” (DEVIS ECHANDÍA, Teoría General del Proceso, Editorial Universidad, Buenos Aires, 1984, p.73 y 99), de modo que, si esa resolución excede los límites poblacionales y territoriales sobre los que el Juzgador puede actuar, se habría producido una extralimitación, que presentaría el efecto de invalidar la probanza obtenida. Segundo, a diferencia de una resolución jurisdiccional que tiene la virtud de ser ejecutada aún por la fuerza, la gestión de asistencia o colaboración en el país Requerido es potestativa o facultativa, ya que si la solicitud muestra el incumplimiento de uno o varios de los presupuestos contemplados en los artículos cuarto y sexto del TALM, el Estado Requerido puede condicionar su envío, o bien, negarse por completo a enviar la probanza. En tercer lugar, el dictado de una orden judicial emanada del País Requirente, Nombre05 una injerencia inoportuna del peticionario en el derecho interno del país al que se le solicita la asistencia, misma que acarrea una inconcebible infracción al principio de soberanía de los Estados. Aclarados los cuestionamientos, con respecto a las competencias otorgadas en el TALM, se hace necesario analizar la legislación interna de Costa Rica en cuanto al derecho a la privacidad de las comunicaciones y el necesario dictado de una orden judicial para accesar a esa información. Así, si bien el artículo 24 de la Constitución Política establece que: “…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 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 (…) Las resoluciones judiciales amparadas a esta norma deberán ser razonadas y podrán ejecutarse de inmediato. Su aplicación será responsabilidad indelegable de la autoridad judicial (El suplido es nuestro), es lo cierto que, en nuestro territorio, el artículo primero de la Ley 7425, Ley sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, otorga la competencia exclusiva para ordenar el registro y secuestro de los documentos privados a los Jueces costarricenses, quienes por medio de una resolución judicial fundada pueden ordenar tal diligencia, autorizando “…el registro, el secuestro o el examen de cualquier documento privado, cuando sea absolutamente indispensable para esclarecer asuntos penales sometidos a su conocimiento…”(Artículo 1 de la Ley 7425. El suplido es nuestro), y pudiendo como parte de sus atribuciones “…ordenar, de oficio, a petición de la autoridad policial a cargo de la investigación, del Ministerio Público o de alguna de las partes del proceso, el registro, el secuestro y el examen de cualquier documento privado, Nombre11 que pueda servir como prueba indispensable en la comisión de alguna conducta delictiva…” (Artículo 2 de la Ley 7425). A partir de las premisas anteriores y del tratamiento que nuestro ordenamiento jurídico le otorga al derecho a la privacidad de las comunicaciones, es evidente que nuestros Jueces carecen de la potestad y la jurisdicción para que sus disposiciones, plasmadas en una resolución judicial, ordenando el quebrantamiento del derecho fundamental del secreto de las comunicaciones, trasciendan de nuestro territorio, siendo que tampoco cuentan con la facultad legal de dirigir a funcionarios públicos de otro país, en la obtención de probanzas necesarias en la investigación de causas penales, ya que sus facultades de coerción, están limitadas al territorio costarricense (Cf. Artículo 1 de la Ley Orgánica del Poder Judicial) y a la actuación personal, comprendida en el artículo 2 in fine, de la Ley 7425. A la luz de esas premisas, para la mayoría de esta Cámara, el procedimiento asumido por el TALM tendente a obtener probanzas en la investigación de asuntos penales, se encuentra ajustado a derecho, ya que si hipotéticamente se asumiera la exigencia de una orden judicial en Costa Rica, en apego a la salvaguarda de los derechos del intervenido, nuestros Jueces Costarricenses, como parte de las obligaciones contenidas en nuestro derecho interno, incluso habrían tenido que notificar y entregar personalmente “…copia de la orden judicial que lo autoriza, a quien le sean registrados o examinados los documentos. De esto se levantará un acta de la cual también se le entregarán una copia, al finalizar la diligencia...” (Artículo 4 de la Ley 7425. El suplido es nuestro), actuación impensable cuando se trata de la jurisdicción de otro país. Sobre el particular, precisamente, esta Sala Tercera, en el voto 2008-1061, de las diez horas, del veintidós de setiembre de dos mil ocho, al resolver un caso en el que para efectuar un anticipo jurisdiccional de prueba, el Juez Penal Costarricense, se trasladó a una Sede Consular, estableció que tal diligencia no podía ser realizada en un territorio ajeno al nuestro, al señalar que: “…Respecto a la falta de competencia del Juez Penal que dirigió el acto (…) En relación con este tema, resulta básico lo dispuesto en el artículo 132 del Código Procesal Penal, que dispone claramente que: “…El tribunal podrá constituirse en cualquier lugar del territorio nacional, cuando estime indispensable conocer directamente elementos probatorios decisivos en una causa bajo su conocimiento y competencia (…) Es evidente que un Juez no puede realizar un acto jurisdiccional en otro país, pues tal potestad de resolver, encuentra su límite en el territorio en el que la misma ha sido otorgada y en ese tanto, la actuación del Juez R.G.V., de trasladarse a Colombia a dirigir personalmente la declaración que mediante anticipo jurisdiccional rindió xxxx, vulneró el principio de soberanía de ese país …” (Sala Tercera de la Corte Suprema de Justicia, voto 2008-1061, de las diez horas, del veintidós de setiembre de dos mil ocho, suplido es nuestro). Ahora bien, con relación al tema de la orden como requisito para optar por la asistencia a Panamá en el presente caso, no observan la mayoría de esta Sala, algún vicio que declarar, en el procedimiento seguido para recabar los movimientos bancarios de las cuentas de la empresa [Nombre 215] en Panamá, en el tanto, las regulaciones contenidas en el artículo 24 Constitucional y la Ley 7425, únicamente están referidas a aquellos casos en los que se pretende la obtención de elementos probatorios hallados en Costa Rica, o en su defecto, cuando nuestro país actúa como Estado Requerido, según el TALM, en el tanto se trata de una resolución judicial, que bien puede ser ejecutada por la fuerza, presupuesto último no contemplado para los casos en los que nuestro país actúa como Estado Requirente, ya que en ningún supuesto el Juez Costarricense tiene la potestad legal de dar órdenes a Autoridades extranjeras. Al respecto, véase que el artículo 12 del TALM, prohíbe a los Estados Requirentes la imposición de su derecho interno, dado que el Tratado, no es más que un acuerdo en el que priva la actuación voluntaria y el buen entendimiento de los Países Contratantes, los que se comprometen a través de la firma de ese Convenio a actuar en la búsqueda de las probanzas solicitadas bajo su derecho interno, pudiendo derivarse del mencionado artículo 12 en concordancia con la norma 4 ambas del TALM, que la petición para la entrega de probanzas entre países signatarios, debe ser realizada por medio de la Autoridad Central competente del Estado Requirente explicando los hechos investigados, los supuestos delitos por lo que se gestiona la asistencia, su propósito y el detalle de los elementos probatorios solicitados, esto con la finalidad de corroborar el requisito de bilateralidad de las conductas ilícitas investigadas y destacar su denegatoria o condicionamiento. Aclarado el punto, resta por analizar el procedimiento seguido en el sub examen para la obtención de la Prueba en Panamá. Justamente, del estudio de los autos, es posible desprender que en fecha veinte de mayo de dos mil cuatro, la Fiscalía General de la República costarricense, peticionó al amparo de los artículos 2, 3, y 4 del TALM; 62, 65, 154, 180 y 181 del Código Procesal Penal y 41 de la Constitución Política, formal Asistencia Judicial Recíproca (Cf.f.14-26 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018] ), ante la Procuraduría General de la República costarricense, en la que se solicitaba investigar, todos los movimientos bancarios de la cuenta No. [Valor 041] del BAC International Bank en Panamá, a Nombre01 de la empresa [Nombre01 215] ., número de ficha 413986, “…desde su apertura y hasta la fecha, Nombre02 como el expediente de apertura de la misma y todos los documentos que se han presentado ante el Banco por parte de quien o quienes están autorizados en la misma...”(Cf.f.23 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018] ), así como que se giraran “…instrucciones al Sistema Bancario Nacional de Panamá con el fin de que indique si la empresa [Nombre02 215] citada, posee cuentas o inversiones en algún Banco, Puesto de Bolsa o entidad financiera de algún tipo y el detalle de las mismas. De existir cuentas se hace necesaria TODA la documentación desde que la misma fue abierta…” (Cf.f.24 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018], la mayúscula pertenece al original. El suplido es nuestro). Órgano, que de conformidad con el mecanismo ideado en el TALM, trasladó la petición de manera administrativa a la Autoridad Central de Panamá, sea, al Ministerio de Gobierno y Justicia Panameño, no sin antes señalar, que: “…De ser necesaria orden de autoridad judicial competente para recabar los elementos probatorios, en acatamiento al ordenamiento jurídico de la República de Panamá, se solicita respetuosamente la realización de las gestiones pertinentes con ese fin, para cada uno de los Bancos del Sistema Bancario Nacional de Panamá, y en especial en el BAC Internacional Bank (Panamá Inc.)…” (Cf.f.11 y 27 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. El suplido es nuestro). Como parte de las normas del derecho interno panameño, la Dirección Nacional para la Ejecución de los Tratados de Asistencia Legal Mutua, adscrita al Ministerio de Gobierno y Justicia Panameño, remitió mediante el oficio No.193-DN-TALM-04, de fecha primero de junio de dos mil cuatro, la gestión costarricense a la Procuraduría General de esa Nación, que a su vez, por oficio sin número del nueve de junio de dos mil cuatro (Cf.f.29 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), dispuso comisionar a la Fiscalía Primera Anticorrupción de la Procuraduría General de esa Nación a fin de recabar los elementos probatorios solicitados por Costa Rica, en referencia a la cuenta No. [Valor 041] de la empresa [Nombre 215]. (Cf.f.23 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]), estableciendo en lo que interesa, ese ente que: “…El suscrito Procurador de la Nación DISPONE: Acceder a prestar la asistencia requerida dentro de los términos que lo posibilita la legislación nacional, para lo cual se dispone comisionar a la Fiscalía Primera Anticorrupción” (Cf.f.27 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018] . El suplido es nuestro), siendo que una vez que la solicitud fue conocida en la Fiscalía mencionada, se dispuso realizar: “…Inspección Técnica Ocular en el BAC INTERNATIONAL BANK (PANAMA INC.), de la cuenta No.[Valor 041] de la Empresa [Nombre 215]., con número de ficha 413986, a fin de inspeccionar(sic) todos los cheques que se han emitido de esa cuenta, desde su apertura y hasta la fecha, Nombre02 como el expediente de apertura de la misma y todos los documentos que se han presentado ante el Banco, para saber quien o quienes están autorizados en la misma. Los registros de las cuentas bancarias indicadas son necesarios a partir del momento en que fue abierta la misma, y deben incluir tarjetas de firmas, documentos relacionados con la apertura de la cuenta, tarjetas de mayores de cuentas, estados de cuentas periódicos, registros de depósitos y retiros, instrucciones relaciones con el recibo o transferencias de fondos hacia o desde la cuenta, ya sea mediante fax, correo electrónico, o cualquier medio de comunicación. Correspondencia hacia, desde o a favor del titular(s) de la cuenta, memorándums relacionados con la cuenta, cheques de caja y documentación de compra de cheques de caja, saldos, fechas de cierre, inactividad o cualquier otro documento que posea la cuenta citada. Todo debidamente autenticado por los representantes del banco…” (Cf.f.33-34 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018] . La mayúscula pertenece al original), nombrando ese ente en el mismo acto un perito con el objeto de constatar o descartar posibles irregularidades en el ordenamiento jurídico panameño. La diligencia de inspección ocular fue llevada a cabo el viernes treinta de julio de dos mil cuatro, en territorio panameño, por medio de la Fiscala Primera Anticorrupción de la Procuraduría de la Nación, Licenciada Cecilia López, quien a solicitud del perito Nombre79, previamente nombrado para la realización de la diligencia, decomisó los siguientes documentos: “a) Los Estados de la cuenta de [Nombre02 215] . No. [Valor 041], desde el mes de agosto de 2002 a mayo de 2004. b) Solicitud de apertura de la cuenta [Nombre01 215]; comunicaciones cruzadas. c) Copia de transferencia de dinero realizada el 28 de abril de 2004, por el monto de B/.1,060,000,00. d) Copia de la escritura No.2,054 del 1 de mayo del 2002. f) Copia de los cheques a Nombre01 de [Nombre01 215]…” (Cf.f.49 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. La mayúscula pertenece al original). Una vez que la información estuvo en manos de las Autoridades Fiscales Panameñas, en estricto apego al derecho interno de ese país, fue revisada por la Unidad de Análisis Financiero para la Prevención del Blanqueo de Capitales y el Financiamiento del Terrorismo adscrita al Ministerio de la Presidencia de Panamá, al estar reportados los casos UAF-04-06-004 [Nombre 215]; UAF-04-06-005 O. Nombre01 R. y Cia. y UAF-04-06-006 Harcourt Holdings S.A., como sospechosos. Si se observa con atención, el procedimiento seguido en Panamá fue realizado conforme al derecho interno de ese país, ya que antes de remitir la información respectiva a Costa Rica, en esa Nación también se investigaron las cuentas solicitadas, siendo que al tenor del artículo 2 de TALM, en el informe sin número del catorce de julio de dos mil cuatro, de la Unidad de Análisis Financiero para la Prevención del Blanqueo de Capitales y el Financiamiento del Terrorismo, dependiente del Ministerio de la Presidencia, los funcionarios de esa entidad, corroboraron que los supuestos delitos por los que nuestro país como Estado Requirente estaba investigando a esas empresas y a los imputados [Nombre01 018] y [Nombre01 225], estuvieran tipificados también en Panamá como Estado Requerido, descartándose además, la comisión de posibles acciones delictivas en ese país vecino. Justamente, como resultado de las investigaciones realizadas por el Estado Panameño, el informe enviado a Costa Rica determinó que: “…Uno de los clientes aparece publicado en el diario de Costa Rica, donde se le menciona en una investigación por coacción, amenazas graves, falsedad ocultación y destrucción de documentos relacionados con la Caja Costarricense del Seguro Social./Que la Fiscalía General de Costa Rica, hizo solicitud de asistencia judicial librada por el Fiscal General de Costa Rica a Panamá de dichos señores por enriquecimiento ilícito, peculado y otros./Que estos casos han sido solicitados a la UAF, mediante el Oficio No. 2772 de la Fiscalía Primera Anticorrupción de la Procuraduría General de la Nación de Panamá./En consideración al punto antes expuesto, consideramos que este caso tiene mérito para que sea investigado por las autoridades competentes…” (Cf.f.134 del Ampo Prueba No.588, Asistencia Judicial de Panamá, [Nombre01 018]. El suplido es nuestro). A partir de las anteriores conclusiones, es posible afirmar que la remisión de la información a la Procuraduría General de la República Costarricense por parte del Estado Requerido, se presentó una vez que esa Nación corroboró el requisito de bilateralidad de las conductas delictivas en ambos países, ya que si esa comprobación no se hubiese presentado, por el artículo 6 del TALM, Panamá como Estado Requerido habría tenido la potestad de denegar la asistencia, razón de más para considerar que dentro del procedimiento contenido en el TALM, el dictado de una resolución judicial que decretase coercitivamente la obtención de esa prueba, habría implicado sin mayor razonamiento, una flagrante violación a la soberanía del Estado Panameño y a las facultades que el mismo artículo 6 del TALM, le otorga como Estado Signatario. En definitiva, es criterio de la mayoría de esta Sala, que en el sub júdice para la obtención de la prueba 588 en Panamá era innecesaria la orden o aval de un Juez costarricense, por lo que se declara con lugar el reclamo del Ministerio Público dirigido contra la prueba 588 recabada en Panamá por medio TALM y se anula la sentencia impugnada en cuanto absuelve a los imputados [Nombre01 033], [Nombre 006], [Nombre 028], [Nombre 018], [Nombre 041], [Nombre 001] y [Nombre 022], por lo que deberá el Tribunal de Apelación de Sentencia Penal, con diversa integración y en estricto apego a las competencias otorgadas en el artículo 465, de la Ley 8837, del tres de mayo de dos mil diez, realizar un nuevo examen integral de esta prueba junto con las restantes probanzas del caso.” (El resaltado es del original). Como se observa, con ocasión del recurso de casación planteado por el Ministerio Público, la Sala Tercera resolvió el reclamo que aquí formulan los recurrentes, desestimándolo. No solo concluyó que la prueba N° 588 es lícita, sino que ordenó que sobre esa premisa se efectúe el reenvío ordenado, de ahí que este tribunal no tenga competencia para resolver el punto. Se trata de una situación que no es de extrañar, ya que en buena técnica impugnaticia, los límites del reenvío son definidos por el órgano revisor que lo ordena. Es importante subrayar que si bien esta decisión, Nombre02 como otras que adoptó la Sala Tercera, no se consignaron en la parte dispositiva, esto en modo alguno libera a estos jueces de segunda instancia de la obligación de respetarlas, ya que la sentencia de casación, como cualquier otra, es una unidad lógico jurídica que debe ser comprendida de forma integral. Aunado a esto, también es necesario añadir que no se desconoce que el criterio expuesto por la Sala Tercera en este asunto es distinto al asumido por ese mismo despacho (integrado por magistrados titulares) en el expediente Nº 04-005356-0042-PE, específicamente, en la resolución Nº 499 de las 11:45 horas del 11 de mayo de 2011 y en la cual, por voto de mayoría, se declaró la nulidad de la prueba recabada en Panamá por medio del Tratado de Asistencia Legal en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (Nombre06.), Nombre02 como la de los elementos probatorios que derivasen de esta. Sin embargo, la contradicción que pueda presentarse entre las sentencias antes referidas, o entre la presente resolución y la N° 499 mencionada, es un problema que eventualmente, si ese fuera el caso, deberá resolver la citada Sala, siendo que a este Tribunal de Apelación de Sentencia Penal lo que le corresponde es examinar los recursos en los términos que ordenó el órgano superior para este caso concreto, a saber, partiendo como premisa de la legitimidad de la prueba Nº 588. Dicho lo anterior, los suscritos concluyen que los demás vicios que se reclaman en las impugnaciones (donde se cuestionan otros argumentos adicionales expuestos por el tribunal de mérito para, a pesar de no haberse contado con una orden dictada por un juez costarricense, legitimar la prueba N° 588, es decir, se trata de reproches adicionales pero Nombre11 relacionados con el cuestionamiento de la legitimidad de esa prueba N° 588, siendo que esta -se reitera- ya fue establecida y declarada por la Sala Tercera), a la luz del criterio expuesto por la Sala de Casación para este caso, resultarían inconducentes, al punto que -incluso- admitiendo hipotéticamente su existencia, lo resuelto se mantendría incólume. El a quo señaló que no existió una resolución de un juez nacional que levantase el secreto bancario de la cuenta de [Nombre01 215] en el caso conocido como CAJA-Nombre01 y que la misma era indispensable (así se puede extraer de los folios 15.336 y 15.337 frente del tomo XXXI). No obstante esto, para el voto de mayoría, la prueba N° 588 (que es, en esencia, prueba documental relacionada con la mencionada cuenta bancaria y que llegó al país en septiembre de 2004), es lícita, por lo que de seguido se dirá: i) [Nombre01 158], en su condición personal y como apoderado generalísimo sin límite de suma y único accionista de la compañía [Nombre01 215]., constituida en Panamá, autorizó el 17 de mayo de 2010 la obtención y uso de la documentación bancaria obtenida en ese país correspondiente a la cuenta corriente N° [Valor 041] del BAC International Bank (Panamá) Inc., de su representada (f. 15.338 frente a 15.372 frente); ii) hay pruebas independientes y previas a la N° 588 que también orientaban la misma línea de investigación: “Véase, por ejemplo, que de acuerdo con las publicaciones periodísticas de la prueba N° 592.9 “Monitoreo de prensa escrita del 9 al 31 de diciembre de 2004”, folios 1, 5 y 6 al 11, es mediante un reportaje de Nombre49 y Nombre80, periodistas de un medio escrito de circulación nacional, que el 21 de abril de 2004 se informa a los lectores sobre una casa ubicada en [...] que el entonces Presidente Ejecutivo de la Caja Costarricense del Seguro Social e imputado en este proceso, [Nombre01 018], arrendaba a quien para ese momento era el gerente financiero de la Corporación Fischel. También en la publicación del 27 de abril de 2004 de folio 36, prueba Nº 682.1, se da a conocer la comparecencia de [Nombre01 018] al Congreso de la República luego de su renuncia como Presidente Ejecutivo de que la Caja Costarricense del Seguro Social, momento en el cual el acusado reconoce haber ofrecido $700.000 para comprar la casa [...] que le fuera alquilada por [Nombre01 225], señalando que en agosto y octubre visitó la vivienda la cual fue la única que le gustó a él y su familia, casa que luego fue adquirida por el exgerente financiero de la Corporación Fischel, partícipe en la venta de bienes y servicios a la Caja Costarricense del Seguro Social por sumas millonarias, indicándose en esa oportunidad que el diario a cargo de la divulgación de estos hechos había solicitado y recibido de la C.C.S.S. información atinente a las diferentes contrataciones descritas. Lo anterior reviste importancia porque según la solicitud de folios 14 al 28 de la prueba Nº 588 dicha información la gestionó la Fiscalía ante la Procuraduría General de la República el 20 de mayo de 2004 -conforme al sello de folio 2- y la documentación bancaria relacionada con la cuenta de [Nombre01 215]. fue recibida por la Fiscalía el 10 de setiembre de 2004, por lo que claramente se advierte la existencia de dos fuentes probatorias independientes y anteriores a dicha gestión investigativa del Ministerio Público. Obsérvese que la revelación de los hechos con base en el reportaje periodístico original y las posteriores publicaciones, según las pruebas Nº 529.9 y Nº 682.1 se remontan a abril de 2004, sea más de un mes antes de que la Fiscalía tomara la iniciativa para la recolección de la información bancaria descrita, por lo que podría hasta afirmarse, sin lugar a equívocos, que fueron las divulgaciones en la prensa nacional las que desencadenaron la investigación en sede judicial del conocido caso Caja-Fischel. Por otra parte, la defensa también cuestiona la solicitud y la orden de levantamiento del secreto bancario dictada por el juez penal respecto de la cuenta bancaria de [Nombre 058]. en el Banco Cuscatlán y la autorización de [Nombre01 028] y [Nombre01 221] para que se obtuviera información de dicha cuenta, temas que ya fueron analizados y que, por ello, ahora únicamente se traen a colación para abordar el alegato de que esta prueba también es ilícita -según la defensa- por ser dependiente de la documentación bancaria de la cuenta de [Nombre01 215] .. Nuevamente debe señalarse que, en criterio de esta integración, la documentación bancaria que conforma la prueba Nº 588 es lícita pero, por un ejercicio intelectual tendente a garantizar los derechos de los encartados y el debido proceso, asumiendo hipotéticamente que en la recolección de la prueba Nº 588 no mediara el levantamiento del secreto bancario ordenado por un órgano jurisdiccional y que tampoco se contara con la autorización legal y válida del titular de la cuenta o de su administrador para la obtención y uso de tal documentación, igual existen fuentes anteriores e independientes a esa información. Como antes se explicó, los datos revelados por la prensa nacional gestaron la investigación fiscal en el referido caso "Caja Fischel" y en el supuesto ahora valorado cabe una conclusión similar. Las solicitudes de la fiscalía para el levantamiento del secreto bancario de la cuenta de [Nombre01 058]. en los diversos entes financieros que integran el Grupo Cuscatlán son del 17 y el 29 de setiembre de 2004. Las resoluciones que las acogen datan del 21 y 29 de setiembre de 2004 y la información bancaria pedida es entregada al órgano acusador los días 28 y 29 de setiembre de 2004 , según notas de folios 5 y 90 del Tomo I. Empero con antelación a que la Fiscalía conociera los datos solicitados ya los medios de comunicación nacional revelaban detalles sobre [Nombre01 058]. y su ligamen con [Nombre01 091] y directivos del Instituto Costarricense de Electricidad. Nótese que el reportaje de los periodistas Nombre09 y Nombre03, folio 19 de la prueba Nº 592.1, si bien es publicado el 28 de setiembre de 2004, en un medio de circulación nacional, la información había sido recopilada desde el día anterior, sea el 27 de setiembre de 2004. La noticia comunica que dos directivos del ICE habían recibido $3.6 millones que provenían de [Nombre02 060] , indicándose sobre los giros de dinero a [Nombre01 064] y a [Nombre 022] a través de la sociedad del último [Nombre01 300] y de la esposa del segundo, señora [Nombre02 080]. Se decía que los fondos fueron transferidos de la cuenta que [Nombre 058] mantenía en el Cuscatlán International Bank y que había recibido tales dineros de la cuenta de [Nombre01 060] con el Banco ABN AMRO. Igual se mencionaba que representantes del medio periodístico, el día 27 de setiembre, habían contactado vía telefónica a [Nombre01 080] en su casa de habitación y ésta les había manifestado que daría información más tarde aunque después no atendió sus llamadas, mientras que [Nombre01 064] no respondió los mensajes y [Nombre01 022] explicó que tenía problemas de sordera, intentándose también -infructuosamente- la consulta a [Nombre01 041], aunque sí medió comunicación con [Nombre01 095] y con [Nombre01 028]. Se informaba que de la cuenta de [Nombre 058]. se habían girado pagos a sociedades, personas y políticos, citándose la transferencia de $100.000 a [Nombre 213], quien explicó que se trató de una donación de [Nombre02 091] a la campaña política del mandatario Nombre81; allí también se hacía referencia a dineros recibidos por [Nombre01 063] que pasaron por la cuenta de [Nombre 215]. del presidente de la Corporación Nombre01[158] y a otras personas consultadas por los y las periodistas. Al folio 20 de la prueba Nº 592.1 (cuyos originales aparecen agregados a folios 2 y 3 del Tomo I) aparece también la publicación de la entrevista periodística realizada ese mismo día a [ombre01 213] , quien reconoció haber recibido la contribución de [ombre01 091] a la campaña de Nombre81 luego de una reunión en la cual habían estado presentes el acusado [ombre01 041] , gerente de dicha empresa, y un "señor francés” cuyo ombre01 les dijo a los periodistas que no recordaba. Por otra parte, a ese momento la documentación bancaria descrita lo que revela son las transferencias de [ombre01 060] a [ombre01 058], pero no su análisis pormenorizado, lo cual es posible mucho tiempo después con la intervención y estudio de los peritos de la Sección de Estudios Contables y Financieros del OIJ. De ahí que tampoco se pueda desdeñar que en el interín, es decir mientras que los datos bancarios marcan nuevos derroteros en la investigación y su concordancia con cada uno de los implicados, otras fuentes reveladoras de información también van surgiendo de manera independiente a la citada fuente Nº 588. Son múltiples los elementos que podrían citarse, pero valgan para el ejemplo:

-toda la información recopilada por parte de los declarantes [Nombre02 116] y [Nombre01 164], empleados de la Corporación [Nombre02 091], quienes relatan sobre reuniones mantenidas con el acusado [Nombre02 041] a principios de octubre de 2004 a raíz de las revelaciones periodísticas que ligaban a [Nombre01 091] con el pago a funcionarios públicos y cómo en la segunda reunión que mantuvieron con [Nombre01 041], al preguntarle sobre lo señalado por los diarios (respecto de pagos a [Nombre01 274] hermana de [Nombre01 041], a un hijo de esta señora y a [Nombre01 001], por parte de [Nombre01 058], todo con intervención de [Nombre01 041]), éste aceptó haber participado en tales pagos y les comentó sobre 4 personas a quienes se habían hecho los mismos, sea a: [Nombre01 022], [Nombre01 001], [Nombre01 064] y [Nombre01 018], último a quien ni siquiera habían mencionado las informaciones periodísticas; -la prueba Nº 110 conformada por las autorizaciones que desde el 20 de setiembre de 2004 tanto la señora [Nombre02 221] como el acusado [Nombre01 028] habían dirigido al Grupo Financiero Cuscatlán de Costa Rica S.Nombre46. y al Cuscatlan International Bank and Trust Co Ltd., expresando que, en forma irrevocable e ilimitada, autorizaban el suministro de cualquier tipo de información y/o documentación que hayan solicitado o soliciten en el futuro cualquiera de las autoridades supervisoras del sistema bancario nacional o judiciales costarricenses de las operaciones de [Nombre02 058]., por lo que también esta sería una vía independiente y anterior para la obtención de la documentación bancaria descrita; -la documentación aportada por la Corporación [Nombre 060] , entre otra las pruebas Nº 19 a Nº 22, Nº 23, Nº 24, Nº 25, Nº 26, Nº 27, Nº 28, Nº29, Nº 30, Nº 31, Nº32, Nº 33, Nº 34, Nº 35, Nº 36, Nº 36, Nº 37, Nº 38, Nº 39, Nº 40, Nº41, Nº 42, Nº 67, Nº 69, Nº 71, Nº 74 y Nº 75 últimas referidas a los reportes remitidos por [Nombre02 114]. y por [Nombre 058]. en relación con los contratos de consultoría; Nombre02 como la que fue secuestrada en la empresa [Nombre 091]: Nº 55, Nº 57, Nº 59, Nº 80, Nº 81 y Nº 630; -las declaraciones de testigos como [Nombre01 173] y Nombre01, quienes no sólo suministran información relacionada con los hechos a la Fiscalía, sino que también aportan documentación que luego es utilizada como prueba por esa representación, entre otra: Nº 267 y Nº 404; -la documentación secuestrada en las instalaciones del Instituto Costarricense de Electricidad: Nº 1, Nº 2, Nº 3, Nº 4, Nº 5, Nº 6, Nº 7, Nº 8, Nº 9, Nº 10, Nº 11, Nº 17 y Nº 19, o solicitada a otras dependencias gubernamentales: Nº 15, Nº 16, Nº 82, Nº 85.

En conclusión, aunque para este tribunal existe absoluta certeza de que la prueba Nº 588 es lícita y sólo esa constatación daría lugar al rechazo de la protesta, yendo más allá y a partir de un ejercicio hipotético con el cual se asuma como espuria tal fuente, lo cierto es que tampoco sería procedente la petición formulada por la defensa porque existen fuentes independientes y previas a la revelación bancaria que se tilda como ilícita, tanto en lo que respecta a las del caso "Caja-Fischel" como a las que interesan a este.” (F. 15.377 a 15.381 frente, el subrayado es del original); iii) en esta causa, la prueba N° 588 recabada en otro proceso, constituye además de una prueba, una noticia criminis. La relación de [Nombre01 018] con el caso c.c. Caja-Nombre01 salió a la luz por medio de una investigación periodística hecha pública en abril de 2003, un mes antes de que se pidiese la documentación bancaria a Panamá. La prueba se solicitó para esclarecer la compra de una [...], así como la relación entre [Nombre01 018] , [Nombre01 225], la C.Nombre82 y la empresa Fischel. Esta información llegó a la Fiscalía el 10 de septiembre de 2004. Ahora, encontrar en ese proceso y en particular, en esa documentación, constancia de depósitos de SNQC S.A. a la cuenta de [Nombre01 215]. fue un hallazgo casual, porque lo buscado era información atinente a la relación entre la C.C.S.S., la corporación Fischel/ [Nombre 215] y [Nombre01 018]. En ese tanto, dice el voto de mayoría, en cuanto a SNQC S.A. la prueba N° 588 es una noticia criminis (f. 15.381 a 15.383 frente). iv) A partir de las investigaciones legítimas que se estaban realizando, era inevitable y/o seguro que se descubriese las conexiones entre [Nombre01 060], [Nombre01 058]. y el I.C.E. (F. 15.387 A 15.393 frente). Como ya se expuso líneas atrás, los recurrentes entienden que los anteriores razonamientos no son legítimos. Al respecto argumentan que el consentimiento de [Nombre01 158] otorgado años después de recabada la prueba, no permite eliminar el hecho de que la información fue recabada sin contar con una orden judicial que levantase el secreto bancario. Del mismo modo, dicen los impugnantes, las pruebas que cita el tribunal de mérito como autónomas y posteriores a la N° 588, no son tales, al punto que sin esta, la causa no se hubiese iniciado. Lo mismo cabe en cuanto a lo que el a quo estimó como hallazgos inevitables o casuales en la causa CAJA-Nombre01 y que no tienen tal carácter, o en cuanto a la consideración de la prueba N° 588 como una noticia criminis en lo que a este procedimiento respecta. Se trata de argumentos que de forma infructuosa se formularon para dotar de legalidad a una prueba que desde sus orígenes, presenta un defecto absoluto que no puede ser subsanado, a saber, el haber sido obtenida sin contar con el aval de un juez costarricense. Tras examinar lo antes señalado, este Tribunal de Apelación de Sentencia Penal concluye que, incluso asumiendo que los razonamientos expuestos por el voto de mayoría no son de recibo, se trata de planteamientos que estaban destinados a legitimar una prueba que, sin dichos correctivos, para el tribunal de instancia era ilícita por haber sido obtenida sin orden jurisdiccional. Sin embargo, siendo que la Sala Tercera concluyó que esa orden era innecesaria, todos esos razonamientos y los yerros que puedan contener pierden relevancia, al punto de que bien pueden suprimirse hipotéticamente sin que esto suponga una modificación de lo acordado. Consecuencia de lo anterior, también su cuestionamiento por parte de la defensa resultaría inconducente. Dicho en otras palabras y a modo de ejemplo, partiendo del criterio expuesto para este caso por la Sala de Casación, la prueba N° 588 no es lícita porque [Nombre01 158], años después, avalase el uso de la información; porque hubiese prueba independiente y autónoma a la N° 588 que también orientase las pesquisas hacia [Nombre01 058]; o porque el papel de la citada sociedad anónima fuese un hallazgo casual o inevitable. Todos argumentos en extremo rebatibles. Es lícita, según la Sala Tercera, porque tratándose de prueba que se recabaría en Panamá al amparo del T.A.L.M., era innecesaria una resolución de juez nacional que levantase el secreto bancario. Por tanto, todos los demás argumentos invocados por el voto de mayoría para legitimar la prueba, a los que -se reitera- debió acudir por considerar que era ilícita dada la ausencia de orden jurisdiccional, pierden trascendencia. Finalmente, en cuanto al documento que presentó [Nombre01 158] a este tribunal el día 27 de agosto de 2015 (cfr. 176.925 frente, tomo XLIV), en el cual manifestó su voluntad de revocar el consentimiento que había dado para que se usara en este procedimiento la información bancaria de la empresa [Nombre01 215], basta con subrayar que la decisión de la Sala Tercera, en el sentido de considerar legítima la prueba N° 588, no se apoyó en ese consentimiento, sino en la conclusión de que la orden de un juez nacional era innecesaria tratándose de prueba a obtener en Panamá. Por lo anterior, tan intrascendente es que el a quo apelase a ese argumento para legitimar la prueba referida, como lo es que [Nombre01 158], con su revocatoria, pretendiese restarle todo valor. Por lo anterior, se declaran sin lugar los reproches formulados por el licenciado Wilson Flores Fallas, defensor de [Nombre01 006] y por los imputados [Nombre01 001], [Nombre01 028], [Nombre01 041] y [Nombre01 018], a título personal.

XXIII.- Recurso de casación interpuesto por [Nombre01 001], [Nombre01 028] , [Nombre01 041] y [Nombre01 018], a título personal. Único motivo. Infracción del artículo 369 inciso j) C.P.P. Punto séptimo. Se pretende validar la prueba obtenida mediante el levantamiento del secreto bancario de la cuenta de [Nombre 058] en el Banco Cuscatlán en Bahamas, mediante una autorización de [Nombre01 028] que se lee erradamente. Según los recurrentes, la autorización que se analizó a folio 887 (foliatura de la sentencia), se interpretó erróneamente. Las cinco notas suscritas por [Nombre01 028] y [Nombre01 221], mediante las cuales autorizan la entrega de información relacionada con la empresa [Nombre 058] a AUTORIDADES QUE SUPERVISAN EL SISTEMA BANCARIO NACIONAL O A LOS BANCOS EN BAHAMAS O AUTORIDADES JUDICIALES DE COSTA RICA (prueba N° 110), dicen algo distinto a lo que estima el tribunal: “No se autoriza la entrega a la Fiscalía sin orden de Juez, ya que ese órgano no es una autoridad judicial. Por ello cuando se analiza ese levantamiento del secreto bancario de las cuentas de [Nombre01 058] en el Banco Cuscatlán, tanto en el Cuscatlán International Bank en Bahamas como en los pertenecientes al sistema bancario nacional es preciso tener presente esta nota, con sus consideraciones y limitaciones: autoridades judiciales, no a la Fiscalía. Toda la cronología de dicha entrega de información consta desde el folio 890 al 889 y se puede leer fácilmente. La primera orden de levantamiento de secreto bancario NO COMPRENDE NI AL GRUPO FINANCIERO CUSCATLÁN NI AL CUSCATLÁN INTERNATIONAL BANK, lo que se puede concluir fácilmente en el folio 883 y de la lectura de los Folios 3841 al 3858 de los autos, que contiene la orden judicial de la Jueza Vargas Bonilla. Se refiere la orden a que se levante el secreto bancario de las cuentas de [Nombre01 058] en las entidades del Sistema Bancario Nacional, sin incluir evidentemente al Cuscatlán International Bank, no solo porque no pertenece a dicho Sistema, sino porque unos días después por orden judicial se amplió ese levantamiento. La orden del 21 de septiembre la cumple el señor [Nombre01 229] los días 27 y 28 de septiembre, según se indica en el mismo Folio 883 de la sentencia y consta a folios 6 al 13, 15 al 79 y 82 al 89 del Tomo I del legajo principal, de los cuales se observa que el referido señor [Nombre01 229] se extralimita en la orden judicial recibida y remite información del Cuscatlán International Bank, entidad no incluida en la orden que no cubría ni a esa entidad ni al Grupo Financiero Cuscatlán, como se verá. Es al Folio 6 en que constan por primera vez en la causa la presencia de [Nombre01 091], mediante las transferencias presuntamente enviadas por ella a [Nombre01 058]. Esta evidencia se obtuvo ilegalmente, ya que no había orden judicial que comprendiera a las cuentas de [Nombre01 058] en esa entidad bancaria internacional, no existía autorización de [Nombre01 028] ni de [Nombre01 221] de entregar información sin orden de Juez, que no la había ni existía solicitud siquiera de levantar el secreto bancario del Grupo Financiero Cuscatlán. Por ello es falso que esa documentación se hubiere suministrado con orden de Juez o con autorización de la empresa dueña de la cuenta y su contenido y alcances deviene en ilegales y deben excluirse de los autos y suprimirse plenamente de la sentencia y su valoración. A mayor abundamiento, es mediante la orden del Juez Nombre60 del 29 de septiembre mediante la cual se levanta el secreto bancario en el Grupo Financiero Cuscatlán y no antes, lo que consta en folios 3829 al 3839 del Tomo IX y se refiere la sentencia en Folio 880. Ya para esa fecha el señor [Nombre01 229] había enviado ilegalmente y sin orden de Juez ni autorización del dueño de la cuenta lo relacionado con las operaciones de [Nombre01 058] en el Cuscatlan International Bank, lo que genera su invalidez y necesaria exclusión del proceso. Es claro que ante ese envío ilegal la Fiscalía corrió un día después a enmendar el error de [Nombre01 229] , lo que se entiende de parte de ellos, pero jamás se puede admitir la actitud complaciente de las juezas de mayoría en avalar la utilización de esta prueba espuria e ilegal …” (F. 17.276 y 17.277 frente).

XXIV.- No llevan razón los recurrentes: Según se tuvo por demostrado, a [Nombre01 028] le correspondía recibir el dinero proveniente de [Nombre02 060] en la cuenta corriente número [Valor 012] de [Nombre 058] . con el Cuscatlan Internacional Bank & Trust Co. Ltd. Una vez con tales fondos a su disposición, debía proceder a girar instrucciones al banco indicado para hacer la distribución de los dineros. Para la defensa, la información obtenida en relación con la mencionada cuenta es ilegítima, porque: i) según se desprende de las autorizaciones dadas por los titulares de la cuenta ([Nombre01 028] y [Nombre01 221], prueba Nº 110), la autorización se giró para entregar información a las autoridades que supervisan el sistema bancario nacional o a los bancos en Bahamas, o a las autoridades judiciales en Costa Rica y no a la fiscalía, que no es un órgano judicial; ii) la primera orden de levantamiento del secreto bancario no incluía al Grupo Financiero Cuscatlán ni al Cuscatlán Internacional Bank, sino solo el sistema bancario nacional, siendo hasta después que se amplió la misma. Aquella orden fue cumplida por [Nombre01 229], persona que se extralimitó, pues remitió información del Cuscatlán Internacional Bank. Por ello, es falso que la documentación se hubiese suministrado con orden de juez y con autorización de los titulares; iii) es con la orden del juez Nombre60, del 29 de septiembre, que se dispuso levantar el secreto bancario en el Grupo Financiero Cuscatlán. No obstante, para esa fecha, [Nombre01 229] ya había remitido toda la información generada por el Cuscatlan International Bank. En estos reclamos, no les asiste razón a los impugnantes. Como bien se explica en la sentencia recurrida, específicamente de folio 15.244 a 15.255 frente del tomo XXXI y de folio 15.665 a 15.669 frente del tomo XXXII, lo que confirmó esta cámara con el estudio de la prueba Nº 110, folder rotulado “Banco Cuscatlán [Nombre01 058] Documentos Acta 370849 Folios 216 (8 folios)” , en este folder hay dos notas suscritas por [Nombre02 221], con fecha 20 de septiembre de 2004. Una está dirigida al Grupo Financiero Cuscatlán Costa Rica S.Nombre46. y otra al Cuscatlan Internacional Bank & Trust Co. Ltd., en las Bahamas. En ambas esta persona autoriza “…en forma irrevocable e ilimitada, a efecto de que suministren cualquier tipo de información y/o documentación que hayan solicitado o soliciten en el futuro cualquiera de las autoridades que supervisan el Sistema Bancario Nacional o autoridades judiciales de la República de Costa Rica, en relación con cualquiera de las operaciones tanto activas como pasivas, que ha mantenido [Nombre02 058]…”. En la nota que dirige al Grupo Financiero Cuscatlán de Costa Rica S.A., la señora [Nombre02 221] añade lo siguiente: “…que ha mantenido [Nombre 058]., … con las compañías subsidiarias del Grupo Financiero Cuscatlán de Costa Rica S.A., incluyendo al Cuscatlan Internacional Bank & Trust Co Ltd., con domicilio en Bahamas.”. De igual forma, en la nota que se remitió al Cuscatlan Internacional Bank & Trust Co Ltd., agregó: “…que ha mantenido [Nombre02 058].,… con el Cuscatlan Internacional Bank & Trust Co Ltd., domiciliada en las Bahamas, empresa que forma parte del Grupo Financiero Cuscatlán de Costa Rica, S.A.” (cfr. folios 3 y 4 frente). Lo mismo cabe decir en cuanto a [Nombre01 028], pues en el mismo folder, a f. 5 y 6 frente, se aprecian dos autorizaciones suscritas por él en los mismos términos expuestos y que igualmente fueron remitidas el día 20 de septiembre de 2004. Ahora, a folio 7 frente se aprecia otra nota suscrita por [Nombre01 028], con fecha 21 de septiembre, dirigida al Cuscatlan Internacional Bank & Trust Co Ltd., en la autoriza, “…en forma irrevocable e ilimitada, a efecto de que suministren cualquier tipo de información y/o documentación que hayan solicitado o soliciten en el futuro cualquiera de las autoridades que supervisan el Sistema Bancario Nacional o autoridades judiciales de la República de Las Bahamas, en relación con cualquiera de las operaciones tanto activas como pasivas, que ha mantenido [Nombre01 058]… con el Cuscatlan Internacional Bank & Trust Co Ltd., domiciliada (sic) en las Bahamas, empresa que forma parte del Grupo Financiero Cuscatlán de Costa Rica, S.A.” (F. 7 frente). Además de estas autorizaciones, tenemos que a solicitud del Ministerio Público se ordenó levantar el secreto bancario a las 16:40 horas del 21 de setiembre de 2004 de varias personas jurídicas, entre las que figura [Nombre01 058] . Se ordenó al Banco Cuscatlán y a Cuscatlán Puesto de Bolsa entregar la información sobre los movimientos de la sociedad anónima [Nombre01 058]. (así, f. 3.863, tomo IX). Posteriormente, a las 8:12 horas del 29 de setiembre de 2004, el Juzgado Penal del Segundo Circuito Judicial de San José ordenó el levantamiento del secreto de la información bancaria y bursátil relacionada con todos y cada uno de los entes financieros que componen el Grupo Financiero Cuscatlán (cfr. f. 3.839 frente). Dicen los recurrentes que [Nombre01 229], para entonces secretario de la junta directiva del Grupo Financiero Cuscatlán de Costa Rica S.A., remitió la información del Cuscatlan International Bank & Trust Co. Limited a pesar de que en la orden judicial emitida días antes no se levantó el secreto bancario para ese banco en particular, o bien para todo el Grupo Financiero Cuscatlán y, por ende, se equivocó el a quo al concluir que tal proceder estaba amparado en la citada orden. Asimismo, según los impugnantes, tampoco se puede argumentar que la información se obtuvo al amparo de una autorización de los titulares de la cuenta, ya que estos solo autorizaron suministrar la información a las autoridades judiciales y el Ministerio Público no es una de ellas. Se trata de reclamos que para esta cámara no son de recibo, por varias razones. La primera, porque aunque se admita que el señor [Nombre01 229] remitió el 28 de septiembre de 2004 información de las transferencias de fondos al exterior realizadas por [Nombre02 058]. a través del departamento internacional del Banco Cuscatlán de Costa Rica S.A., Nombre02 como de las transferencias internacionales recibidas en la cuenta corriente de [Nombre01 058]. a través del Cuscatlan International Bank & Trust Co. Limited, siendo que la orden judicial emitida días atrás solo comprendía al Banco Cuscatlán y a Cuscatlán Puesto de Bolsa, es innegable que los datos referidos hubiesen sido descubiertos de forma inevitable, a partir de las investigaciones que se estaban llevando a cabo hasta ese momento. Nótese que para esa fecha se contaba con una orden judicial que requería de parte del Banco Cuscatlán toda la información existente en torno a los movimientos hechos por la empresa [Nombre01 058]. a través suyo. Además, existían varias autorizaciones suscritas desde días antes por el mismo imputado [Nombre01 028] y por su esposa, [Nombre 221], dirigidas al Grupo Financiero Cuscatlán Costa Rica S.A. y al Cuscatlan International Bank & Trust Co. Ltd., para que se facilitase a las autoridades judiciales toda la información y documentación sobre las transacciones en que estuviese involucrada dicha sociedad. De esa manera, ya el órgano requirente estaba sobradamente enterado de que las transacciones que hacía [Nombre01 058] . ocurrían al amparo de ese conglomerado financiero y que de este era parte el Cuscatlan Internacional Bank & Trust Co. Ltd. Es decir, aunque se admita hipotéticamente (y se subraya el carácter hipotético de la situación) que [Nombre01 229], en un primer momento, remitió información no comprendida en el levantamiento del secreto bancario que se dispuso el 21 de septiembre de 2004, el vicio no conduciría a la exclusión de la prueba mencionada, pues en razón de las mismas autorizaciones giradas por los titulares, Nombre02 como del avance mismo de las investigaciones, que ya para entonces, además de señalar a la empresa [Nombre02 058]. como involucrada en hechos eventualmente criminales, daba cuenta de que dicha sociedad tenía operaciones con el Banco Cuscatlán, es indudable que los datos manejados por el Grupo Financiero Cuscatlán Costa Rica S.A., al cual pertenece ese banco, como también el Cuscatlan International Bank & Trust Co. Ltd., serían descubiertos. Por otra parte, todos los movimientos bancarios realizados por orden de [Nombre01 028] tuvieron lugar en Costa Rica, con lo cual, al solicitar información al Banco Cuscatlán sobre las transacciones que realizó la sociedad [Nombre01 058]. a través suyo (extremo que expresamente estaba comprendido en la primera orden emitida por la autoridad jurisdiccional correspondiente), también estaban comprendidas las operaciones hechas por esa sociedad anónima al amparo del contrato de corresponsalía directa que el Cuscatlan International Bank and Trust Co. Ltd. mantenía con el Banco Cuscatlán de Costa Rica S.A. En tercer lugar, esta cámara considera razonable lo indicado por el tribunal de mérito, a saber, que la documentación entregada por [Nombre01 229] el 28 de septiembre, en respuesta a la orden de levantamiento del secreto bancario emitida el día 21 de septiembre de 2004 por la jueza Damaris Vargas Bonilla (orden que fue notificada ese mismo día en las oficinas centrales del Banco Cuscatlán, cfr. folio 3.869 del tomo IX), estaba en el país, a disposición de esta empresa, ya que las operaciones fueron efectuadas en territorio nacional y, como se ha venido señalando, el grupo financiero tenía para entonces sede en Costa Rica, con lo cual no podría afirmarse, o no sin especular, que la misma se obtuvo de otras entidades bancarias de forma irregular. Finalmente, este tribunal tampoco estima que se hayan interpretado erróneamente las autorizaciones emitidas por [Nombre01 028] y [Nombre01 221]. Véase que en estas se avala que las autoridades judiciales del país se impongan de toda la información relacionada con las transacciones efectuadas por [Nombre02 058]. que esté en poder del Grupo Financiero Cuscatlán de Costa Rica S.A., Nombre02 como del Cuscatlan International Bank and Trust Co. Ltd., lo que justamente sucedió aquí. La información suministrada el día 28 de septiembre de 2004, cuestionada por los impugnantes al entender que la orden de levantamiento del secreto bancario no comprendía al grupo financiero y dentro de él, al Cuscatlan International Bank and Trust Co. Ltd., fue remitida por [Nombre01 229] como respuesta a la orden judicial emitida por la jueza Vargas Bonilla. Tan es Nombre02 que en el documento de folio 5 frente del tomo I, figuran como destinatarios tanto la Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios, como el Juzgado Penal del Segundo Circuito Judicial de San José. Es decir, no obstante que el aval de los titulares del derecho fundamental hubiese bastado para que se procediese a recabar la información sin orden judicial, en el caso particular se procedió a dictar la citada orden, siendo que si se remitió la información fue como consecuencia de la misma y en ese tanto, también fue una autoridad jurisdiccional quien se impuso de su contenido, cumpliéndose con lo previsto en la misma autorización dada por [Nombre01 028] y [Nombre01 221]. Por lo expuesto, se declara sin lugar el motivo.

XXV.- Recurso de casación interpuesto por el licenciado José Miguel Villalobos Umaña, defensor particular de [Nombre01 018] y recurso de apelación de sentencia (así convertido) interpuesto por el imputado [Nombre01 018] a título personal, autenticado por el licenciado Hugo Santamaría Lamicq. En libelo visible de folios 17.241 a 17.263 frente del tomo XXXVI, el licenciado José Miguel Villalobos Umaña, defensor de [Nombre01 018], interpuso recurso de casación contra la sentencia Nº 167-2011, tantas veces mencionada. Posteriormente, mediante escrito visible a folios 172.745 a 172.767 frente del tomo XXXIX, el imputado [Nombre01 018], a título personal, procedió a convertir el recurso de casación interpuesto en uno de apelación de sentencia, manteniendo su contenido. Por lo anterior se proceden a resolver de manera conjunta, no sin antes advertir que las citas textuales que se harán a continuación corresponden al segundo. Primer motivo. Errónea aplicación de las reglas de prescripción consagradas en los artículos 31, 32, 33, 361, inciso a) y 369 del Código Procesal Penal. El tribunal concluyó en voto de mayoría, que la acción penal en contra de [Nombre01 018] no estaba prescrita. Por el contrario, el juez Camacho Morales acogió la excepción. Para el recurrente, el tema de fondo tiene que ver con 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 Nº 212 de ese día. Según el propio tribunal, de no haber sido por esa norma, la causa ya estaría prescrita, por lo que el recurso se dirige a cuestionar esta interpretación, que aplica incorrectamente las reglas de prescripción de la ley de rito y de la propia LCC, Nombre02 como algunos fallos de la Sala Constitucional que son vinculantes. En la sentencia se afirma que al no reducirse el plazo de prescripción a la mitad como lo establece el artículo 33 párrafo primero del Código Procesal Penal, por aplicarse lo dispuesto en el numeral 62 de la LCC, la acción penal prescribiría el 30 de noviembre de 2007 y no el 30 de mayo de 2006. Por ello, se considera vital establecer si el citado artículo 62 es aplicable en este asunto, ya que de no serlo, la acción penal estaría prescrita. El tribunal de mérito dice no compartir la tesis de la defensa, en el sentido de que se trata de una reducción de plazos para controlar la duración del proceso y no de un tema de prescripción. Esto es importante, pues si se trata de lo primero, se deben respetar los derechos adquiridos por el imputado. El control de la duración de proceso es un tema de derechos fundamentales, que deriva del artículo 41 de la Constitución Política, en cuanto contempla una justicia pronta. Sin embargo, aumentar los plazos de duración del proceso en perjuicio de los imputados, es sinónimo de aplicar de manera retroactiva de la ley en perjuicio de los derechos adquiridos de los justiciables. La posición de la defensa descansa en lo planteado en el voto Nº 4397-99 de la Sala Constitucional, dictado a las 16:06 horas del 8 de junio de 1999, que en su considerando VI afirma 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…” (F. 172.747 frente). Igual se indicó en la resolución Nº 428-00. Es decir, si son normas relativas al control de la duración del proceso no se pueden aplicar en perjuicio de los imputados, ya que afectan sus derechos adquiridos. Pero independientemente de lo anterior, en caso de discrepar de esta tesis y decidir que estamos ante normas de prescripción y que por tanto, pueden ser aplicadas retroactivamente, la Sala Constitucional ha dicho que debe existir norma expresa que autorice esa aplicación retroactiva. Por tanto, el punto a considerar es si esa previsión se dio en el artículo 62 LCC. Para definir lo anterior, lo primero que hay que considerar es el voto Nº 4397-99 de la Sala Constitucional, en lo que interesa, indica: “… LAS NORMAS NO PUEDEN REGIR LOS ACTOS PASADOS… EVENTUALMENTE PUEDE VALORARSE UN COMPORTAMIENTO PASADO CON UNA REGLA SANCIONADA CON POSTERIORIDAD, JUICIO QUE ESTÁ SUPEDITADO A UN PODER REGLADO… SOLO PROCEDE POR MANDATO EXPRESO DE LA LEY… EN MATERIA PROCESAL PENAL NO ESTÁ PROHIBIDO QUE LA LEY SE APLIQUE RETROACTIVAMENTE, SEGÚN ELLA MISMA ESTABLEZCA, ÚNICAMENTE RESPECTO DE LOS CASOS PENDIENTES…” (F. 172.747 frente). La Sala alude a todo tipo de normas y no solo a las de fondo, ya que el considerando donde se aborda el tema se denomina “De la aplicación de la ley procesal”. Es decir, si no existe una disposición expresa que permita aplicar normas no vigentes al momento de los hechos que se juzgan, tal aplicación no sería posible. Ahora, el tribunal acepta que la aplicación del artículo 62 a hechos ocurridos antes de su entrada en vigencia depende de una autorización legislativa, autorización que el a quo cree que existe. Al respecto, se explica en el recurso: “… Analicemos entonces la interpretación del Tribunal en su voto de mayoría. Al Folio 796 las Juezas afirman que el Artículo 62, aunque en realidad por un error excusable estiman que es el 60, sí contiene el presupuesto que hecha de menos esta Defensa. Afirman que ese legislador hizo referencia de manera genérica a todos los procesos en que se acusen delitos contra los deberes de la función pública y señala que ello se hizo SIN DISTINGUIR ENTRE DELITOS POR CAUSAS PENDIENTES O DE FUTURA INICIACIÓN. Ese es precisamente el error de las Juezas. No existe una previsión expresa, como lo exige la Sala, por lo que ellas acuden al expediente de estimar que no hay una exclusión expresa, cuando el razonamiento es el contrario: Si no hay una previsión expresa, no se pueden aplicar las normas del Artículo 62 a las causas pendientes sino exclusivamente a las de futura iniciación con posterioridad al 29 de octubre, fecha en que fue publicada la Ley 8422. No se trata de indicar que como no se excluye la aplicación a causas iniciadas anteriormente ello sea posible: la regla constitucional establecida por la Sala es la inversa, de no existir una previsión expresa, esa interpretación no es posible. Las Juezas admiten que no hay previsión expresa, sino no exclusión expresa, que no es lo mismo, sino más bien lo contrario, lo que evidencia el error argumentativo de la mayoría Es falso que el legislador haya especificado que esa disposición no reductora del plazo de prescripción a la mitad se aplicara a las causas pendientes, lo que el legislador hizo fue casualmente no indicarlo, lo que en vez de presumir su previsión, demuestra su no previsión y frente a ella solo se puede deducir que el Artículo 62 de la LCC solo rige para causas futuras a partir del 29 de octubre y no a las iniciadas anteriormente a esa vigencia, como es esta. No se trata de argumentar que el legislador no distinguió entre causas pendientes y futuras, más bien debe concluirse que en caso de haber querido que ese numeral 62 y sus disposiciones se aplicasen a causas pendientes, como la que nos ocupa, Nombre02 debió indicarlo, al tenor de las disposiciones vinculantes de la Sala Constitucional ya indicadas. Si se lee objetivamente ese numeral 62 se observa que inclusive su redacción es de carácter futuro, como corresponde: LA ACCIÓN PENAL RESPECTO DE LOS DELITOS... PRESCRIBIRÁ…REGIRÁN LAS SIGUIENTES REGLAS… Así, solo indica que se aplican a casos futuros y no a causas pendientes y al no hacerlo, no es posible enmendar al legislador aunque los Jueces lo deseen por motivaciones que esa defensa no conoce, pero intuye. Obsérvese que no existe un transitorio al Artículo 62 ni al final de la norma ni en los Transitorios de la propia Ley, que tiene dos sin incluir el que las Juezas inventan sin pudor. Si comparamos lo que el legislador hizo cuando aprobó el Código Procesal Penal, cuando expresamente indicó cuáles disposiciones nuevas se aplicaban a procesos en trámite, podremos entender la interpretación constitucional vinculante de la Sala que estas Juezas pretenden omitir y desobedecer …” (F. 172.748 a 172.749 frente, la transcripción es literal). En el caso particular, [Nombre01 018] declaró con posterioridad al 29 de octubre. Empero, como la causa inició antes de esa fecha, no le era aplicable el artículo 62 mencionado, salvo norma expresa legislativa, que no existe. La prescripción alegada se produjo desde el 30 de mayo de 2006, antes de la firmeza de la declaratoria de trámite complejo de esta causa que sobrevino en julio de ese año, o la convocatoria a la audiencia preliminar, ambos actos posteriores al momento en que tuvo lugar la prescripción y que por ello, no pueden tener efectos interruptores en perjuicio del imputado [Nombre01 018].

XXVI.- El motivo se declara sin lugar. Tal y como explicamos desde los primeros considerandos de esta resolución, el tema de la prescripción fue zanjado expresamente por la Sala Tercera, concluyendo que la acción penal no ha prescrito en el caso particular de [Nombre01 018] y que el reenvío ordenado debe partir de esa base. Se trata de una decisión que en cualquier caso, esta cámara comparte, al entender que al momento en que [Nombre01 018] fue indagado (a saber, el 30 de noviembre de 2004), ya se encontraba vigente el artículo 62 de la ley N° 8422, Ley contra la corrupción y el enriquecimiento ilícito en la función pública, publicada en La Gaceta Nº 212 de 29 de octubre de 2004, según el cual con el acto interruptor el cómputo del plazo de la prescripción inició de nuevo de forma completa, sin reducción alguna. Dice el recurrente que la citada ley no se puede aplicar a las causas que como la presente, ya estaban en curso para el 29 de octubre de 2004. Se trata de una posición que no es de recibo, ya tratándose de normas de carácter procesal o instrumental (y la Sala Constitucional ha dicho que las reglas de prescripción tienen ese carácter), estas rigen de inmediato y a futuro, con lo cual bastará con que el acto procesal previsto en esas reglas se realice durante su vigencia para que se le apliquen sus efectos, con independencia de que si el procedimiento dentro del cual ese acto tiene lugar ya se encontraba en marcha. Es importante acotar que lo proscrito por el art. 34 de la Constitución Política es que las normas surtan efectos de forma retroactiva en perjuicio de persona alguna y no que lo hagan a partir de su entrada en vigencia y a futuro, tal y como sucede aquí. En síntesis, si los actos procesales, al menos como tesis de principio, se rigen por la normativa vigente al momento de su realización, las declaraciones indagatorias realizadas luego del 29 de octubre de 2004, entre ellas la del imputado [Nombre01 018], están sometidas a lo dispuesto en el artículo 62 mencionado. En consonancia con lo anterior, esta cámara concluyó en el considerando VI.-, al cual se debe remitir el recurrente, que tratándose de los imputados que rindieron declaración indagatoria antes de esta fecha ([Nombre01 033], [Nombre01 001] y [Nombre01 022]) el efecto reductor del plazo de prescripción que el art. 33 inciso a) C.P.P. asocia a ese acto procesal no se puede suprimir invocando el citado numeral 62, ya que este no estaba vigente para entonces y no cabe aplicarlo de manera retroactiva, pretendiendo que sus efectos se asocien a actos procesales realizados al amparo y con las consecuencias previstas en una regulación distinta. Por lo expuesto, se declara sin lugar el motivo.

XXVII.- Dada la relación existente, esta cámara resolverá de manera conjunta el segundo y tercer motivo de las impugnaciones. Segundo motivo. Errónea aplicación de las normas atinentes al levantamiento del secreto bancario sin orden judicial para la respectiva causa, con infracción de los artículos 24 de la Constitución Política; 615 del Código de Comercio; 1, 2 y 3 de la Ley Nº 7425, del 9 de agosto de 1994, Ley sobre secuestro, registro y examen de documentos privados e intervención de comunicaciones. La defensa se opuso a la prueba bancaria procedente del Banco San José, en Bahamas, requerida en el caso Caja-Nombre01 y aportada como material probatorio en este asunto (pruebas 543, 544 y 545), al entender que había sido solicitada en exclusiva para la causa denominada Caja-Nombre01 y no para este proceso y, además, que medió “alteración de traducciones” de documentos por parte del Ministerio Público. Con esa prueba se pretendió constatar la recepción de certificados de depósito por parte de [Nombre01 018] con recursos procedentes de fondos de [Nombre01 091] y [Nombre 058], que se depositaron en el BAC Bahamas Bank Limited en ese país. El tribunal afirmó que la prueba proviene del Banco de San José en Bahamas. Eso es falso. 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 voto de mayoría. Basta leer la prueba para apreciar que son dos bancos diferentes y no una simple sucursal. Lo anterior se constata también al considerar que la Fiscalía requirió de una orden de juez para enviar la carta rogatoria a Bahamas, para solicitar la prueba bancaria. Si se hubiera tratado del propio Banco de San José, hubiese bastado con pedir la información al BAC San José en Costa Rica. Si bien la prueba procede de la causa Caja-Fischel, las juezas consideran (vid. f. 873 al 875) que no era necesaria una orden judicial expresa para utilizarla en este proceso. Según el fallo, basta con una orden judicial en cualquier causa penal para usarse en otra, posición que el tribunal había asumido, con protesta de la defensa, desde el 14 de mayo de 2010. Explica el impugnante, refiriéndose al fallo cuestionado: “… Redactan las Juezas así: De ahí que las fuentes de prueba identificadas con base en las enunciadas actuaciones podrán emplearse en los procesos penales en los cuales sean requeridas, pues la norma descrita no restringe su uso para una investigación específica en tanto no señala que pueden utilizarse para el esclarecimiento de un asunto penal en singular sino de varios asuntos penales en plural...” (Folio 874).” (F. 172.750 frente). Este argumento, se indica en el recurso, es cuestionable: “Así, interpretan que aunque esa evidencia de Bahamas se obtuvo mediante una orden judicial dictada dentro de la causa CCSS-Fischel, al ser ambos asuntos penales se podía y de hecho se hizo, usar en la causa Nombre64 091] , por ser ambas causas penales. Esta tesis no resiste el más mínimo análisis. Primero, por ser únicamente una argumentación sospechosamente gramatical y con absoluta omisión de criterios jurídicos. Veamos. Simplemente dicen que como la ley indica que se puede ordenar el secuestro, registro o examen de documentos privados para esclarecer ASUNTOS sometidos al conocimiento de los Jueces penales, se puede utilizar esa documentación para cualquier causa de esa naturaleza penal. Las Juezas omiten indicar que esa norma tiene un contexto constitucional en el Artículo 24 y que la pluralización del sustantivo ASUNTOS no es con el sentido de que pueda usarse en cualquiera de ellos, sino porque el texto constitucional refiere que LOS TRIBUNALES DE JUSTICIA, así, en plural, pueden ordenar el secuestro, registro y examen de los documentos privados, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a SU CONOCIMIENTO. Se trata de asuntos en plural porque se refiere a los Tribunales en plural, no como lo quieren leer las Juezas en cuanto a que un Tribunal específico puede ordenar el secuestro de documentos para cualquier causa, la específica que conoce y otras futuras o pasadas, sin límite de tiempo, competencia o asunto, en tanto tenga talante penal, al tenor del Artículo 2 de la Ley 7425. Lo que quiere decir y dice el Constituyente y el legislador es que cada Juez penal puede ordenar el secuestro, registro y examen de documentos privados para investigar los asuntos de que conoce, no cualquiera, aunque no sea el específico de que se trata. Y ello es Nombre02 por cuanto la Constitución exige también que esa orden solo puede librarse cuando SEA ABSOLUTAMENTE INDISPENSABLE, es decir, se requiere un análisis caso por caso, solicitud por solicitud y causa por causa, ya que si se interpreta que el levantamiento de la privacidad es para cualquier causa, no se estaría haciendo ese análisis de excepción (ABSOLUTAMENTE INDISPENSABLE) para otras causas que ni siquiera conoce. La tesis de las Juezas llevaría a desconstitucionalizar la garantía del Artículo 24, ya que no se estaría haciendo para otras causas el análisis requerido, la privacidad de documentos se desaparece con la primera orden, sin que sea necesario el control judicial en el futuro para el imputado …” (F. 172.750 y 172.751 frente). El criterio del tribunal llevaría a requerir únicamente una orden judicial para levantar el secreto bancario en una causa determinada, siendo que a partir de entonces, ese secreto desaparecerá para cualquier otra causa. Se abre la posibilidad de usar la información obtenida a futuro, en cualquier proceso, sea anterior o posterior, incluso en relación con hechos que no han ocurrido y sin control jurisdiccional en esos casos. Además, si se sigue la limitada tesis gramatical del tribunal, lo cierto es que la propia ley Nº 7425, en su artículo 2, usa otra redacción, al decir que el Juez podrá ordenar “EL SECUESTRO, REGISTRO O EXAMEN DE CUALQUIER DOCUMENTO PRIVADO, Nombre11 QUE PUEDA SERVIR COMO PRUEBA INDISPENSABLE DE LA COMISIÓN DE ALGUNA CONDUCTA DELICTIVA, en singular, no en plural y menos para cualquier causa inclusive que no habría ni surgido...” (F. 172.751 frente). Para el recurrente, los precedentes de la Sala Tercera solo avalan el uso de las evidencias que han surgido producto del levantamiento del secreto bancario en la causa específica. Si bien se ha permitido usar evidencia en causas distintas a aquella en la cual se obtuvieron, esto no ha sido Nombre02 con la información bancaria, lo anterior porque la protección del administrado frente a la administración es mayor cuando se trata de documentos privados, los cuales reciben protección constitucional. Considera todavía más grave el criterio expresado por el tribunal de juicio, en el sentido de que con base en el artículo 276 del Código Procesal Penal, podrían incorporarse como simples documentos evidencias obtenidas en otras causas penales, aun cuando esas evidencias sean producto del levantamiento del secreto bancario. El numeral 334 de ese mismo cuerpo normativo solo autorizaría a incorporar por lectura las evidencias obtenidas de acuerdo a lo que señala el código, y evidentemente las derivadas de órdenes judiciales para otra causa no es dable hacerlas entrar por “la puerta de la cocina”, como pretenden las juezas de la causa. Califica de increíble que el tribunal avale que el Ministerio Público pueda investigar los hechos, aún a pesar de restricciones de orden legal y constitucional. Añade que el propio juez de la causa Nombre82 limitó el uso de los documentos obtenidos a la causa específica en que se dictó la orden, lo que dispuso, inclusive, porque Nombre02 le fue solicitado por los fiscales, de allí que no sea posible que la evidencia se pueda utilizar en este proceso. Lo más serio es que el tribunal acepte que el Ministerio Público eliminó de la traducción esa restricción y justifique esa acción como un simple error, esto al manifestar: “Al folio 875 expresan las Juezas que esa responsabilidad sería de la traductora y no de la Fiscalía, cuando en este específico caso la traducción la efectuó la Fiscalía, por lo que sí es atribuible la responsabilidad. Además, no es que esa supresión sea supuesta, como falsamente afirman en el mismo Folio las Juezas, ya que de hecho se suprimió el párrafo del Juez que limitaba el uso de la información al caso Nombre82 y eso era de conocimiento de la Fiscalía, ya que Nombre02 lo solicitó ...” (F. 172.752 frente). Finaliza señalando que si este tribunal estima que la documentación derivada del levantamiento del secreto bancario en Bahamas no se puede utilizar en esta causa, en virtud de estar limitada a la causa en la que se dictó, la evidencia que supuestamente demostró los depósitos en beneficio de [Nombre01 018] debería de ser suprimida, al haberse obtenido con violación de las normas señaladas al inicio de este acápite. Tercer motivo. Errónea aplicación de la normativa que regula el levantamiento del secreto bancario en Bahamas, de conformidad con los artículos 24 de la Constitución Política, 615 del Código de Comercio, la Ley Orgánica del Banco Central de Costa Rica, la Ley Orgánica del Sistema Bancario Nacional y la ley 7425 referida. En este acápite se plantea lo siguiente: “… En el Considerando II. H. 3 las Juezas de mayoría se refieren a la oposición de esta defensa a la incorporación del Informe 082-DEF porque la documentación del BAC BAHAMAS BANK LIMITED se efectuó con fundamento en una carta rogatoria no aportada al proceso y sin que se levantara el secreto bancario para esa entidad en la presente causa. Como consta a Folios 877 y siguientes de la sentencia, la prueba 413 que consta al Folio 6673 del Tomo XV de los autos se aceptó sin que se hiciera constar la carta rogatoria que lo autorizara para esta causa. Lo anterior fue motivo de agravio en el Motivo anterior, pero ahora se amplía en otro motivo por cuanto el Tribunal de mayoría estima que adicionalmente la documentación que prueba unos presuntos certificados de inversión a Nombre01 de [Nombre01 018] en el Banco domiciliado en Bahamas se entregó con fundamento en un contrato de corresponsalía entre el BAC San José y el Bahamas Bank Limited. Es curioso que después de defender exhaustivamente la validez del uso de la documentación derivada de la causa Nombre82 para obtener esta evidencia en Bahamas en forma poco sustanciosa, ahora simplemente se decante en indicar que esa información no se entregó con ese sustento, sino por el supuesto contrato entre ambas entidades bancarias. Ahora resulta, según el Tribunal de Mayoría, que el BAC San José es offshore del BAC Bahamas, sin que ello esté demostrado en autos. ¿Cuál de los dos es la cabeza del grupo? ¿Dónde está ese bendito y fantasmagórico contrato entre esas entidades, que no solo no aparece, sino que nadie lo refiere ni lo adjunta ni indica al menos dónde está? Pero las Juezas lo aceptan sin más, sin verlo, olerlo o sentirlo, es como una prueba de fe, digna de mejor causa. Existe porque los empleados del Banco dicen que existe y ello lo hace real y válido. INCREÍBLE. No está en el expediente, nunca se aportó, pero existe porque las Juezas dicen que existe. Pero peor aún, si no existe, en todo caso con la orden del levantamiento del secreto bancario dirigida al BAC San José en Costa Rica era suficiente, según las Juezas, según afirman al Folio 8979. Veamos con cuidado. Indican las Juezas que la prueba 410 constata que el 1 de junio del 2004 se levantó el secreto bancario de [Nombre01 018] en el sistema bancario nacional, incluyendo el BAC San José. Eso es correcto, pero hasta ahora sabemos que el BAC Bahamas Bank Limited formaba parte del sistema bancario nacional..., es evidente que esa orden se dirigió a los bancos de Costa Rica, no a los de Bahamas, por el principio de territorialidad que rige esta materia. El Artículo 1 de la Ley Orgánica del Sistema Bancario Nacional, número 1644 del 26 de septiembre de 1953 y sus reformas, define al sistema bancario nacional y allí incorpora a los bancos comerciales privados establecidos y administrados conforme al Título VI de esta ley. No se habla nada en ese título de los bancos off shore, pues ellos están regulados en otra ley, la Ley Orgánica del Banco Central, que es la 7558 del 3 de noviembre de 1995. Nombre02 que cuando el Juez ordenó levantar el secreto bancario de [Nombre01 018] en los bancos del sistema bancario nacional lo hacía dentro de la definición legal de esa figura y no de lo que las juezas de mayoría se les ocurra. Cuando en el Folio 879 pretenden justificar las Juezas que el Reglamento para la Constitución, Traspaso y Registro de Grupos Financieros permite que se suscriban contratos de corresponsalía, ello es una verdad de Nombre83. Pero lo que no demuestran es lo más importante, que se hubiere suscrito ese contrato más allá de los buenos deseos de las Juezas. El que esos contratos sean legales no los hace aparecer en la realidad ni los materializa. Más aún, según las Juezas, como [Nombre01 018] remitió la transferencia desde acá, eso es la prueba que la transacción se verificó en Costa Rica y que entonces no es en realidad una operación internacional, que requiriera la carta rogatoria para obtener la información. INCREÍBLE. El que los recursos se hayan enviado desde acá no refiere al tipo de documento adquirido en el exterior, por lo que el envío de esos títulos requiere que se levante el secreto bancario en ese país. Si desde el Banco Nacional, por ejemplo, se envía dinero al Banco Santander en Venezuela no quiere decir que esa entidad es una sucursal o agencia del primero, simplemente se trata de una operación bancaria entre dos entes independientes y lo que el Banco Santander haga con el dinero enviado está protegido por el secreto bancario. Obsérvese que el BAC San José en Costa Rica no es el que remite la información directamente, sino que lo hace porque el Banco de Bahamas se la envía, lo cual evidencia que se obtiene ilícitamente y sin respeto al procedimiento constitucional existente para ello. Quizás lo más claro es, si pudiera ser así, preguntarse cuál sería la razón por la cual la Fiscalía solicitó el levantamiento del secreto bancario mediante carta rogatoria en Bahamas si según las Juezas bastaba que le pidiera la información al Banco local…” Pero el acábose de la tesis de las Juezas es su particular interpretación del secreto bancario. El último párrafo del punto 2.H. 3 refiere en el Folio 880 que el levantamiento del secreto bancario no necesariamente deba hacerse al Banco en el cual está la cuenta, sino que cualquier entidad puede dar información que posea sobre esa persona, aunque la cuenta no esté en ese Banco. Si se lee cuidadosamente el numeral 615 del Código de Comercio se entiende que la orden para el levantamiento del secreto bancario se dirige a la entidad con la cual el investigado tiene operaciones, cuentas, depósitos, inversiones o créditos, para que el responsable de tales operaciones envíe la información. No se trata de disparar al aire a lo loco, para esperar pacientemente que cualquier entidad cuente chismes o informes no oficiales acerca de determinada persona, ya que ello conllevaría a prostituir la orden del Juez que debe cumplir requisitos inclusive de rango constitucional. Los Bancos envían la información que deriva de operaciones con ellos, específicamente con el Banco que recibe la orden y no puede entenderse que incluye la remisión de cualquiera que sea el conocimiento que se tenga de la persona investigada…” (F. 172.752 a 172.754 frente). Siendo que la información se obtuvo sin orden de juez competente, sin que conste contrato de corresponsalía entre los bancos y sin levantamiento del secreto bancario en esta causa, dicha información deviene en ilícita y debe excluirse como elemento probatorio en el presente caso.

XXVIII.- Los alegatos no son de recibo. En el considerando VIII.- de la resolución de la Sala Tercera, esta se pronunció en cuanto a los temas aquí señalados, indicando: “VIII. Sección III de la impugnación planteada por el Ministerio Público. Motivos del Recurso de Casación relacionados con la declaratoria de la ilicitud de la denominada “Prueba Nº 543, 544 y 545”. La inobservancia de las normas procesales 142 párrafo segundo y 184 con relación al ordinal 408 inciso b) todos del Código Procesal Penal constituye el primer motivo de la sección tercera del recurso planteado, ya que en criterio del ente fiscal, el fallo incoado presenta al menos siete falencias en su fundamentación intelectiva, relacionadas con la confirmación de ilegalidad de las pruebas 543, 544 y 545, a saber: 1.- Supuestamente, no contiene la cita de las normas de la Constitución, de la Ley 7425 o del Código Procesal Penal que prohíben expresamente el uso de prueba documental legítima dentro de otra causa penal. 2.-Aduce, que si bien la sentencia 2012-2550 alude, genéricamente, al derecho a la autodeterminación informativa del artículo 24 Constitucional y a la jurisprudencia constitucional que la desarrolla, no señala la parte de esa norma o los precedentes concretos del órgano constitucional que prohíben expresamente utilizar en un caso prueba documental legítimamente obtenida en otro proceso, lo que impide que el órgano fiscal pueda verificar su existencia y correspondencia entre su ratio decidendi y el voto recurrido (Cf.f.175095 del tomo XLII del expediente). 3.- El fallo obvia pronunciarse sobre los aspectos fácticos y jurídicos que el Ministerio Público alegó en la vista oral de apelación, referentes al tercer motivo del recurso del Licenciado José Miguel Villalobos, a favor de [Nombre01 018], y al sétimo del recurso interpuesto por los coimputados [Nombre01 018], [Nombre01 028], [Nombre 041] y [Nombre01 001], en específico sobre que: a) [Nombre01 028] utilizó productos y servicios contratados en Costa Rica, tanto de la cuenta corriente de [Nombre 058] del Banco Cuscatlán en Costa Rica como de SAFI y Cuscatlán Valores, que también pertenecen al mismo Grupo Cuscatlán. b) Según los hechos probados de la sentencia condenatoria 167-2011, tanto el imputado [Nombre01 028] como [Nombre01 018] utilizaron los servicios de la banca privada costarricense para confeccionar y recibir transferencias de dinero y títulos valores provenientes de [Nombre02 091], el primero a través de la ejecutiva de cuenta [Nombre 232] del Banco Cuscatlán y el segundo, por medio del BAC San José y sus sucursales, de manera que, se trata de bancos privados y filiales que operan en Costa Rica y que forman parte del Sistema Bancario Nacional, según el artículo 1 de la Ley Orgánica del Sistema Bancario Nacional. Además, que aunque la información solicitada a estos bancos requiere orden judicial, en el particular, ocurrió una situación sui generis, ya que aparte que los hechos fueron cometidos en territorio costarricense, las Autoridades costarricenses no ordenaron ni al grupo Cuscatlán ni al BAC, en Costa Rica, el envío de documentos del Cuscatlán Internacional Bank & Trust Limited o del Bahamas Bank Limited en ese país, sino que fueron ambos Grupos Financieros lo que entregaron voluntariamente la información generada en ellos, con motivo de la relación comercial con [Nombre01 058] y el coimputado [Nombre02 018]. Alegan que a diferencia del voto 2012-2550, el Tribunal de Juicio, en la sentencia condenatoria 167-2011, sí hizo un basto pronunciamiento al respecto, según el apartado “H. Protestas de la defensa técnica de [Nombre01 018] ” (Cf.f. 867 de la sentencia de primera instancia) 3. Oposición a la incorporación del Informe Nº 082-DEF porque la documentación del banco (sic) de Bahamas, en la cual éste se apoya, se obtuvo con base en una carta rogatoria que no se aportó en este proceso” (Cf.f.175097 del tomo XLII del expediente). Reiteran que, a partir de la falta de pronunciamiento alegada, el Tribunal recurrido obtuvo una conclusión inderivada, con la que sostuvo que las Autoridades de los Grupos Financieros arriba mencionados, requerían una orden dirigida a las Autoridades de Bahamas para que tanto el Grupo Cuscatlán como el BAC, remitieran a las Autoridades costarricenses la información que ellos mismos generaron en Costa Rica, con motivo de la relación comercial que tenían con ambos coimputados. 4) Nuevamente, alegan los quejosos, que la sentencia 2012-2550, obvia pronunciarse sobre los aspectos fácticos y jurídicos alegados por el Ministerio Público en la vista oral de apelación realizada, solo que ahora con referencia: a) Que las transferencias internacionales realizadas por los coimputados [Nombre01 028] y [Nombre01 018], a través de cuentas bancarias en Costa Rica, no fueron depositadas en cuentas de las Bahamas, sino generadas y almacenadas aquí en Costa Rica a solicitud de éstos. b) Que tanto la información bancaria del Grupo Cuscatlán como del BAC, forman parte del secreto bancario, que debían observar esas entidades. Empero, una vez levantado dicho secreto, por medio de una orden judicial emitida por Juez competente, también estaban en la obligación de entregar esa información, como efectivamente ocurrió. c) La información obtenida por orden de un Juez costarricense, no se encontraba en poder de Bancos en las Bahamas sino del grupo financiero Cuscatlán (Banco Cuscatlán, SAFI, Cuscatlán Valores) y BAC, domiciliados en Costa Rica, por lo que era innecesaria la emisión de una orden de levantamiento de secreto bancario a Cuscatlán International Bank & Trust Limited o del BAC Bahamas Bank Limited. Aunado a que, en el caso de los certificados que comprometían al imputado [Nombre01 018], éstos se encontraban materialmente en el BAC San José aquí en Costa Rica, debido a que las transacciones realizadas se hicieron desde nuestro país, bajo la figura del contrato de corresponsalía con el Banco de Bahamas (Cf.f.175099-175100 del tomo XLII del expediente). En virtud de lo anterior, pese a ello, aducen que: “… el Tribunal(sic) Apelación de sentencia(sic) obvió pronunciarse sobre estos aspectos fácticos y jurídicos puntualmente alegados por la Fiscalía y desarrollados ampliamente por el tribunal(sic) de juicio(sic), y sin que se conozca a partir de qué razón, argumento o prueba, partió de la hipótesis fáctica alternativa de(sic) que las transferencias realizadas a los bancos de Bahamas desde Costa Rica se documentó en información que solo podía estar bajo custodia exclusiva de los bancos off shore , tal y como si las operaciones de transferencia se hubieran hecho íntegramente fuera del territorio nacional y únicamente en el banco off shore. Con esto, el Tribunal de Apelación de Sentencia logró obtener una conclusión inderivada, cual es que las autoridades(sic) necesitaban una orden dirigida a las autoridades(sic) de Bahamas para que Grupo Cuscatlán y Grupo BAC dieran a las autoridades(sic) costarricenses información que habían generado ellos mismos y se encontraba en su propio poder aquí en Costa Rica, y que además había sido generada con ocasión con la relación comercial del Grupo Cuscatlán y Grupo BAC con [Nombre01 058] y el imputado [Nombre01 018] de acuerdo con la ley nacional y con el contrato se(sic) servicios que en nuestro país ambas partes suscribieron…” (Cf.f.175101 del tomo XLII del expediente, el destacado pertenece al original). 5) Según el Ministerio Público, a diferencia de la sentencia 167-2011, la resolución de alzada no fundamenta por qué no se demostró la relación de corresponsalía entre el BAC San José y Bahamas Bank Limited, ni explica la razón por la que no le mereció credibilidad la prueba 413, referida al oficio del 31 de enero de 2006, suscrito por la Jefa de Gestión de Riesgos Operativos del BAC San José (Cf.f.6673 del tomo XV del expediente), en el que se revela la existencia de un contrato de corresponsalía en el que el BAC San José opera como banco agente del BAC Bahamas Limited. Tampoco expone por qué era posible que los coimputados [Nombre01 028] y [Nombre01 018], hicieran transacciones ante los bancos de las Bahamas sin necesidad de viajar a esa Isla, sino existía ese contrato de corresponsalía. Insistiendo, en que menos expresan los Juzgadores de Segunda Instancia, por qué no les mereció credibilidad la nota de folio 80 del tomo I del expediente, de fecha 27 de setiembre de 2004, en la que personeros del Banco Cuscatlán informan al Ministerio Público, la preparación de sendos documentos para enviarles, entre ellos, punto e), “… operaciones al amparo del contrato de corresponsalía directa que el Cuscatlán Bank and Trust co Ltd en Nassau mantiene con el Banco Cuscatlán de Costa Rica…” (Cf.f.175102 del tomo XLII del expediente. El suplido pertenece al original). 6) Subrayan, que de ningún modo, el Tribunal de alzada fundamenta cómo en el caso de los coimputados [Nombre01 028] y [Nombre01 018] la información de Bahamas puede, jurídicamente excluirse de servicios de cuentas corrientes realizados en Costa Rica, ni tampoco mencionan la norma jurídica concreta, con la que se puede excluir la información que estos bancos costarricenses manejan acerca de los movimientos de una cuenta en particular, generada por las actividades de su cuentacorrentista en cuentas de otros países cómo producto de transferencias de dinero que a través de esa misma cuenta corriente en Costa Rica el cliente enviaba o recibía el dinero del extranjero. 7) Agregan que el Tribunal de segunda instancia, no examinó las implicaciones de la exclusión hipotética de las pruebas 543, 544 y 545 en el particular, ni la tesis del voto de mayoría de la sentencia condenatoria 167-2011, del Tribunal Penal de Hacienda y la Función Pública, en el tanto existen otros elementos documentales proveídos por el BAC San José, que permiten determinar la responsabilidad penal de [Nombre01 018] , como “la relación conjunta del anexo Nº 19 del informe 082 DEF, relativa a los movimientos de la cuenta bancaria de [Nombre01 058]., con la prueba expresamente autorizada por [Nombre01 028] Y [Nombre01 221] mediante las notas de fechas 21 y 29 de setiembre de 2004, contenidas a su vez en la prueba Nº 110, e igualmente mediante los folios 28 a 33 de la prueba Nº 132, provenientes del Banco Cuscatlán…” (Cf.f.175103 del tomo XLII del expediente, la mayúscula pertenece al original). Como agravio esbozan que con la falta de fundamentación de la sentencia relativa a las alegaciones de ese ente, con relación a las pruebas 543, 544 y 545, se causó un menoscabo a la defensa de los intereses sociales confiados a ese Órgano, pues se ignoran a la fecha los motivos jurídicos considerados por el Ad quem para rechazar los argumentos expuestos, por lo que solicitan, como pretensión, se anule el fallo impugnado, se devuelvan los autos al Tribunal de Apelación competente, para que, con una nueva integración emita un nuevo fallo que analice los puntos cuestionados en el presente motivo. De conformidad con el artículo 468 inciso b) del Código Procesal Penal, al mismo tiempo, el Ministerio Público, en el segundo motivo del apartado tercero, reclama errónea aplicación de las normas sustantivas 141, 145 y 147 de la Ley Orgánica del Banco Central de Costa Rica e inobservancia del artículo 615 del Código de Comercio, por considerar el fallo recurrido, que la información proporcionada por los Bancos BAC San José y Grupo Cuscatlán en Costa Rica, con relación a las transferencias realizadas a entidades financieras domiciliadas en Bahamas, sobrepasó la orden de levantamiento de secreto bancario impartida. Según los gestionantes, la conclusión a la que arriba la sentencia 2012-2550, cuando señala que: “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…”(Cf.f.175105 del tomo XLII del expediente, el resaltado es suplido), es incorrecta, precisamente porque los artículos 141, 145 y 147 supra mencionados y citados en forma literal en el Recurso del Ministerio Público, regulan el supuesto acaecido en la especie, sea la “Banca off shore”, insistiendo que no es cierto que, para obtener información bancaria del Bahamas Bank Limited, fuese indispensable realizar la tramitología correspondiente a través de la Cancillería General de la República, pues bastaba únicamente con la solicitud realizada al Grupo Financiero Nacional. También, que se transgredió el artículo 615 del Código de Comercio, porque erróneamente se excluyeron del levantamiento del secreto bancario ordenado a Bancos Nacionales, documentos que, por relaciones de negocios entre el Banco y el cliente, constaban en esas cuentas corrientes. Afirman que, el grave error del voto recurrido consistió en malinterpretar el significado y alcance del secreto bancario, Nombre02 como limitar arbitrariamente la información que abarcaba el levantamiento del secreto bancario impuesto a Grupos Financieros relacionados, estableciendo a través de la doctrina del autor Nombre84, en el libro “Contratos Bancarios. Su significado en América Latina”, Legis, 5ª Edición, p.380, que el secreto bancario comprende “… toda la información que se ha brindado a la misma con ocasión de su relación con el cliente …” (Cf.f.172107 del tomo XLII del expediente), en específico: “…•La información privada que ha recibido de sus clientes sobre sus actividades, negocios, planes, etc./ •Resultados de operaciones entre banco y cliente, como cuantía, destinación, modalidades de crédito, etc./ • Los papeles de su cliente que, por razón de las relaciones de negocios, han venido a parar a las manos del banco, y que no podría mostrar a terceros sin las ritualidades procedimentales señaladas por ley…”(Cf.f.172107 del tomo XLII del expediente). Igualmente, señalan que al momento de aplicar esa doctrina al caso concreto, es claro que la información bancaria que un grupo financiero tiene en Costa Rica, no se limita únicamente a aquella generada por actividades del cliente en nuestro país, sino también a cuentas en otros países, como producto de transferencias de dinero realizadas desde la misma cuenta al extranjero, para repetir que, las transferencias internacionales a las que hace referencia el fallo, se realizaron a través de cuentas bancarias ubicadas en Costa Rica, por lo que la información de esas transacciones a bancos de Bahamas, al ser generada y almacenada en Costa Rica, a solicitud de los propios coimputados, formaba parte del secreto bancario que debían observar los Grupos Financieros Cuscatlán y BAC San José, pero también integraban la información que una vez levantado el secreto bancario correspondiente debía entregarse a las Autoridades Judiciales costarricenses, por tratarse de información bancaria, obtenida en nuestro país, en virtud de relaciones de negocios entre Banco-cliente, como en efecto ocurrió. A partir del anterior planteamiento, exteriorizan que resultaba innecesaria una orden de levantamiento de secreto bancario al Cuscatlán International Bank & Trust Limited o del BAC Bahamas Bank Limited, siendo entonces, desde esa óptica, válidas las pruebas 543, 544 y 545. Como agravio, exponen que la inaplicación de la normativa supra citada, ocasionó un perjuicio ilegítimo a las pretensiones punitivas del Ministerio Público, porque les impidió el desarrollo de una teoría del caso concatenada con probanzas restantes, en especial, con el testimonio del testigo colaborador [Nombre01 064]. Como pretensión, solicitan se declare con lugar el motivo, se ordene la anulación del fallo, y el reenvío para el dictado de una nueva resolución conforme a derecho. Finalmente, al tenor del numeral 468 inciso b) del Código Procesal Penal, en el tercer reclamo de la sección tercera del recurso de casación del Ministerio Público, se reclama errónea aplicación del artículo 24 Constitucional, al momento de invalidar las pruebas 543, 544 y 545. Para el Ministerio Público, el supuesto vicio alegado es constatable cuando el Tribunal de alzada, con fundamento en una concepción errónea de dicho numeral, equipara el uso de una misma prueba en dos causas penales diversas, a un “segundo levantamiento del secreto bancario”, sin orden judicial (Cf.f.175119 del tomo XLII del expediente). Justamente, el ente fiscal, en su impugnación explica dos supuestos yerros en los que incurre el Tribunal de Apelación, al momento de resolver el tema de las pruebas anteriormente citadas: 1.- El fallo presenta una confusión al interpretar, el artículo 24 Constitucional, cuando se refiere a “Tribunales de Justicia” (plural) para “los asuntos” (plural), ya que la norma no específica que la información una vez obtenida por medio de exhorto o levantamiento del secreto bancario, solo pueda ser utilizada en el proceso en el que originalmente fue requerida, siendo que, por el contrario, establece como únicos competentes para obtener esa información privada a los Tribunales de Justicia, cuando presenta la frase “sometidos a su conocimiento”, lo que significa que, se trata de una utilización exclusiva para causas penales, donde la solicitud al órgano jurisdiccional es indispensable, pues excluye de esa obtención a aquellos poderes o instituciones diversas a los Tribunales de Justicia (Cf.f.175120 del tomo XLII del expediente). 2.-Para los reclamantes, el Tribunal de segunda instancia desconoce los principios procesales de publicidad y comunidad que rigen la materia probatoria: el secreto bancario con relación a la información develada, recopilada, sistematizada y puesta en conocimiento de todas las partes solo puede ser levantado una única vez, precisamente por haber perdido su condición de secreto (Cf.f.175121 del tomo XLII del expediente). Además, mencionan los gestionantes, que las pruebas 543, 544 y 545, adquirieron esa publicidad, cuando fueron agregadas, discutidas e incorporadas a debate en el proceso CCSS-Fischel, como parte de la información remitida del BAC Bahamas, en la que se entregaron copias de certificados de inversión referidas por el coimputado [Nombre01 018] al BAC Bahamas, que fueron recibidas por el BAC San José, con el propósito de ser transferidas al BAC Bahamas, junto a un monto en dólares debitado de esa cuenta, según el contrato de corresponsalía, en el que el BAC San José operó como Agente del BAC Bahamas Bank Limited (Cf.f.175122 del tomo XLII del expediente). Sobre el mismo tema, realizan los recurrentes la transcripción literal de los folios 16016 y 16017 de la sentencia de primera instancia 167-2011, para respaldar los razonamientos expuestos y afirmar que la documentación del BAC Bahamas entregada por la señora [Nombre01 233], como Jefe de Gestión de Riesgos Operativos del Bac San José es lícita, en virtud que ésta se generó y se encontraba materialmente en Costa Rica. Para el ente fiscal, el levantamiento del secreto bancario de las cuentas del BAC San José, además de haber sido obtenido conforme a la normativa legal, fue público y común a todas las partes, cuando fue incorporado al proceso penal CCSS-Fischel, de manera que, es absurdo sostener que en ambos procesos se debió levantar el secreto bancario, pues aquel es solo uno y se levanta una sola vez. Asimismo, afirman los petentes, que la sentencia es omisa en indicar las normas constitucionales y legales (Ley 7425 o Código Procesal Penal), que expresamente impiden el uso de prueba legítimamente obtenida dentro de un proceso en otro, por lo que para los representantes fiscales, esa prueba debe ser estudiada, desde el concepto doctrinario de “prueba trasladada” (Cf.f.175124-175125 del tomo XLII), que se fundamenta en la unidad de la jurisdicción, no requiriendo identidad de partes, sino la existencia previa del contradictorio y cognición de la prueba en el otro proceso, donde se haya determinado su eficacia plena, según el principio de libertad probatoria, recogido en los artículos 182 y 234 del Código Procesal Penal y el voto 2001-764, de la Sala Tercera, del que citan un extracto (Cf.f.175125-175126 del tomo XLII del expediente). De esta forma, para los representantes fiscales, no solo existió una evidente conexidad entre las causas Nombre82 e Nombre64 091], sino que la información obtenida del BAC Bahamas Bank Limited en Bahamas, con ocasión de la conexión con la cuenta del BAC San José en Costa Rica, en la causa CCSS-Nombre01, fue puesta en conocimiento de todos los coimputados, en cuenta [Nombre01 018], quien tuvo la oportunidad, junto a su defensa técnica de rebatirla, siendo en ese otro proceso su incorporación como válida. Por lo anterior, esgrimen como agravio, un perjuicio ilegítimo a las pretensiones punitivas del Ministerio Público, órgano que no logró probar su teoría del caso, debido a la exclusión de los mencionados elementos probatorios, peticionando el recurso fiscal, tanto la anulación del fallo recurrido en cuanto a la declaratoria de ilicitud de las pruebas 543, 544 y 545 como la emisión de un nuevo fallo que dirima el extremo planteado. Por razones de economía procesal y por referirse a extremos interrelacionados, los motivos primero, segundo y tercero de la Sección Tercera del recurso fiscal, se resuelven de manera conjunta, y se declaran con lugar: Por la naturaleza de los reclamos se debe realizar las siguientes consideraciones: i) En lo concerniente a las probanzas 543, 544 y 545 en el particular: Tal y como en su momento lo hiciere el Tribunal Penal de la Hacienda Pública, del Segundo Circuito Judicial de San José, en la sentencia 167-2011, antes de resolver sobre la licitud o ilicitud de las probanzas 543, 544 y 545 supra citadas, es necesario dimensionar lo referente a ese material. Conforme a la pieza acusatoria, que consta a folios 8020 a 8364 del tomo XIX del expediente, los elementos probatorios 543, 544 y 545, fueron descritos por el Ministerio Público en su petición de “ACUSACIÓN FORMAL Y SOLICITUD DE APERTURA A JUICIO ” (Cf.f.8020-8364 del tomo XIX del expediente. El suplido pertenece al original), dentro del acápite denominado “Exhortos Judiciales ”, como: “…543) Copia Certificada de la solicitud al Juzgado Penal por parte del órgano fiscal para la emisión de Carta Rogatoria dirigida a la República de Bahamas, del 5 de octubre de 2004 (...) 544) Copia certificada del Exhorto formulado por el Juzgado Penal de Costa Rica a las autoridades de Bahamas (…) 545) Copia certificada de Respuesta a la carta rogatoria a Bahamas por el Cónsul Nasaú(sic), Bahamas y copia de traducción al idioma inglés de la Carta Rogatoria emitida por el Juez Penal de Costa Rica a las autoridades de Bahamas…” (Cf.f.8324 del tomo XIX del expediente), puesto que con la prueba 543, el ente fiscal pretendía acreditar, el “…requerimiento del Ministerio Público para acceder a la información bancaria relacionada a [Nombre01 018], [Nombre01 215] entre otros para la “off shore” del Banco de San José en Bahamas(…)…”(Cf.f.8324 del tomo XIX del expediente); con la 544, tanto el trámite de legalización en la obtención de esa prueba como “…los respaldos bancarios de las operaciones hechas por [Nombre01 018] en “….el ingreso de dinero proveniente de [Nombre01 058] a la cuenta de [Nombre01 215] y la traducción al idioma inglés de la solicitud formulada…” (Cf.f.8324 del tomo XIX del expediente). De ahí que, como dato importante, el oficio sin número, del cinco de octubre de dos mil cuatro, denominado posteriormente como prueba 544, se encuentre referido al exhorto enviado por el Licenciado Adrián Molina Elizondo, en su carácter de Juez Penal de Hacienda y la Función Pública del Segundo Circuito, por medio de la Secretaría de la Corte Suprema de Justicia y del Ministerio de Relaciones Exteriores al Gobierno de Bahamas, mismo que fue realizado con motivo de la investigación 04-0005356-042-PE, seguida contra [Nombre01 018] , [Nombre01 158] , [Nombre01 225], [Nombre 234], [Nombre02 235] y [Nombre02 236], por los delitos de corrupción agravada, enriquecimiento ilícito y otros, en perjuicio de la Caja Costarricense del Seguro Social, en el caso denominado Caja-Fischel, tal y como se desprende del folio 6629 y ss del tomo XV del expediente. En ese requerimiento, además se expuso el cuadro fáctico que motivaba la gestión, al indicar que se trataba de una pesquisa para acreditar hechos referentes al “Proyecto Finlandia” (hechos del 1 y 57) y a la “Compra de Casa en [...] ” (hechos 58 hasta el 59 dado que el documento ofrecido por el ente fiscal, se determinó se encontraba incompleto) (Cf.f.00015313-00015314 del tomo XXXI del expediente), siendo que, a pesar que en dicha petición fueron mencionados otros posibles implicados, aquella estaba dirigida a comprobar esencialmente el accionar de los justiciables [Nombre01 018], [Nombre01 158] y [Nombre01 225], dado que se requería la información de las cuentas [Valor 044] , [Valor 045] y [Valor 046] del Banco de San José en Bahamas, en específico, los nombres de los propietarios de las cuentas señaladas, además de la “…entrega de TODA la documentación original desde que la misma fue abierta…”(Cf.f.6550 del tomo XV del expediente. El suplido es nuestro), debiendo incluirse: “…para cada cuenta, más no estar limitados a: • Tarjetas de firmas/• Documentos relacionados con la apertura de las cuentas/• Tarjetas mayores de cuentas/• Estados de cuentas periódicos/ • Registros de depósitos y retiros/ • Instrucciones relacionadas con el recibo o transferencia de cualesquiera fondos hacia o desde la cuenta ya sea mediante fax, correo electrónico, o cualquiera otro medio de comunicación/ • Correspondencia hacia, desde, o a favor del titular(s) de la cuenta/• Memorándums relacionados con la cuenta/• Cheques de caja y documentación de compra de cheques de caja/• Saldos/• Fechas de cierre/• Inactividad/• Cualquier otra documentación de la cuenta, operación o actividad financiera…”(Cf.f.6550 del tomo XV del expediente. El suplido es nuestro), de tal forma que, el contenido de la prueba 545 obedece a los registros y documentos que las cuentas bancarias arrojaron. Una vez que todos esos elementos probatorios fueron aportados por el órgano fiscal en su solicitud de apertura a juicio, las defensas técnicas discutieron sobre su licitud, en el tanto, se ha venido cuestionando la fragmentación, por estar incompleto el documento incorporado como prueba 543, Nombre02 como la ausencia de la orden judicial correspondiente para accesar a información sensible como lo era lo relativo a cuentas bancarias en el extranjero (Cf.f.00015310 del tomo XXXI del expediente). Sin embargo, la sentencia 167-2011, dictada en primera instancia, mediante el voto de mayoría, con motivo del reclamo defensivo del abogado Villalobos, estableció en el apartado “…1. Prueba bancaria procedente del Banco de San José en Bahamas requerida en el caso "Caja-Fischel" y aportada como material probatorio en este proceso (pruebas Nº 543, Nº 544 y Nº 545) ” (Cf.f.15310 del tomo XXXI del expediente. El suplido pertenece al original), la legalidad tanto de esas fuentes probatorias como su posterior incorporación al presente proceso, cuando determinó que dicho material, a pesar de proceder del expediente 04-5356-042-PE, contra [Nombre01 238] y otros, denominado "Caja-Fischel" y haber sido agregado al presente expediente 04-6835-647-PE, podía ser trasladado, al no existir prohibición legal expresa al respecto y determinar que: “…al momento en que la Fiscalía formula la referida petición al juez(sic) penal(sic) de la etapa preparatoria para que pida a las autoridades(sic) competentes de Bahamas, la prueba de su interés no contaba con la claridad necesaria para vislumbrar que estos hechos estaban desvinculados de los que entonces investigaba en el contexto del caso "Caja-Fishel" (Cf.f.00015312 del tomo XXXI del expediente). Igualmente que, si bien se había omitido la copia de al menos diez folios de la última parte del documento original, entregado por la Fiscalía costarricense, lo cierto era que de esas fotocopias no era posible extraer mala intención, por parte de los representantes fiscales, dado que de ellas era derivable, sin problema alguno, la autorización del Juzgador Adrián Molina Elizondo, para recabar esas pruebas en Bahamas (Cf.f.00015313 del tomo XXXI del expediente). Sin embargo, el Tribunal de Apelación de Sentencia, a propósito de los cuestionamientos defensivos, determinó que el BAC San José en Bahamas no constituía una extensión de su homólogo en Costa Rica, por lo cual cualquier información bancaria proveniente de esa entidad, debió haberse gestionado por los medios legales correspondientes, sea, a través de la emisión de la respectiva orden judicial, ausente en este proceso. Además, según el Ad quem, su utilización estaba restringida al caso 04-0005356-042-PE, por lo que no correspondía su traslado para este nuevo proceso, aparte que, no se había demostrado la corresponsalía entre el BAC de San José y el BAC Bahamas Limited (Cf.f.174525-174526 del tomo XLI del expediente). Por esas últimas razones, es que el Ministerio Público, de nuevo, discute la licitud de esas probanzas, solo que ahora desde los lineamientos y restricciones contempladas en el artículo 468 inciso b) del Código Procesal Penal. Ahora bien, desde el anterior recuento, se hace necesario realizar algunas reflexiones de interés, puesto que de la lectura del apartado denominado: “…B. Prueba espuria. En el segundo motivo del recurso planteado por [Nombre01 018], 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…” (Cf.f.174525 del tomo XLI del expediente) contenido en el fallo 2550-2012 impugnada, esta Cámara de Casación advierte la existencia de los yerros de errónea aplicación de las normas constitucionales y legales, infracción al principio de derivación y ausencia de fundamentación intelectiva, con respecto a la prueba 110, alegados por el órgano fiscal, con base a las siguientes consideraciones: i) Aplicación errada de los artículos 24 de la Constitución Política; 1, 28 y 29 de la Ley 7425, de 09 de agosto de 1994, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones y 615 del Código de Comercio. De acuerdo con los razonamientos expuestos en el fallo impugnado, es posible constatar que el Ad quem exigió, como requisito para decretar como lícitas las pruebas 543, 544, y 545, una orden judicial nueva en el presente proceso, al sostener que la información proveniente del Bac Bahamas Bank Limited, tendente a levantar el secreto bancario de las cuentas del imputado [Nombre01 018], debió ser recabada por medio de una resolución judicial que Nombre02 lo permitiera, no siendo posible el traslado de esos elementos probatorios de un proceso a otro, cuando lo cierto es que, los numerales supra citados no contienen prohibición expresa para su utilización en ulteriores causas. Ciertamente, antes de proseguir con el estudio de las pruebas arriba mencionadas, se hace necesario reiterar que la norma 24 de nuestra Constitución Política consagra el derecho fundamental a la intimidad, a la libertad y al secreto de las comunicaciones, por lo cual se transcribe nuevamente el artículo, a fin de establecer que aquella norma señala que: “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. Su aplicación y control serán responsabilidad indelegable de la autoridad judicial./ La ley fijará los casos en que los funcionarios competentes del Ministerio de Hacienda y de la Contraloría General de la República podrán revisar los libros de contabilidad y sus anexos para fines tributarios y para fiscalizar la correcta utilización de los fondos públicos./Una ley especial, aprobada por dos tercios del total de los Diputados, determinará cuáles otros órganos de la Administración Pública podrán revisar los documentos que esa ley señale en relación con el cumplimiento de sus competencias de regulación y vigilancia para conseguir fines públicos. Asimismo, indicará en qué casos procede esa revisión. /No producirán efectos legales, la correspondencia que fuere sustraída ni la información obtenida como resultado de la intervención ilegal de cualquier comunicación. / (Así reformado por el artículo 1° de la ley N° 7607 de 29 de mayo de 1996. El suplido es nuestro). De la norma Constitucional citada, se desprende que el derecho fundamental a la intimidad consagrado en ese artículo, está íntimamente relacionado con la esfera de protección de la vida privada de las personas dentro de un Estado Democrático, ya que está comprendido: “…por aquellos fenómenos, comportamientos, datos y situaciones de una persona que normalmente están sustraídos al conocimiento de extraños. Dicha esfera de intimidad se justifica porque en un sistema democrático toda persona tiene derecho a mantener reserva sobre ciertas actividades, datos, documentos u opiniones suyas, puesto que resulta imposible o muy difícil de convivir y desarrollar a plenitud los fines que una persona se propone, sin gozar de un marco de intimidad, protegido de injerencias del Estado o de otras personas (ver el artículo 11.2.3 de la Convención Americana sobre Derechos Humanos o Pacto de San José)…” (Tribunal Contencioso Administrativo, Sección VI, voto 2010-02958, de las ocho horas, del diez de agosto de dos mil diez. El destacado es nuestro). Sin embargo, tal y como lo define el voto 2010-02958, del Tribunal Contencioso Administrativo, Sección VI de anterior cita, con énfasis en el voto 2005-02703, de las diez horas diecisiete minutos, del diez de marzo del dos mil cinco de la Sala Constitucional, dentro del derecho a la intimidad contemplado en la norma 24 de la Constitución Política debe ser considerada como una manifestación de esa garantía, la inviolabilidad de los datos y documentos privados, en el tanto ésta se entiende como un resguardo para que los particulares no puedan accesar a ellos y a la vez, como una prohibición para que los entes públicos o privados, que manejan esa información, no puedan suministrarla a terceros, dado que: “…El artículo 24 de la Constitución Política le garantiza a todas las personas una esfera de intimidad intangible para el resto de los sujetos de derecho, de tal forma que aquellos datos íntimos, sensibles o nominativos que un ente u órgano público ha recolectado, procesado y almacenado, por constar en sus archivos, registros y expedientes físicos o automatizados, no pueden ser accedidos por ninguna persona por suponer ello una intromisión o injerencia externa e inconstitucional…” (Sala Constitucional de la Corte Suprema de Justicia, voto 2005-02703, de las diez horas diecisiete minutos, del diez de marzo del dos mil cinco. En sentido similar, voto 2003-00136, de las quince horas veintidós minutos, del quince de enero del dos mil tres, citados en Tribunal Contencioso Administrativo, Sección VI, sentencias 2010-02958, de las ocho horas, del diez de agosto de dos mil diez y 838-2009, de las ocho horas treinta minutos, del seis de mayo de dos mil nueve). Pese a las restricciones señaladas, la inviolabilidad de los datos y documentos privados tampoco es irrestricta, ya que la propia Constitución Política establece limitaciones o excepciones, cuando remite a la ley, siendo promulgada la 7425 para establecer regulaciones concretas, en el caso de las intervenciones de las comunicaciones orales o escritas y el derecho a la intimidad en general, mientras que en específico, para el secreto bancario, al artículo 615 del Código de Comercio. Al respecto, sobre la noción de secreto bancario, como tema esencial para la resolución de los motivos planteados por el ente fiscal, debe sostener que la propia Sala Constitucional, lo ha entendido, como “…una manifestación legal del bien jurídico tutelado a través de lo dispuesto en el artículo 24 de la Constitución Política (derecho fundamental a la intimidad). En ese sentido, el secreto bancario es “...el deber impuesto a toda entidad de intermediación financiera de no revelar la información y los datos que posea de sus clientes por cualquier operación bancaria o contrato bancario que haya celebrado con éstos, sobre todo, en tratándose de las cuentas corrientes, ya que, el numeral 615 del Código de Comercio lo consagra expresamente para esa hipótesis...” (Sala Constitucional de la Corte Suprema de Justicia, voto 2005-02703, de las diez horas diecisiete minutos, del diez de marzo del dos mil cinco citado por Tribunal Contencioso Administrativo, Sección VI, voto 2010-02958, de las ocho horas, del diez de agosto de dos mil diez. En igual sentido, Sala Constitucional de la Corte Suprema de Justicia, votos 2014-005599, de las catorce horas treinta de abril de dos mil catorce; 2004-14210, de las quince horas cuatro minutos, del catorce de diciembre del dos mil cuatro y 2003-00136, de las quince horas veintidós minutos, del quince de enero del dos mil tres. En similar posición, Nombre85 (Mario), Secreto Bancario, en Nombre86 (Nombre87) y otros, Legitimación de Activos Ilícitos , Buenos Aires, Ad-Hoc, 2010, p.525. Noción que, sin duda, se encuentra estrechamente vinculada con la Ley 7425, a la que la norma 24 remite y especialmente, al artículo primero, que impone como competencia exclusiva de los Tribunales de Justicia, la potestad de “autorizar el registro, el secuestro o el examen de cualquier documento privado, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a su conocimiento”, siendo que exclusivamente, el artículo 615 del Código de Comercio, recoge lo referente al tema del secreto bancario en contratos de cuentas bancarias, señalando 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 Financieras, o la Dirección General de Tributación autorizada al efecto”. (Así reformado por Ley 9068, Ley para el cumplimiento del estándar de Transparencia Fiscal, del 10 de setiembre de 2012. El suplido es nuestro). Desde las regulaciones presentes en ambas normas, resulta manifiesto que en nuestro sistema jurídico, el secreto bancario constituye una derivación del derecho fundamental a la intimidad, que presenta como requisito fundamental para ser infringido, el dictado de una resolución emitida por un ente jurisdiccional competente. No obstante, por su naturaleza, también puede ser disponible a través de la autorización libre y voluntaria del titular de la cuenta. Empero, en cualquiera de las dos opciones, su utilización no es restringida a la causa penal en la que se realizó el levantamiento de los documentos bancarios. Debe reconocerse que la única restricción es con respecto a las comunicaciones escritas o telefónicas, que se encuentra contenida de manera expresa, en el numeral 28 de la Ley 7425, Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, que prohíbe concretamente el traslado de probanzas relacionadas con la intervención de comunicaciones escritas o telefónicas, cuando señala: “Artículo 28. Uso restringido de la información . Los resultados de la intervención de las comunicaciones orales y escritas no podrán ser utilizados para ningún propósito distinto del que motivó la medida” (El subrayado es nuestro), ya que debe recordarse que en el caso de las intervenciones de las comunicaciones orales, escritas, telefónicas o de cualquier otro tipo, el artículo noveno de la misma Ley 7425, al tratarse de la vulneración de un derecho fundamental, por el principio de proporcionalidad, puntualiza en una lista taxativa los delitos sobre los que es permitida esa restricción. Sobre el tema, nótese que tanto la jurisprudencia Constitucional como de esta Sala Tercera, han considerado, como una práctica violatoria del derecho a la intimidad, la utilización de los resultados obtenidos a través de intervenciones escritas u orales, dictadas en un proceso penal, que se utilizan en otro de la misma materia, o bien, verbigracia, dentro de procesos sancionatorios o disciplinarios (Ver en igual sentido, Sala Constitucional de la Corte Suprema de Justicia, voto 2014-004035, de las once horas, del veintiuno de marzo de dos mil catorce, en el que se hace alusión, igualmente, a los fallos 1571-96, de las doce horas treinta y seis minutos, del veintinueve de marzo de mil novecientos noventa y seis; 06378-1995, de las dieciséis horas, del veintidós de noviembre de mil novecientos noventa y cinco; y 2007-003890, de las quince horas y cincuenta y un minutos, del veinte de marzo de dos mil siete; 9421-02, de las dieciséis horas ocho minutos, del veintiséis de setiembre de dos mil dos; 1991-678, de las catorce horas dieciséis minutos, del veintisiete de marzo de mil novecientos noventa y uno; 1994-1026, de las diez horas cincuenta y cuatro minutos, del dieciocho de febrero de mil novecientos noventa y cuatro; 2268-03, de las dieciséis horas cuarenta y siete minutos, del dieciocho de marzo de dos mil tres. En igual sentido Sala Tercera de la Corte Suprema de Justicia, voto 2013-00073, de las nueve horas y siete minutos, del doce de febrero de dos mil trece). Empero, la restricción contenida en el artículo 28 de la Ley 7425, no podría aplicarse a la información bancaria privada, derivada del levantamiento del secreto bancario, puesto que esta únicamente esta referida a la intervención de comunicaciones orales y escritas. En cambio, el artículo 22 de la misma Ley, lo que contiene es un deber de confidencialidad a los encargados de intervenir esas comunicaciones, llámese estos, policías, auxiliares de la administración de justicia o juzgadores, cuando refiere expresamente, dentro del título de “RESPONSABILIDADES, PROHIBICIONES Y SANCIONES” que:“…A los funcionarios y empleados participantes en la intervención de las comunicaciones, el registro, el secuestro o el examen de documentos o a quienes tengan la potestad de solicitar estas medidas, se les prohíbe lo siguiente: 1. Utilizar los resultados de la intervención para propósitos distintos de los que la motivaron…”. Lo anterior, evidencia que se trata de dos situaciones disímiles, ya que no existe alguna norma, dentro de la Ley 7425, que restrinja el traslado de probanzas derivadas de la información bancaria obtenida de otro proceso, lo que conlleva a establecer, que a falta de prohibición expresa, dichas probanzas, cumpliendo con los requisitos de prueba trasladada, exigidos por la doctrina, pueden ser utilizadas en ulteriores procesos, eso sí, de naturaleza penal. Sobre el tema, con base en los principios de libertad y amplitud probatoria, unidad de jurisdicción y economía procesal, la posición mayoritaria de la doctrina procesal penal, ha admitido con respecto a la actividad probatoria, el concepto de "prueba trasladada”, “prueba prestada" o “traslación de la prueba” como aquella probanza que ha sido producida para un determinado proceso y que se hace valer en otro. Así, para el autor Nombre88, la prueba trasladada no es otra cosas que aquella que "...se práctica o admite en otro proceso y que es presentada en copia auténtica o mediante el desglose del original, si la ley lo permite" (Nombre88 (Nombre89), Teoría General de la Prueba Judicial , Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.367), mientras que para Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, citado en Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), en Nombre94 (Nombre95) y otros, Tratado de la Prueba , Editorial Librería de la Paz, 2007, p.367, se trata de "aquella que es producida en un proceso para en él generar efectos, siendo después transportada documentalmente a otro, pasando a generar efectos en proceso distinto". Para ambos autores resulta, como regla general, para aplicar el traslado de la prueba, que si es inexistente una regulación en contrario, que Nombre02 lo prohíba, cualquier probanza puede ser útil en uno o varios procesos, de ahí que, como requisitos esenciales para la admisibilidad de dicha prueba, el mismo autor Nombre93 (Nombre10), Prueba Trasladada (o producida en otro expediente judicial), en Nombre94 (Nombre95) y otros, Tratado de la Prueba, Editorial Librería de la Paz, 2007, p.371-377, ha descrito al menos cinco presupuestos para su validez: 1.Participación de la contraparte en la producción de la prueba: es decir, que en la obtención de la prueba trasladada deben haberse garantizado los principios de contradicción y defensa (En igual sentido, Nombre88 (Nombre89), Teoría General de la Prueba Judicial , Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.367 y 373). 2. Identidad de partes: para la doctrina mayoritaria, según Nombre93, la prueba prestada no debe poseer la característica de identidad de partes en ambos procesos, sino que el afectado(a) haya tenido en el proceso anterior la posibilidad del contradictorio. 3. Recolección de prueba en proceso jurisdiccional: por el principio de unidad jurisdiccional, para que la prueba prestada sea válida es imprescindible que su recolección se haya producido con motivo de un proceso de orden jurisdiccional (En igual sentido, Nombre88 (Nombre89), Teoría General de la Prueba Judicial , Tomo I, Buenos Aires, 5ta Edición, Editor Nombre90. de Zavalía, 1981, p.373). 4. Identidad de hechos: por el principio de nen bis in ídem, no sería necesaria la identidad absoluta de los hechos de ambos procesos, sino al menos una simple relación. 5. Cumplimiento de formalidades legales: de acuerdo con Nombre93, para que el traslado de la prueba en un segundo proceso sea válido y eficaz, es indispensable la regularidad de la prueba obtenida en el proceso originario. De este modo, en cuanto al último de los requisitos establecidos, es claro que si la regulación procesal en el ordenamiento restringe la actividad probatoria únicamente al caso concreto, el traslado de la prueba, de un expediente a otro, invalidaría esa probanza para el segundo proceso, aún cuando el origen del primero fuese válido. Al respecto, en el presente proceso, se han garantizado los principios de contradicción y defensa, ya que los imputados y sus defensas, han podido objetar esa prueba, hasta el punto que el Tribunal de Apelación de Sentencia Penal, la declaró ilícita. Igualmente, las probanzas 543, 544 y 545, fueron recolectadas dentro de un proceso jurisdiccional, donde existió una relación entre los hechos del primer proceso y los que el Ministerio Público investigó en esta otra causa, siendo que finalmente se presentó el cumplimiento de formalidades legales, Nombre02 como la inexistencia de una norma legal o supra legal, que impidiera la traslación de las mencionadas probanzas. (Sobre los requisitos de la prueba traslada, véase Nombre91 (Nombre92), El proceso en evolución ("O processo em evoluçâo"), Editorial Forense Universitaria, Sao Paulo, 1996, p.62, citado en Nombre93 (Nombre96), Prueba Trasladada (o producida en otro expediente judicial), en Nombre94 (Nombre95) y otros, Tratado de la Prueba , Editorial Librería de la Paz, 2007, p.367, citado en el acápite VI de esta sentencia). Justamente, véase que el exhorto enviado por el Juez Molina Elizondo al Gobierno de Bahamas, resultó fundamentado en los artículos 62, 65, 154, 180 y 181 del Código Procesal Penal, artículo 41 de la Constitución Política costarricense y los artículos 5 y 6 de la Convención de Viena, de manera que, sobre los requisitos exigidos por nuestra legislación referentes al exhorto, la resolución cumplió a cabalidad, no siendo de recibo, los cuestionamientos que apuntan a determinar su ilegalidad, a partir, de su traslado del expediente 04-005356-042-PE o Caja-Fischel, a la presente causa, ya que la Ley 7425, como se analizó supra, no contiene restricciones para este tipo de información, pues la única referencia a la prohibición de traslado de probanzas, está contenida en el artículo 28 de la Ley 7425, pero refiere a otros supuestos, sean las intervenciones de comunicaciones orales o escritas. Nombre02 las cosas, no encontrando esta Sala bajo la normativa señalada algún vicio que riña con los requisitos de la prueba trasladada, en aplicación del principio de libertad probatoria contenido en el artículo 182 del Código Procesal Penal, debe declararse la licitud de esas probanzas. Por lo demás, nótese que cuando el Tribunal de Apelación resolvió los cuestionamientos defensivos, también fue omiso en determinar la importancia procesal de dicho acervo probatorio, al prescindir en la construcción del razonamiento de examinar si ésta fue producto de fuente independiente o si, por el contrario se trató de una prueba derivada de otra trascendental para el proceso. En este sentido, dado que el Tribunal de Apelación declaró nula una prueba que no lo era, por la aplicación errónea de normas constitucionales y legales, la sentencia 2550-2012 carece de motivación suficiente y Nombre02 debe declararse. Pese a ello, en estricto apego a las restricciones legales incorporadas con la vigencia de la Ley 8837 a las competencias de esta Sala Tercera, en cuanto a la valoración probatoria, le corresponderá al Tribunal de Apelación de Sentencia, con una nueva integración, analizar conforme a las reglas de la sana crítica, las probanzas 543, 544 y 545, desde su valoración integral en consonancia con los elementos probatorios incorporados al debate. ii) La sentencia de segunda instancia presenta una infracción al principio de derivación, que impide su eficacia: Conforme a la fundamentación contenida en los folios 174525 a 174526 del tomo XLI del expediente, es claro que, el Tribunal de Apelación, en la sentencia 2012-2550, incurre en infracción a las reglas de la sana crítica, específicamente al principio de derivación, cuando afirma categóricamente que las pruebas 543, 544 y 545 son ilícitas e inutilizables dentro de este proceso, debido a que: “…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 puede intercambiar información disponible de sus cuentas por mera solicitud interna administrativa para el giro normal de sus actividades financieras (…) 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 [Nombre02 001], [Nombre01 028], [Nombre01 041] y [Nombre01 018]…” (Cf.f.174526 del tomo XLI del expediente. El suplido es nuestro), mientras que de la prueba 413, vinculada al oficio del treinta y uno de enero de dos mil seis, suscrito por la Jefa de Gestión de Riesgos Operativos del BAC San José, [Nombre01 233] (Cf.f.6673 del tomo XV del expediente), se puede sustraer una conclusión diversa, ya que el mencionada documento, certifica que: “…De acuerdo con nuestro contrato de corresponsalía, en el cual BAC San José opera como banco agente de BAC Bahamas Bank Limited y debidamente autorizados por la asesoría legal y la Administración de dicha institución procedemos a realizar las siguientes aclaraciones relacionadas con la información entregada por BAC Bahamas al Fiscal General de Bahamas el pasado 9 de junio del 2005, documento con referencia CLE-GEN-00293, con lo que se da respuesta a su oficio No.40-FADECT-06-MM del 19 de enero de 2006./ Como parte de la información remitida por BAC Bahamas al Fiscal General de Bahamas el pasado 9 de junio del 2005 se entregaron fotocopias de los siguientes tres certificados de inversión con sus respectivos cupones (…) Estos certificados fueron recibidos por BAC San José(sic) el 15 de enero del 2002 para transferir a BAC Bahamas junto con un monto de $8,165.23 debitado de la cuenta No.[Valor 047] a Nombre01 de [Nombre01 018]. Con este dinero más el principal e intereses del certificado 720016762 a Nombre01 de [Nombre01 018] que suma $161,725, BAC Bahamas constituyó el 15 de enero del 2002 el certificado No.720096897 a Nombre01 de [Nombre01 018] por $200,000…” (Cf.f.6673 del tomo XV del expediente). De este modo, es patente que de dicha probanza es posible derivar una relación comercial entre el BAC San José y el BAC Bahamas Bank Limited, lo que determina, sin lugar a dudas, la existencia de la mencionada corresponsalía entre las entidades bancarias arriba indicadas y que la conclusión del Tribunal de Apelación, no consideró en forma integral probanzas de valor transcendental como el contenido de la prueba 413, tomándose a la ligera la afirmación antedicha. iii) Tampoco valoró el Ad quem la probanza 110, que tiene especial relación con el material probatorio 543, 544 y 545. Dentro del concepto de secreto bancario, sostenido por la doctrina, “…existen límites (…) de carácter meramente privado o límites subjetivos, como son el consentimiento expreso del cliente, la información interbancaria o el interés legítimo del Banco al levantamiento del secreto bancario, éste último referido normalmente al caso de conflicto con el cliente…” (GUILLÉN FERRER), María José, El secreto bancario y sus límites legales (límites de derecho público), Tirant lo Blanch, 1997, p.115. En cuanto al consentimiento expreso del cliente, también se ha establecido que “…el fundamento del presente límite encuentra su razón de ser en el hecho de que (sic) el mismo titular del secreto, principal interesado de que (sic) se mantenga reserva, acceda en la revelación del secreto en sí mismo considerado como es la voluntad de ocultación. El consentimiento expreso del cliente al levantamiento del secreto bancario constituye un límite admitido unánimemente por la doctrina, de que de ponerse en relación con el carácter renunciable del derecho a la intimidad en general que tiene toda persona tanto física como jurídica. En consentimiento en estos casos no implica la absoluta abdicación de este derecho o una renuncia absoluta y abstracta al mismo, sino que se trata más bien de su desprendimiento parcial y voluntario de las facultades que confiere el derecho a la intimidad…” (GUILLÉN FERRER) María José, El secreto bancario y sus límites legales (límites de derecho público ), Tirant lo Blanch, 1997, p.115-116. Este límite subjetivo del secreto del derecho bancario, a diferencia de otros ordenamientos jurídicos, en nuestro país, legalmente se encuentra reconocido en los artículos 615 del Código de Comercio y 29 de la Ley 7425, ya que el levantamiento del secreto bancario puede derivarse tanto de una resolución judicial expresa, como por la respectiva autorización del titular de la misma. No obstante, en el caso concreto, nunca fueron examinadas esas probanzas con relación a las autorizaciones emitidas por el imputado [Nombre01 028] y [Nombre01 221] quienes, de manera libre y voluntaria, facultaron al Grupo Financiero Cuscatlán para suministrar cualquier información y documentación que solicitaran las Autoridades Judiciales de Costa Rica, referentes a sus cuentas bancarias y menos se examinó que esos Bancos, a la luz de los artículos 141, 145 y 147 de la Ley Orgánica del Banco Central de Costa Rica, presentan la particularidad de conformar un grupo financiero, con sede en Costa Rica, donde la información de esas cuentas era almacenada en nuestro país, lo que permitió establecer que todos los movimientos en las cuentas se realizaron desde Costa Rica. Sobre el particular, debe reconocerse que el numeral 29 de la Ley 7425, establece que: “No existirá intromisión ilegítima cuando el titular del derecho otorgue su consentimiento expreso. Si son varios los titulares, deberá contarse con el consentimiento expreso de todos . Este consentimiento será revocable en cualquier momento ” (El suplido es nuestro), lo que implica que ese derecho a la intimidad, es disponible por el titular de la cuenta, de tal manera que, el sujeto puede renunciar a él, mientras lo haga de manera libre y espontánea, ya que el secreto bancario por pertenecer a la persona física, es disponible de manera individual o por medio de una persona jurídica. (Ver en igual sentido, Nombre85 (Mario), Secreto Bancario, en Nombre86 (Nombre87) y otros, Legitimación de Activos Ilícitos , Buenos Aires, Ad-Hoc, 2010, p.525.), de modo que, si el coimputado [Nombre01 028] y su esposa decidieron, mediante sendos oficios, develar sus cuentas frente a terceros, dado el proceso penal que se seguía en su contra, no encuentra esta Sala ilegalidad alguna siendo, por el contrario, que se considera que dicha prueba debió ser analizada por el Tribunal competente a la luz de las probanzas 543, 544 y 545, lo que se denota ausente en el caso de marras. En definitiva, de conformidad con los artículos 467, 468, 469 y 471 del Código Procesal Penal, los motivos primero, segundo y tercero de la Sección Tercera del Recurso de Casación del Ministerio Público se declaran con lugar, por lo que por estos motivos, se anula la sentencia absolutoria decretada a favor de [Nombre01 001], [Nombre 028], [Nombre 041], [Nombre 018], [Nombre 022], [Nombre 033] y [Nombre02 006]…”. Como se extrae del texto antes transcrito, la Sala Tercera concluyó que las pruebas números 543, 544 y 545 eran lícitas, tal y como lo había indicado el tribunal de mérito. Específicamente, el órgano de casación estimó que por no estar proscrito por el ordenamiento jurídico, no había ningún impedimento para trasladar la información relacionada con el BAC Bahamas Bank Limited, obtenida en el proceso 04-005356-042-PE, conocido como Caja-Fischel, a la presente causa. Del mismo modo, concluyó con base en la prueba N° 413, que había un contrato de corresponsalía con ocasión del cual el BAC San José operaba como banco agente de aquel . Así las cosas, al acoger los reclamos formulados por el órgano requirente, la Sala dejó zanjados los cuestionamientos planteados por el defensor de [Nombre01 018] y por el mismo imputado, ya que en razón de lo primero (la legitimidad del traslado de prueba efectuado) se descarta que esa información debiese ponderarse únicamente en el proceso c.c. Caja-Fischel, o que fuese necesario cumplir en este asunto con los requisitos que ya habían sido satisfechos en el proceso originario (p. ej., la resolución judicial que autorizó el levantamiento del secreto bancario). También por lo anterior, pierde interés que al traducir la carta rogatoria del inglés al español, se omitiese contemplar un dato contenido en la enviada a Bahamas, a saber, la indicación de que las pruebas se emplearían únicamente para dilucidar los hechos investigados en el caso c.c. Caja-Nombre01 (cfr. folios 6.628 y 6.6524 del tomo XV). Esto en la medida en que tal afirmación, que en la carta rogatoria se inserta en el acápite destinado a explicar la pertinencia de la prueba solicitada (f. 6.628 frente, segundo párrafo), no cambia el hecho de que dentro de la ley N° 7425 no hay norma alguna que prohíba trasladar la información bancaria obtenida en un procedimiento a otro, único supuesto en el cual, según la Sala Tercera, la prueba trasladada resultaría ilícita. De igual forma, en razón de lo segundo (la existencia del contrato de corresponsalía entre el BAC San José y el Bahamas Bank Limited que para el órgano de casación, se deriva razonablemente de las probanzas, en particular de la N° 413), el banco local no tenía impedimento alguno para entregar la información cuestionada. Finalmente, la Sala Tercera, al ordenar el reenvío, dispuso que este despacho analizara las probanzas 543, 544 y 545, “… desde su valoración integral en consonancia con los elementos probatorios incorporados al debate”. En cuanto a esto, cabe hacer dos consideraciones. La primera, es que el recurrente no está cuestionando el examen que el tribunal de mérito hizo de tales pruebas, o las conclusiones que derivó de ellas, sino su legitimidad, al entender que fueron obtenidas e incorporadas al procedimiento de manera irregular, punto que como ya se explicó, fue zanjado en casación, concluyendo que la prueba es lícita. La segunda es que en efecto, tal y como señaló el a quo a folio 15.323 frente del tomo XXXI y sugiere la Sala Tercera en su resolución, específicamente a folios 176.472 frente a 176.473 vuelto, la citada prueba tampoco tiene la esencialidad que se pretende, ya que se cuenta con otras probanzas que permiten establecer el tránsito de los fondos, a saber, la información recabada en relación con las transacciones efectuadas por [Nombre01 058]. a través de las distintas entidades que conforman el Grupo Financiero Cuscatlán, de especial importancia, la prueba Nº 132, folios 28 al 33 que ha tenido a la vista esta cámara y en donde figuran los tres certificados de inversión originales y sus respectivos cupones, todos con los sellos de recibido del BAC San José y el endoso del BSJ International Bank. Nombre02 las cosas, los motivos deben rechazarse, no solo porque las pruebas números 543, 544 y 545 han sido consideradas lícitas por la Sala Tercera que, en lo medular, confirmó lo expuesto por el tribunal de mérito, sino también porque se cuenta con otras probanzas que de igual manera, permiten asociar a [Nombre01 018] con la admisión de los certificados en cuestión. Por lo expuesto, se declara sin lugar el reproche.

XXIX.- Por la relación existente, se resolverán de forma conjunta los motivos cuarto al séptimo, décimo primero y duodécimo de los recursos. Cuarto motivo. Ausencia de la determinación circunstanciada del hecho que el tribunal estima acreditado, en violación al artículo 369 inciso b) del CPP. En este punto, se reclama: “… El Considerando X de la sentencia, que obra a Folios 1555 in fine y siguientes se refiere a la denominada Fundamentación probatoria intelectiva y jurídica respecto a la conducta de [Nombre01 018], culpabilidad y sanción a imponer. Se inicia describiendo mediante una sinopsis una conducta delictiva que deriva, según las Juezas de mayoría, del ofrecimiento y posterior pago de una dádiva al imputado [Nombre01 018] , para culminar en una sentencia condenatoria por un delito de enriquecimiento ilícito. Hay que preguntarse entonces: si la condenatoria a [Nombre01 018] es por el delito de enriquecimiento ilícito, que requiere únicamente la admisión de dádivas, qué importancia tiene el tema de una oferta u ofrecimiento para los efectos de la tipicidad de la conducta? Refieren las Juezas al Folio 1561 que el dinero recibido por [Nombre01 018] lo fue en carácter de dádiva, lo cual refuerza que la razón de la condenatoria es únicamente por esa presunta recepción y no por aceptación de promesa alguna y menos por realizar acciones de ninguna clase como contraprestación por la dádiva que recibió, según el voto de mayoría. Pero a Folio 1567 nuevamente se refieren las Juezas al tema de una promesa, cuando indican que a [Nombre01 018] se le hizo una PROMESA REMUNERATORIA semejante a la que se le hizo a [Nombre01 064] y que ese panorama, indican las Juezas, ES DETERMINANTE PARA LA RESPONSABILIDAD DE [Nombre01 018]. Así, Señores Magistrados, qué es lo que se tiene por probado por las Juezas de Mayoría: la promesa remuneratoria o la recepción del dinero o ambas. Si en el punto C) que inicia a Folio 1567 se determina que se celebró una reunión entre [Nombre01 018], [Nombre01 063] y [Nombre01 041] y su única prueba es una factura que señala el pago de una cuenta en el café [...] que indica en su respaldo que se trata de un desayuno a las 8:21 horas del 17 de agosto del año 2000, según indica la prueba 81, es evidente que para las Juezas es fundamental probar que se celebró la reunión y que en [Nombre01 274] le hizo una promesa remuneratoria a [Nombre01 018], pues en caso contrario no tendría importancia alguna la referida reunión sino únicamente utilizarían su tiempo para probar la presunta recepción de las dádivas y no su ofrecimiento …” (F. Telf01 y Telf02 frente). En el recurso se afirma que para sobredimensionar el actuar de [Nombre01 018], “lo ponen a aceptar una promesa remuneratoria derivada de una reunión con [Nombre 041] , que se prueba con solo un voucher de un pago por tarjeta...” (Telf04 frente). Las juezas reconocen que no hay prueba directa sobre “la oferta de promesa remuneratoria de [Nombre01 041] a [Nombre01 018]”, pero concluyen que aquella se extrae de la prueba directa que hay sobre los hechos anteriores y posteriores. Esto, dice el recurrente, es increíble. No hay prueba al respecto, nadie manifestó qué se dijo en esa reunión, de ahí que pudo versar sobre cualquier otro tema. Nadie los vio en ese lugar, nadie declaró sobre la celebración del encuentro, pero la sola existencia del voucher, para el voto de mayoría, es prueba de la reunión. Con esa misma tesis, ironiza el defensor, [Nombre01 041] pudo haber dicho en el justificante del gasto que almorzó con el [...] Nombre25 eso sería prueba suficiente de ello. Agrega que esto deja una duda sobre cuál es el hecho que se tiene por probado, a saber, si la existencia de la promesa remuneratoria de [Nombre01 041] a [Nombre01 018], la recepción de las dádivas, o ambas. Hay una diferencia entre que se pretenda tener por probada la promesa remuneratoria, o bien, la sola recepción de la dádiva. Quinto motivo. Insuficiente fundamentación de la sentencia e inobservancia de las reglas de la sana crítica, con violación a los artículos 142, 184 y 369 inciso d) del CPP. Cuestiona de nuevo el tener por demostrada una oferta de dádiva sin prueba para ello, valiéndose únicamente del justificante del gasto de la tarjeta de [Nombre01 041], que habla de un desayuno con [Nombre01 018] y [Nombre01 063]. Esto prueba que [Nombre01 041] justificó el gasto, pero no comprueba que la reunión efectivamente haya tenido lugar. Menos todavía se puede derivar de esa prueba el contenido de la reunión y sus consecuencias: “No es posible que la recepción de las dádivas presuma su ofrecimiento, ya que ello haría desaparecer la diferencia entre la aceptación de dádivas por acto cumplido y el cohecho o la corrupción agravada. No Nombre11 que se percibe la dádiva ella ha sido ofrecida previamente...” (F. 172.755 frente). Sexto motivo. Insuficiente fundamentación de la sentencia e inobservancia de las reglas de la sana crítica, con violación a los artículos 142, 184 y 369 inciso d) del CPP. En este motivo se afirma: “… El Considerando X-D de la sentencia que corre a Folios 1572 al 1579 pretende demostrar que [Nombre01 018] recibió un pago fraccionado de la dádiva ofrecida en una fecha determinada. Ya se indicó que las Juezas de mayoría erróneamente estiman que en una reunión celebrada el 17 de agosto del 2000 a las 8:21 horas se le ofreció a [Nombre01 018] el pago del 0.5 por ciento del contrato que se obtuviera..., así, con semejante precisión y detalle (Ver folio 1570). Para las Juezas esa determinación precisa pero falsa era importante, con el ánimo de endilgarle a [Nombre01 018] una recepción fraccionada de una dádiva aceptada y ofrecida previamente. Veamos. El tipo penal del Artículo 346 inciso c) por el cual las Juezas sancionan a [Nombre01 018] establece que se comete ese delito cuando se admitan dádivas... MIENTRAS SE PERMANECE EN EL EJERCICIO DEL CARGO. [Nombre01 018] dejó de ser Diputado a la Asamblea Legislativa el 30 de abril del año 2002, por lo que cualquier recepción de dineros por parte de [Nombre01 091] con posterioridad a esa fecha estaría fuera de la tipificación delictiva. Los denominados primeros certificados de inversión se indica que fueron depositados en cuentas de [Nombre01 018] en el mes de enero del año 2002, siendo aquel Diputado a la Asamblea Legislativa, lo que genera otros problemas de tipicidad y de prueba que serán discutidos posteriormente. Pero ahora nos limitaremos a las transferencias y presuntas dádivas giradas con posterioridad al 30 de abril del 2002, es decir, entregadas a [Nombre01 018] cuando éste ya no permanecía en el ejercicio del cargo y por lo tanto sin reunir las características de delictivas, al tenor del tipo penal descrito. Pero forzando plenamente la evidencia, las Juezas de mayoría señalan que los pagos posteriores al 30 de abril estaban ofrecidos y aceptados por [Nombre01 018] desde ese 17 de agosto del año 2000. Como ya demostramos, es imposible derivar de la evidencia que esa reunión se hubiese celebrado y, en caso de aceptarse su existencia, sí es materialmente imposible conocer lo discutido en ella y menos precisar en detalle su contenido con la exactitud que derivan las Juezas …” (F. 172.756 frente). Según explica el recurrente, al no ser posible establecer que [Nombre01 041] le ofreció pagos fraccionados a [Nombre01 018], cualquier recepción de dinero hecha con posterioridad al 1° de mayo de 2002 no sería delictiva, al no ostentar [Nombre01 018] el cargo por el cual presuntamente se le ofrecieron las dádivas. Reitera que la sentencia quebrantó las reglas de la sana crítica al concluir que existió una promesa de pago fraccionado de [Nombre01 041] a [Nombre01 018] y que solo se puede probar esta promesa a través de un acto “imaginativo y creacionista” de las juezas. Se finaliza el acápite señalando que no se puede demostrar la existencia de una promesa de pago fraccionada y que por ende, siendo que para los pagos posteriores al 30 de abril de 2002 [Nombre01 018] no ejercía el cargo público, la conducta de este sería impune. Séptimo motivo. Inobservancia y errónea aplicación de la ley sustantiva, con infracción al artículo 369 inciso j). Según el tribunal, existió una promesa remuneratoria fraccionada en dádivas de parte de [Nombre01 041] a [Nombre 018], la cual no es real. El período legislativo de [Nombre01 018] se extendió del primero de mayo de 1998 al 30 de abril de 2002 (folio 1557 de la sentencia) y por ello, las dádivas que supuestamente recibió luego de esta última fecha, serían impunes. Por otra parte, la sentencia pretende probar que [Nombre01 091], por medio de [Nombre02 058], le pagó dádivas a [Nombre01 018]. Sobre el tema, se afirma: “… Observemos en detalle cada una de esas denominadas entregas, siendo que las dos primeras se hicieron, según las Juezas, entre enero y febrero del 2002, es decir, cuando [Nombre01 018] era aún Diputado, a lo que nos dedicaremos en otro aparte. Analizaremos ahora entonces las entregas desde la tercera hasta la séptima. Tercera entrega: se detalla al folio 1584 al 1587. Según las Juezas, los fondos salen de la cuenta de [Nombre01 058] y llegan por medio de [Nombre01 063] a poder de [Nombre02 018] en enero y octubre del 2003 por un monto total de 55.000 dólares. En esas fechas [Nombre01 018] ya no ocupaba el cargo de Diputado, ya que desde el 8 de mayo del 2002 era el Presidente Ejecutivo de la CCSS, puesto absolutamente diferente al de Diputado, sin relación alguna con él y menos aún con las actividades de [Nombre01 091] . Por ello es claro que, de existir tales transferencias y entregas de dinero, que no es tal, como se analizará más adelante, serían atípicas, por recibirse cuando ya no permanecía en el ejercicio del cargo, que es un elemento del tipo penal del enriquecimiento ilícito. Cuarta entrega: se detalla al folio 1587 al 1598. Según las Juezas, existen 19 certificados de inversión entregados por [Nombre01 018] a [Nombre01 158] que no están incluidos en la acusación, por lo que no pueden servir de base para la condenatoria, pero en todo caso todos ellos son emitidos con posterioridad al 1 de mayo del 2002, como consta al Folio 1594, ya que el primero de ellos es del 2 de julio de ese año, más de dos meses después de que [Nombre01 018] dejara el cargo de Diputado. Pero en todo caso la recepción de tales certificados de inversión no es un hecho acusado. El único que se denuncia es el número [Valor 041] por 50.000 dólares que se describe al folio 1596 y según las Juezas se entrega a [Nombre01 018] el 5 de mayo del 2003, más de un año después de haber dejado el cargo de Diputado, por lo que su presunta recepción devendría en atípica. Quinta entrega: se detalla a folios 1598 al 1607. Según las Juezas, a través de la empresa [Nombre 215], [Nombre 018] recibe tres transferencias por 55.000 dólares el 17 de julio del 2003, 275.000 dólares el 27 de octubre del 2003 y 100.000 dólares el 7 de enero del 2004, como indican al folio 1598 in fine. Todas ellas son evidentemente posteriores al 1 de mayo del 2002 y se transferirían, de ser cierto que eran dirigidas a [Nombre01 018] , 14 meses, 17 meses y 20 meses después, respectivamente, de haber dejado el cargo de Diputado, por lo que su recepción eventual devendría en atípica. Sexta entrega: se detalla en folios 1607 al 1608. En forma totalmente malintencionada, se repite la transferencia del 27 de octubre del 2003 señalada en el punto anterior, con el espurio ánimo de inflar y sobredimensionar la conducta de [Nombre01 018]. Séptima entrega: se detalla a folios 1608 al 1613. De nuevo, en forma malintencionada, se repite la transferencia del 7 de enero del 2004. Nombre02 no son siete entregas sino cinco las que analizan las Juezas, las otras dos las repiten con aviesas intenciones. Pero lo peor es lo que señalan al Folio 1610, cuando indican que todas esas sumas que le atribuyen haber recibido a [Nombre01 018] provienen de una sola acción de enriquecimiento ilícito y que las reciben a finales del 2001 e inicios del 2002. INCREÍBLE. Está evidenciado que no existieron la sexta y la séptima entregas, que no son más que repeticiones de las anteriores. Está demostrado que es imposible probar que hubiera existido una promesa remuneratoria en agosto del 2000 por el total de las dádivas y que se tratare entonces de pagos fraccionados de una dádiva total ya admitida desde ese año 2000, como malévolamente señalan las Juezas …” (F. 172.757 y 172.758 frente). Todo pago, dádiva o transferencia de dinero que haya recibido [Nombre01 018], presuntamente, con posterioridad al 1° de mayo de 2002, es un hecho atípico, en razón de que él ya no ocupaba el cargo de diputado, oficio en cuya condición, según se afirma en el fallo, recibió esas sumas de dinero. Décimo primer motivo. La sentencia es insuficiente en la fundamentación de la determinación del quantum de la pena impuesta a [Nombre01 018] y en la negativa a otorgar la condena de ejecución condicional, con violación de los artículos 59, 60 y 71 del Código Penal y 367 y 369 incisos d) e i) del C.P.P. El tribunal impuso a [Nombre01 018] la pena de dos años de prisión (entiéndase, la pena máxima) por un delito de enriquecimiento ilícito y le denegó el beneficio de la condena de ejecución condicional. El fundamento de ambas decisiones es insuficiente. En cuanto a lo primero, se consideró la comprensión del justiciable sobre sus actos, su inteligencia, la condición de diputado y su capacidad para ocultar su enriquecimiento ilícito. Ahora, el impugnante alega que “ si comprendía y actuaba de conformidad” es una condición que debe tomarse en cuenta para dictar la culpabilidad y no para imponer la pena. Además, su condición de diputado no es una circunstancia que justifique agravar la sanción, ya que esto llevaría a que cada vez que un diputado sea declarado culpable, haya que imponer la pena máxima. Véase además que [Nombre01 018] no realizó ninguna actividad como diputado en ejercicio de sus funciones, por lo que no se puso en peligro la función pública, ni los bienes del erario público. En cuanto al monto de la dádiva y que las juezas estiman en más de 500 mil dólares, cuestiona que se consideren las sumas que presumen recibió después de que dejó de ser diputado, en clara infracción al artículo 346 del Código Penal: “Así, de excluirse esa suma quedarían los 30.000 dólares que se estiman recibidos en la cuenta de Bahamas y cuya legalidad se cuestiona y los 40.000 que están constituidos por los certificados cuya entrega se debate en este recurso, pero aun aceptando como hipótesis la recepción de la dádiva cuando se mantenía en el cargo de Diputado, el monto de ella sería de un 15 por ciento de los que las juezas calculan, por lo que la pena jamás sería del máximo fijado ...” (F. 172.763 frente). En cuanto a lo ocurrido cuando ya no era diputado, por no ser punible, tampoco podría considerarse para aumentar la pena. Añade que lo relacionado con el vehículo de su hija y el presunto uso de las cuentas de [Nombre01 063] y [Nombre01 158], se refieren a montos supuestamente percibidos cuando el justiciable no ocupaba el cargo de diputado. De igual manera, estima que no está fundamentado el rechazo del beneficio de condena de ejecución condicional que regulan los artículos 59 y siguientes del Código Penal. Si bien es un beneficio y no un derecho para los imputados, el tribunal debió fundamentar la denegatoria, según lo ha expuesto la Sala Constitucional en la resolución Nº 3624-96. Véase que las juezas, para justificar la negativa, solo mencionan la participación delictiva desde la Asamblea Legislativa, el denominado daño social ocasionado y el monto de la dádiva presuntamente recibida. Señala el impugnante: “… Pasemos a analizar ese razonamiento: con esa tesis, los Diputados que sean condenados no pueden percibir el beneficio, lo que aplica indebidamente un derecho penal de autor y no del hecho. Basta que sea Diputado para denegar el beneficio. Se refiere a un daño social ocasionado, cuando en la misma sentencia se omite pronunciamiento acerca de la acción civil resarcitoria Nombre03 que reclama ese presunto daño, por lo que es contradictorio que se utilice la presunta existencia del daño y no se resuelva acerca del mismo. En cuanto al monto de la dádiva, ello no tiene relación con los requisitos para que proceda el beneficio, que están incorporados en el Artículo 60 del Código Penal, al que en ningún momento se refirió el Tribunal, lo ignoró completamente, como si no existiera y denegó el beneficio pretorianamente sin sustento legal alguno …” (F. Telf03 y Telf05 frente). Por lo anterior, solicita se anule la pena impuesta, o al menos el rechazo del beneficio de la ejecución condicional de la pena. Duodécimo motivo. La sentencia no aplica las reglas de la sana crítica ni fundamenta en absoluto y se aparta de las disposiciones que regulan la pena de inhabilitación, cuando sanciona a [Nombre01 018] con doce años de inhabilitación para obtener y ejercer empleos, cargos o comisiones públicas, con infracción de los artículos 142, 184 y 369 incisos d) e i) del C.P.P. y 50, 57, 58 y 358 del Código Penal. Si bien es facultad de los jueces sancionar con inhabilitación, se debe fundamentar su aplicación, Nombre02 como su duración, lo que no sucede en este caso. El tema se justificó en dos líneas, a folio 1.625 in fine . Se impuso inhabilitación por doce años y no se explican las razones por las cuales se estima procedente esta pena, como tampoco la elección de ese quantum. No se explica por qué abarca todo “ empleo público” y no sólo los de elección popular, que era el que ocupaba [Nombre01 018] al cometer el delito. El impugnante considera que el fallo es nulo en este extremo, por ausencia total de fundamentación.

XXX.- Los reproches deben acogerse parcialmente, en los términos y con las consecuencias que se dirán. Con el propósito de lograr una mayor claridad expositiva, se hace necesario reproducir algunos de los hechos acusados por el órgano requirente y aquellos que el tribunal tuvo por demostrados en relación con [Nombre01 018]: “…220) Fue Nombre02 que entre los meses de julio y agosto de 2000, el imputado [Nombre01 018] y [Nombre01 063] mantuvieron reuniones con el encartado [Nombre02 041] y el indiciado [Nombre01 078], en las cuales se continuó tratando el tema de la falta de apertura por parte del I.Nombre72 a las licitaciones públicas en materia de la telefonía celular. En uno de estos encuentros el imputado [Nombre01 041] y el indiciado [Nombre01 078], le ofrecieron al imputado [Nombre01 018] en consideración a su oficio, la entrega de una dádiva consistente en dinero si se lograba la apertura a las licitaciones públicas en el I.C.E, equivalente a un 0.5 % del contrato que se obtuviera. 221) En virtud de lo anterior, el acusado [Nombre01 018] muestra su anuencia al ofrecimiento de la dádiva y decidió compartirla, con [Nombre01 063], por haber logrado el contacto con los corruptores. 222) Tal como había sido acordado, una vez que se logró la adjudicación de la licitación pública abreviada a favor de [Nombre01 060] , el acusado [Nombre01 041] de común acuerdo con el indiciado [Nombre01 078] iniciaron la entrega en forma fraccionada de la dádiva que había sido prometida al coimputado [Nombre01 018] en consideración a su oficio. 223) Para ello, utilizaron la modalidad de pago empleada con otros de los imputados funcionarios del I.C.E, canalizando los fondos a través del acusado [Nombre01 028] y su empresa [Nombre01 058]. 224) De tal forma, en fecha 10 de diciembre de 2001 el acusado [Nombre01 028], conforme al plan que previamente había trazado con el indiciado [Nombre01 078] y el acusado [Nombre01 041], del dinero previamente transferido por la empresa [Nombre01 060], giró el cheque Nº 301 por setecientos cincuenta y cinco mil ciento veintitrés dólares ($755.123) contra la cuenta de [Nombre 058] . en el Cuscatlán International Bank y en fecha 10 de diciembre de 2001, adquirió con esa suma, una serie de certificados de inversión al portador con el Banco Cuscatlán de Costa Rica, entre los que se encontraban los Nºs Identificacion18 Identificacion19 y Identificacion20 cada uno por la suma de diez mil dólares ($10.000), y giró instrucciones al ente financiero para que los títulos fueran depositados en la cuenta Nº [Valor 060] a Nombre01 de BSJ International Bank con el Banco San José. 225) En fecha 15 de enero de 2002, el acusado [Nombre01 018], mientras permanecía en el ejercicio del cargo de diputado, admitió la dádiva que le fue presentada en consideración a su oficio al recibir en el BAC San José los tres certificados anteriores, que sumaron treinta mil dólares ($30.000). En esa misma fecha inició el disfrute del dinero ilícito recibido; para ello giró instrucción al ente bancario para que a estos fondos se les sumaran ocho mil ciento sesenta y cinco dólares con veintitrés centavos ($8.165.23) de su cuenta Nº [Valor 047] con el BAC San José y $161.725 correspondientes al principal y cupón del certificado de inversión Nº 720016762, con el fin de alcanzar el total de doscientos mil dólares ($200.000) en el BAC International Bank, monto con el que adquirió a su nombre, el certificado Nº 720096897 de la misma entidad bancaria en Bahamas. 226) Asimismo, con los fondos señalados en el hecho trasanterior, el encartado [Nombre01 028] adquirió los certificados de inversión Nº 224-002-0037278 y Nº 224-002-0037286 del Banco Cuscatlán de Costa Rica por la suma de diez mil dólares ($10.000.00) cada uno, emitidos al portador y con vencimiento al 11 de enero de 2002, los cuales hizo llegar a [Nombre01 063]. Una vez en su poder, [Nombre01 063] endosó los certificados con los respectivos cupones de interés y los depositó en la cuenta Nº [Valor 048] de Inversiones Sama S.A., con el Banco Nacional, por un total de veinte mil setenta y tres dólares con dieciocho centavos ($20.073.18); luego solicitó un cheque por tres mil dólares ($3.000) y los restantes diecisiete mil setenta y tres dólares con dieciocho centavos ($17.073.18) los invirtió en la compra de participaciones en Sama Fondo de Ingreso Mensual Dólares. 227) El 10 de enero de 2002, el imputado [Nombre01 041] continuó con la entrega de la dádiva ilícita a favor del acusado [Nombre01 018] , siguiendo con lo convenido sobre la distribución de los fondos con el encartado [Nombre02 028] . De esta forma aplicó un débito a la cuenta de [Nombre 058] . Nº [Valor 012] con el Cuscatlán International Bank por sesenta mil dólares ($60.000) y adquirió seis certificados, entre ellos los números 224-002-003852-2, 224-002-003853-3, 224-002-003854-1, 224-002-003855-0 del Banco Cuscatlán de Costa Rica por diez mil dólares ($10.000) cada uno emitidos al portador. Estos títulos le fueron entregados por [Nombre01 028] a [Nombre02 018], quien los admitió el 11 de febrero de ese mismo año , fecha de su vencimiento, de inmediato los endosó y depositó en su cuenta Nº [Valor 047] con el BAC San José, junto con los cuatro cupones de intereses por un total de $129.16. 228) Asimismo, los otros dos certificados Nº 224-002-0038517, 224-002-0038568, con fecha de vencimiento al 11 de febrero de 2002 y emitidos al portador, entre los días 9 de enero y 11 de febrero de 2002, fueron entregados a [Nombre01 063], quien a su vencimiento entre los días 11 y 13 de febrero de 2002 los endosó y depositó en su cuenta del Scotiabank, S.A. Nº [Valor 061] , con sus respectivos cupones de intereses que ascendían a $64.58. 228) Asimismo, los otros dos certificados Nº 224-002-0038517, 224-002-0038568, con fecha de vencimiento al 11 de febrero de 2002 y emitidos al portador, entre los días 9 de enero y 11 de febrero de 2002, fueron entregados a [Nombre01 063], quien a su vencimiento entre los días 11 y 13 de febrero de 2002 los endosó y depositó en su cuenta del Scotiabank, S.A. Nº [Valor 061] , con sus respectivos cupones de intereses que ascendían a $64.58.229) Sin precisar fecha pero al finalizar el año 2002, luego de que el acusado [Nombre01 018] admitió la dádiva que le fue entregada en consideración de su oficio de diputado, sin habérsele hecho la entrega total de la misma y sin que hubiese un acuerdo previo de colaboración, fragua un procedimiento para evitar que lo involucren directamente con el delito y desviar los controles del sistema bancario nacional. Para ello, le solicitó al acusado [Nombre01 063] un número de cuenta para recibir parcialmente la dádiva; a sabiendas del origen ilícito del dinero, [Nombre01 063] le suministró el número de cuenta bancaria Nº [Valor 059] con el Banco Internacional de Costa Rica (BICSA) en la Agencia en Miami, dato que [Nombre01 018] transmitió a [Nombre02 041], quien a su vez lo refirió al imputado [Nombre02 028] . 230) De tal modo, en fecha 16 de enero de 2003, el acusado [Nombre01 028], mediante su sociedad [Nombre02 058]. ordenó al Cuscatlán International Bank & Trust, Co. Ltd., que se transfirieran cincuenta y cinco mil dólares ($55.000) a la cuenta Nº [Valor 059] del encartado [Nombre01 063], pero destinados a [Nombre01 018], mediante aplicación de un decremento a la inversión a la vista Nº Identificacion21 por la citada suma. 231) Con la acreditación de los cincuenta y cinco mil dólares ($55.000) a su favor, el 30 de enero de 2003, el acusado [Nombre01 063] adquirió en BICSA los certificados al portador Nºs 21792, 21793, 21794, 21795, todos por un monto de ocho mil novecientos veintiocho dólares con setenta y cinco centavos ($8.928.75), más los cupones de intereses por $74.44 para un total de treinta y cinco mil setecientos ochenta y nueve dólares con cuarenta y cuatro centavos ($35.789.44) y con fecha de vencimiento el día 28 de febrero del año 2003. Posteriormente, el acusado [Nombre01 063] se los entregó, previo endoso, al acusado [Nombre01 018]. 232) Una vez admitida esta parte de la dádiva con la intermediación de [Nombre01 063] , el coencartado [Nombre01 018], el día 03 de marzo de 2003, liquidó los certificados antes citados y depositó la suma de diecisiete mil ochocientos ochenta y nueve dólares con cuarenta y cuatro centavos ($17.889.44) en su cuenta Nº [Valor 047] del BAC San José; canceló ocho mil dólares ($8.000) en el pago de su tarjeta de crédito [Valor 050] del BAC San José y se dejó en dinero en efectivo la suma de nueve mil novecientos dólares ($9.900). 233) Para completar la entrega al encartado [Nombre02 018] de los cincuenta y cinco mil dólares $55.000 recibidos en su cuenta, el acusado [Nombre01 063] , en fecha 20 de octubre de 2003, compró el cheque de gerencia Nº 160258 emitido a su Nombre01 por BICSA por la suma de diecinueve mil setecientos noventa y cinco dólares ($19.795), que endosó y depositó en la cuenta de [Nombre02 018] Nº [Valor 047] con el BAC San José, el 28 de octubre de ese mismo año. 234) De esta forma, el acusado [Nombre01 063] ayudó a asegurar que el endilgado [Nombre02 018] obtuviera la suma de cincuenta y cinco mil quinientos ochenta y cuatro dólares y cuarenta y cuatro centavos ($55.584.44), como parte del enriquecimiento ilícito obtenido por haber admitido la dádiva entregada por los empleados de [Nombre01 091]. 235) En fecha no precisa pero aproximadamente a inicios del año 2003, el encartado [Nombre01 028], continuó con la entrega del resto de la dádiva proveniente de [Nombre01 060] vía [Nombre 058]., a favor del imputado [Nombre02 018] . Este último, con la finalidad de evadir los controles bancarios y disimular los ingresos que le incrementaban su patrimonio sin justificación válida, buscó una cuenta bancaria en el extranjero para recibir las sumas; de tal modo, [Nombre01 018] encubriendo el origen ilícito de los fondos y el motivo de su recepción, le pidió a [Nombre01 158] amigo de su confianza, que le prestara una cuenta bancaria fuera de Costa Rica, aduciendo que la necesitaba porque le iban a ingresar dineros de la venta de una propiedad y que deseaba mantenerlos en una cuenta fuera del país. Así, [Nombre01 158] le facilitó la cuenta bancaria inscrita a Nombre01 de la compañía de su propiedad [Nombre 215] . Nº [Valor 041] del BAC Panamá. 236) El día 2 de abril de 2003, el imputado [Nombre02 028] , mediante nota, solicitó la aplicación de un débito a la cuenta Nº [Valor 012] de [Nombre 058]. en el Banco Cuscatlán, por la suma de dos millones cuatrocientos cincuenta mil dólares ($2.450.000) y la emisión de 18 certificados de inversión entre los que se contemplaba el Nº Identificacion22 por cincuenta mil dólares ($50.000) con plazo a 33 días. Este título se le entregó a [Nombre01 018] quien Nombre11 con la finalidad de evadir ser descubierto en su delincuencia, el 05 de mayo de 2003 se lo dio a [Nombre01 158] para que lo depositara en la cuenta de [Nombre02 215]. A su vez, [Nombre01 158] le encargó a [Nombre01 225], empleado de su confianza, que realizara el trámite correspondiente, de tal modo [Nombre01 225] liquidó ese certificado junto con los cupones de intereses por $116.45 en el Banco Cuscatlán, y en la misma institución bancaria adquirió el cheque de gerencia Nº 16987-7 por cincuenta mil ciento dieciséis dólares con cuarenta y cinco centavos ($50.116.45) a favor de la empresa de origen panameño [Nombre01 215] ., el cual fue depositado en la cuenta Nº [Valor 041] del BAC International Bank Panamá el día 6 de mayo; logrando de esa manera [Nombre01 018] aumentar en forma ilícita su patrimonio con el dinero proveniente de [Nombre01 091], vía [Nombre 058] . 237) El imputado [Nombre01 018] le hizo saber al coencartado [Nombre01 028] el número de cuenta a Nombre01 de [Nombre01 215] en donde hacer llegar las entregas posteriores. Nombre02 en fecha 17 de julio de 2003, el acusado [Nombre01 028], como apoderado de [Nombre01 058]., continuó con la entrega de la dádiva ilícita a favor de [Nombre01 018] ; para ello nuevamente giró instrucciones a la entidad bancaria para que se aplicara un débito a la cuenta de su compañía y fuera transferida a la orden de [Nombre02 215] . a la cuenta Nº [Valor 041] en el BAC Panamá, la suma de cincuenta y cinco mil dólares ($55.000). 238) Con ciento cinco mil ciento dieciséis dólares con cuarenta y cinco centavos ($105.116.45) a su disposición en la cuenta de [Nombre02 215] ., sin precisar fecha, pero poco antes del día 11 de agosto de 2003, el acusado [Nombre01 018] le pidió a [Nombre01 158] ayuda en la compra de un vehículo para su hija [Nombre01 243]. [Nombre01 158] se puso en contacto con la encargada de ventas de la Agencia Purdy Motor, con quien coordinó la compra de un vehículo marca Toyota modelo RAV 4 y le dio el número telefónico del acusado [Nombre01 018] para que pactaran la compra. 239) A efecto de cancelar el vehículo, el acusado [Nombre01 018] le pidió a [Nombre01 158] un cheque por el valor del mismo. Nombre02 [Nombre01 158] giró el cheque nº 003 por la suma de veintitrés mil setecientos dólares ($23.700) de la cuenta corriente Nº [Valor 041] de su representada [Nombre 215] del BAC International Bank Panamá a favor del Banco San José, y le encargó a [Nombre01 225] que con el mismo adquiriera un cheque de gerencia a Nombre01 de Purdy Motor por la suma indicada. El 11 de agosto de 2003, [Nombre01 018] formalizó el traspaso del vehículo marca RAV 4, Toyota, color rojo, cuatro puertas, placa [Valor 052], a Nombre01 de [Nombre01 243] a quien se lo obsequió. 240) Continuando con la disposición del dinero proveniente de [Nombre01 060], el encartado [Nombre 018], utilizó los restantes ochenta y un mil cuatrocientos once dólares con cuarenta y tres centavos ($81.411.43) disponibles en la cuenta de [Nombre01 215] para unirlos a dinero de otra procedencia y adquirir una vivienda en el [...]. 241) El 27 de octubre de 2003, el acusado [Nombre01 028], ordenó que de la cuenta de [Nombre 058]., con el Banco Cuscatlán, se aplicara un débito por un millón setecientos cincuenta y ocho mil ochocientos setenta dólares ($1.758.870) y que se hiciera una transferencia a la cuenta Nº [Valor 041] de [Nombre 215]., con el BAC International Bank Panamá, por la suma de doscientos setenta y cinco mil dólares ($275.000), a fin de que este dinero fuera recibido por el encartado [Nombre01 018], depósito que se hizo efectivo el día 29 de octubre de 2003. 242) Finalmente, en fecha 07 de enero de 2004, el imputado [Nombre01 028] como apoderado de [Nombre 058]. giró instrucciones al Departamento de Banca Privada del Banco Cuscatlán para que se aplicara un débito por doscientos mil dólares ($200.000), y de esa suma enviar una transferencia por cien mil dólares ($100.000) a la cuenta de [Nombre 215]., Nº [Valor 041] con el BAC International Bank Panamá. 243) Según lo expuesto, el imputado [Nombre01 028] , mediante su empresa [Nombre 058]., transfirió un total de cuatrocientos ochenta mil ciento dieciséis dólares con cuarenta y cinco centavos ($480.116.45) de su cuenta Nº [Valor 012] con el Cuscatlán International Bank a favor de [Nombre02 215]., a la cuenta Nº [Valor 041] con el BAC International Bank en Panamá, para que fuera entregado al acusado [Nombre 018], ingreso efectivo que se redujo en $21.00 por aplicación de las comisiones bancarias, sea se acreditaron cuatrocientos ochenta mil noventa y cinco dólares con cuarenta y cinco centavos ($480.095.45); y en certificados de inversión del Banco Cuscatlán recibió setenta mil doscientos treinta y ocho dólares con noventa y tres centavos ($70.238.93); es decir, por esta vía [Nombre02 018] admitió quinientos cincuenta mil trescientos sesenta dólares con treinta y ocho centavos ($550.360.38). Por otra parte, por medio de [Nombre01 063] admitió además la suma de cincuenta y cinco mil quinientos ochenta y cuatro dólares con cuarenta y cuatro centavos ($55.584.44), completando la recepción de la dádiva en ocasión de su cargo por el monto total de seiscientos cinco mil novecientos cuarenta y cuatro dólares y ochenta y dos centavos ($605.944.82). 244) Por otro lado, por haber logrado el contacto inicial entre él y los empleados de la empresa [Nombre01 091], el encartado [Nombre01 018] decidió voluntariamente entregarle dinero a [Nombre01 063], como se explica de seguido. 245) En fecha 11 de noviembre de 2003, [Nombre02 018] le pidió a [Nombre01 158] que con el dinero depositado por la empresa [Nombre 058]. a la cuenta de su representada [Nombre 215]., adquiriera un cheque de gerencia a favor de [Nombre02 063] por la suma de cincuenta y seis mil setecientos cuarenta y seis dólares ($56.746). [Nombre01 158] emitió el cheque Nº 008 por esa suma y le encargó el trámite a [Nombre02 225], quien compró en el banco BAC San José el cheque de gerencia Nº 75741-8 a favor de [Nombre 063], por cincuenta y seis mil setecientos cuarenta y seis dólares ($56.746). 246) Luego de recibir el título valor de [Nombre01 158], [Nombre 018] se lo entregó a [Nombre 063], quien el día 19 de noviembre de 2003, lo depositó en la cuenta Nº [Valor 051] del Puesto de Bolsa de Inversiones Sama, para invertirlo en el fondo de crecimiento público en dólares con la adquisición de 52.700.21 participaciones. 247) En fecha 04 de febrero de 2004, el encartado [Nombre01 018] le pidió nuevamente a [Nombre01 158], que de los fondos provenientes de la empresa [Nombre01 058]., depositados en la cuenta de [Nombre 215]. en el BAC International Bank de Panamá, adquiriera un cheque de gerencia por veintiún mil dólares ($21.000) a favor de [Nombre02 063] , por lo que [Nombre01 158] emitió el cheque Nº 010 con el cual [Nombre01 225], a quien se le delegó el trámite, compró el cheque de gerencia Nº 75992-0 al BAC San José por la suma indicada. Luego de recibirlo de [Nombre02 158], [Nombre02 018] entrega el cheque dicho a [Nombre01 063], quien el día 10 de febrero de 2004, lo hizo efectivo. 248) Finalmente, [Nombre01 018] le solicitó a [Nombre01 028] que del dinero proveniente de [Nombre01 091], le transfiriera a [Nombre02 063] la suma de cincuenta mil dólares. Así, el 02 de abril de 2003, [Nombre01 028] aplicó un débito de la cuenta Nº [Valor 012] y adquirió el certificado Nº 224-002-006218-3 del Banco Cuscatlán de Costa Rica por la suma de cincuenta mil dólares ($50.000). El día 5 de mayo de 2003 fecha de vencimiento del título, [Nombre01 028] se lo entregó a [Nombre 063], quien lo liquidó junto con los intereses acumulados por $121.45 y la totalidad del dinero lo depositó en la cuenta Nº [Valor 048] de Sama Fondos de Inversión S.A. para ser acreditado a su cuenta Nº [Valor 051] con dicha institución. [Nombre01 063] ajustó con otro dinero cuyo origen se desconoce y adquirió participaciones en el fondo de crecimiento público en dólares por la suma de setenta mil ciento treinta y cuatro dólares con sesenta centavos ($70.134.60) el día 7 de mayo del año 2003. 249) Vía [Nombre 215] , [Nombre01 063] recibió del dinero admitido por [Nombre 018] , la suma de setenta y siete mil setecientos cuarenta y seis dólares ($77.746), y por medio de [Nombre 058] ., ciento cuarenta y cinco mil doscientos cincuenta y nueve dólares con veintiún centavos ($145.259.21), para un total de doscientos veintitrés mil cinco dólares con veintiún centavos ($223.005.21).” (F. 14.494 y 14.500 frente, tomo XXX, el destacado no es del original). En cuanto a los hechos demostrados, se tiene que: “201) El encartado [Nombre01 018] ostentó la condición de funcionario público como resultado de elección popular en la que se le designó como Diputado de la Asamblea Legislativa por el Partido Unidad Social Cristiana, para los períodos constitucionales del 1º de mayo de 1990 al 30 de abril de 1994 y del 1º de mayo de 1998 al 30 de abril de 2002. 202) En el ejercicio de su condición diputadil, el encartado [Nombre01 018] integró la comisión mixta legislativa que se constituyó a raíz del movimiento social que se levantó en contra de los proyectos legislativos conocidos como "combo del I.C.E" y el 4 de abril de 2000 fue designado presidente de la Comisión Mixta Legislativa, tomando un protagonismo directo en la actividad política relacionada a la materia de las telecomunicaciones. 203) [Nombre01 063] se desempeñó también como funcionario público desde el 1º de agosto de 1974 al 27 de setiembre de 2004, al ocupar una plaza fija en el I.C.E., institución donde laboró en diversos cargos y en el último de éstos como Subjefe de Dirección en diferentes unidades desde el 1º de diciembre de 1996 al 27 de setiembre de 2004, entre ellos la subgerencia ICETEL adscrita a la UEN de Servicios Internacionales y la UEN de Desarrollo Ejecución de Proyectos. Durante ese lapso el señor [Nombre01 063] fue compañero de labores del señor [Nombre01 128], quien posteriormente dejó de trabajar en el I.C.E. e inició labores en la empresa [Nombre 091] Costa Rica, filial local de la corporación [Nombre01 091]. 204) Habiéndose informado previamente que [Nombre01 063] conocía al Jefe de Fracción del PUSC, el acusado [Nombre01 018] , el señor [Nombre02 128] (en ese momento Director Comercial de cuentas de clientes en [Nombre01 091]) durante el año 1999 realizó una llamada telefónica a [Nombre01 063] para solicitarle que propiciara un encuentro entre ambos. En ese momento [Nombre01 091] procuraba obtener comunicación con actores importantes del quehacer político nacional, entre ellos diputados jefes de fracción de la Asamblea Legislativa, con el fin de exponer la denuncia de [Nombre01 091] en contra del contrato de compra directa “ICE- ERICSSON" para la adquisición de 83.000 líneas celulares, al considerar que el I.C.E. evitaba la competitividad entre proveedores y las mejoras tecnológicas en la telefonía móvil. 205) Producto de la intervención de [Nombre01 063], se originó una primera reunión entre el encartado [Nombre01 018] y [Nombre01 128] a finales del año 1999, en la que este último le presentó la denuncia pública en contra del proyecto antes dicho. 206) Posteriormente, en el año 2000 [Nombre01 091] continuó con otra campaña pública de denuncia contra la reticencia del I.C.E. a permitir que el desarrollo de la telefonía celular se diese por medio de la tecnología GSM y con el propósito de que esa empresa pudiera ingresar a ese campo mediante licitación pública. Por ello, siguiendo la misma dinámica anterior, a partir de los meses de marzo y abril de ese año, [Nombre01 128] propició por medio de [Nombre01 063] una nueva comunicación con el acusado [Nombre01 018], en consideración a su calidad de diputado jefe de fracción del PUSC, que era la bancada mayoritaria durante ese período legislativo y su protagonismo en el área de discusión del tema de las telecomunicaciones. 207)En fecha no determinada sino aproximadamente durante los primeros meses del año 2000, ante la iniciativa de personeros de la empresa [Nombre01 091], el encartado [Nombre01 018] en ocasión de su cargo, se reunió con [Nombre01 128] en diversas ocasiones participando ocasionalmente [Nombre02 063], en las que el empleado de [Nombre01 091] planteó la conveniencia de la apertura por parte del Nombre04.Nombre72 a las licitaciones abiertas en lo concerniente a la adquisición de telefonía celular y las bondades de la tecnología GSM. Le comentó sobre la denuncia presentada por [Nombre01 091] ante la Contraloría General de la República, Nombre02 como la necesidad de que la misma recibiera real atención; presentación que se hizo con la finalidad de procurar mecanismos para factibilizar su éxito en los distintos foros políticos y administrativos en que se discutiera el tema. Dichas reuniones se llevaron a cabo, por ejemplo, en la Asamblea Legislativa, en cafés cercanos a ésta o en el Hotel San José Palacio. 208) Sin poderse esablecer la fecha exacta, pero entre los meses de febrero y julio del año 2000, el imputado [Nombre01 018] , luego de varios encuentros con [Nombre01 128], solicitó la realización de una reunión con sus superiores, el encartado [Nombre01 041] y el sentenciado [Nombre01 078]. 209) Fue Nombre02 como el 17 de agosto de 2000, el imputado [Nombre01 018] y [Nombre02 063] mantuvieron una reunión con el encartado [Nombre01 041] en el Café [...], en las cuales se continuó tratando el tema de la falta de apertura por parte del Nombre04.Nombre72 a las licitaciones públicas en materia de la telefonía celular. En uno de estos encuentros el imputado [Nombre01 041] y el sentenciado [Nombre01 078], le ofrecieron al imputado [Nombre01 018] en consideración a su oficio, la entrega de una dádiva consistente en dinero si se lograba la apertura a las licitaciones públicas en el I.C.E, equivalente a un 0.5 % del contrato que se obtuviera. 210) En virtud de lo anterior , el acusado [Nombre01 018] muestra su anuencia al ofrecimiento de la dádiva y decidió compartirla, con [Nombre01 063], por haber logrado el contacto con los corruptores. 211) Tal como había sido acordado, una vez que se logró la adjudicación de la licitación pública abreviada a favor de [Nombre01 060] , el acusado [Nombre01 041] de común acuerdo con el sentenciado [Nombre01 078] iniciaron la entrega en forma fraccionada de la dádiva que había sido prometida al coimputado [Nombre01 018] en consideración a su oficio.212) Para ello, utilizaron la modalidad de pago empleada con otros de los imputados funcionarios del I.C.E, canalizando los fondos a través del acusado [Nombre01 028] y su empresa [Nombre 058]. 213) De tal forma, en fecha 10 de diciembre de 2001 el acusado [Nombre02 028], conforme al plan que previamente había trazado con el sentenciado [Nombre01 078] y el acusado [Nombre01 041], del dinero previamente transferido por la empresa [Nombre 060], giró el cheque Nº 301 por setecientos cincuenta y cinco mil ciento veintitrés dólares ($755.123) contra la cuenta de [Nombre 058] . en el Cuscatlán International Bank y en fecha 10 de diciembre de 2001, adquirió con esa suma, una serie de certificados de inversión al portador con el Banco Cuscatlán de Costa Rica, entre los que se encontraban los Nº Identificacion18 Nº Identificacion19 y Nº Identificacion20 cada uno por la suma de diez mil dólares ($10.000), y giró instrucciones al ente financiero para que los títulos fueran depositados en la cuenta Nº [Valor 060] a Nombre01 de BSJ International Bank con el Banco San José. 214) En fecha 15 de enero de 2002, el acusado [Nombre01 018], mientras permanecía en el ejercicio del cargo de diputado, admitió la dádiva que le fue presentada en consideración a su oficio al recibir en el BAC San José los tres certificados anteriores, que sumaron treinta mil dólares ($30.000). En esa misma fecha inició el disfrute del dinero ilícito recibido; para ello giró instrucción al ente bancario para que a estos fondos se les sumaran ocho mil ciento sesenta y cinco dólares con veintitrés centavos ($8.165.23) de su cuenta Nº [Valor 047] con el BAC San José y $161.725 correspondientes al principal y cupón del certificado de inversión Nº 720016762, con el fin de alcanzar el total de doscientos mil dólares ($200.000) en el BAC International Bank, monto con el que adquirió a su nombre, el certificado Nº 720096897 de la misma entidad bancaria en Bahamas. 215) Asimismo, con los fondos señalados en el hecho trasanterior, el encartado [Nombre01 028] adquirió los certificados de inversión Nº 224-002-0037278 y Nº 224-002-0037286 del Banco Cuscatlán de Costa Rica por la suma de diez mil dólares ($10.000.00) cada uno, emitidos al portador y con vencimiento al 11 de enero de 2002, los cuales hizo llegar a [Nombre02 063]. Una vez en su poder, [Nombre01 063] endosó los certificados con los respectivos cupones de interés y los depositó en la cuenta Nº [Valor 048] de Inversiones Sama S.A., con el Banco Nacional, por un total de veinte mil setenta y tres dólares con dieciocho centavos ($20.073.18); luego solicitó un cheque por tres mil dólares ($3.000) y los restantes diecisiete mil setenta y tres dólares con dieciocho centavos ($17.073.18) los invirtió en la compra de participaciones en Sama Fondo de Ingreso Mensual Dólares. 216) El 10 de enero de 2002, el imputado [Nombre01 041] continuó con la entrega de la dádiva ilícita a favor del acusado [Nombre01 018] , siguiendo con lo convenido sobre la distribución de los fondos con el encartado [Nombre02 028]. De esta forma aplicó un débito a la cuenta de [Nombre 058]. Nº [Valor 012] con el Cuscatlán International Bank por sesenta mil dólares ($60.000) y adquirió seis certificados, entre ellos Nº 224-002-003852-2, Nº 224-002-003853-3, Nº 224-002-003854-1, Nº 224-002-003855-0 del Banco Cuscatlán de Costa Rica por diez mil dólares ($10.000) cada uno emitidos al portador. Estos títulos le fueron entregados por [Nombre01 028] a [Nombre 018], quien los admitió el 11 de febrero de ese mismo año, fecha de su vencimiento, de inmediato los endosó y depositó en su cuenta Nº [Valor 047] con el BAC San José, junto con los cuatro cupones de intereses por un total de $129.16. 217) Asimismo, los otros dos certificados Nº 224-002-0038517, 224-002-0038568, con fecha de vencimiento al 11 de febrero de 2002 y emitidos al portador, entre los días 9 de enero y 11 de febrero de 2002, fueron entregados a [Nombre02 063] , quien a su vencimiento entre los días 11 y 13 de febrero de 2002 los endosó y depositó en su cuenta del Scotiabank, S.A. Nº [Valor 061] , con sus respectivos cupones de intereses que ascendían a $64.58. 218) Sin precisar fecha pero al finalizar el año 2002, luego de que el acusado [Nombre01 018] admitió la dádiva que le fue entregada en consideración de su oficio de diputado, sin habérsele hecho la entrega total de la misma y sin que hubiese un acuerdo previo de colaboración, fragua un procedimiento para evitar que lo involucren directamente con el delito y desviar los controles del sistema bancario nacional. Para ello, le solicitó al acusado [Nombre01 063] un número de cuenta para recibir parcialmente la dádiva y [Nombre01 063] le suministró el número de cuenta bancaria Nº [Valor 059] con el Banco Internacional de Costa Rica (BICSA) en la Agencia en Miami, dato que [Nombre01 018] transmitió a [Nombre 041], quien a su vez lo refirió al imputado [Nombre 028]. 219) De tal modo, en fecha 16 de enero de 2003, el acusado [Nombre02 028], mediante su sociedad [Nombre 058]. ordenó al Cuscatlán International Bank & Trust, Co. Ltd., que se transfirieran cincuenta y cinco mil dólares ($55.000) a la cuenta Nº [Valor 059] de [Nombre 063], pero destinados a [Nombre01 018], mediante aplicación de un decremento a la inversión a la vista Nº Identificacion21 por la citada suma. 220) Con la acreditación de los cincuenta y cinco mil dólares ($55.000) a su favor, el 30 de enero de 2003, a [Nombre02 063] adquirió en BICSA los certificados al portador Nºs 21792, 21793, 21794, 21795, todos por un monto de ocho mil novecientos veintiocho dólares con setenta y cinco centavos ($8.928.75), más los cupones de intereses por $74.44 para un total de treinta y cinco mil setecientos ochenta y nueve dólares con cuarenta y cuatro centavos ($35.789.44) y con fecha de vencimiento el día 28 de febrero del año 2003. Posteriormente, a [Nombre01 063] se los entregó, previo endoso, al acusado [Nombre01 018]. 221) Una vez admitida esta parte de la dádiva con la intermediación de [Nombre01 063], el coencartado [Nombre02 018], el día 03 de marzo de 2003, liquidó los certificados antes citados y depositó la suma de diecisiete mil ochocientos ochenta y nueve dólares con cuarenta y cuatro centavos ($17.889.44) en su cuenta Nº [Valor 047] del BAC San José; canceló ocho mil dólares ($8.000) en el pago de su tarjeta de crédito [Valor 050] del BAC San José y se dejó en dinero en efectivo la suma de nueve mil novecientos dólares ($9.900). 222) Para completar la entrega al encartado [Nombre02 018] de los cincuenta y cinco mil dólares $55.000 recibidos en su cuenta, [Nombre02 063] , en fecha 20 de octubre de 2003, compró el cheque de gerencia Nº 160258 emitido a su Nombre01 por BICSA por la suma de diecinueve mil setecientos noventa y cinco dólares ($19.795), que endosó y depositó en la cuenta de [Nombre01 018] Nº [Valor 047] con el BAC San José, el 28 de octubre de ese mismo año. 223) De esta forma, con la intervención de [Nombre01 063] el endilgado [Nombre02 018] obtuvo la suma de cincuenta y cinco mil quinientos ochenta y cuatro dólares y cuarenta y cuatro centavos ($55.584.44), como parte del enriquecimiento ilícito por haber admitido la dádiva entregada por los empleados de [Nombre01 091]. 224) En fecha no precisa pero aproximadamente a inicios del año 2003, el encartado [Nombre01 028], continuó con la entrega del resto de la dádiva proveniente de [Nombre01 060] vía [Nombre 058]., a favor del imputado [Nombre02 018]. Este último, con la finalidad de evadir los controles bancarios y disimular los ingresos que le incrementaban su patrimonio sin justificación válida, buscó una cuenta bancaria en el extranjero para recibir las sumas; de tal modo, [Nombre01 018] encubriendo el origen ilícito de los fondos y el motivo de su recepción, le pidió a [Nombre01 158] amigo de su confianza, que le prestara una cuenta bancaria fuera de Costa Rica, aduciendo que la necesitaba porque le iban a ingresar dineros de la venta de una propiedad y que deseaba mantenerlos en una cuenta fuera del país. Así, [Nombre01 158] le facilitó la cuenta bancaria inscrita a Nombre01 de la compañía de su propiedad [Nombre 215] . Nº [Valor 041] del BAC Panamá. 225) El día 2 de abril de 2003, el imputado [Nombre02 028] , mediante nota, solicitó la aplicación de un débito a la cuenta Nº [Valor 012] de [Nombre 058]. en el Banco Cuscatlán, por la suma de dos millones cuatrocientos cincuenta mil dólares ($2.450.000) y la emisión de 18 certificados de inversión entre los que se contemplaba el Nº Identificacion22 por cincuenta mil dólares ($50.000) con plazo a 33 días. Este título se le entregó a [Nombre01 018] quien Nombre11 con la finalidad de evadir ser descubierto en su delincuencia, el 05 de mayo de 2003 se lo dio a [Nombre01 158] para que lo depositara en la cuenta de [Nombre02 215]. A su vez, [Nombre01 158] le encargó a [Nombre01 225], empleado de su confianza, que realizara el trámite correspondiente, de tal modo [Nombre01 225] liquidó ese certificado junto con los cupones de intereses por $116.45 en el Banco Cuscatlán, y en la misma institución bancaria adquirió el cheque de gerencia Nº 16987-7 por cincuenta mil ciento dieciséis dólares con cuarenta y cinco centavos ($50.116.45) a favor de la empresa de origen panameño [Nombre01 215] ., el cual fue depositado en la cuenta Nº [Valor 041] del BAC International Bank Panamá el día 6 de mayo; logrando de esa manera [Nombre01 018] aumentar en forma ilícita su patrimonio con el dinero proveniente de [Nombre01 091], vía [Nombre 058]. 226) El imputado [Nombre01 018] le hizo saber al coencartado [Nombre02 028] el número de cuenta a Nombre01 de [Nombre01 215] en donde hacer llegar las entregas posteriores. Nombre02 en fecha 17 de julio de 2003, el acusado [Nombre01 028], como apoderado de [Nombre01 058]., continuó con la entrega de la dádiva ilícita a favor de [Nombre01 018] ; para ello nuevamente giró instrucciones a la entidad bancaria para que se aplicara un débito a la cuenta de su compañía y fuera transferida a la orden de [Nombre01 215] . a la cuenta Nº [Valor 041] en el BAC Panamá, la suma de cincuenta y cinco mil dólares ($55.000). 227) Con ciento cinco mil ciento dieciséis dólares con cuarenta y cinco centavos ($105.116.45) a su disposición en la cuenta de [Nombre01 215] ., sin precisar fecha, pero poco antes del día 11 de agosto de 2003, el acusado [Nombre01 018] le pidió a [Nombre01 158] ayuda en la compra de un vehículo para su hija [Nombre02 243] . [Nombre02 158] se puso en contacto con la encargada de ventas de la Agencia Purdy Motor, con quien coordinó la compra de un vehículo marca Toyota modelo RAV 4 y le dio el número telefónico del acusado [Nombre01 018] para que pactaran la compra. 228) A efecto de cancelar el vehículo, el acusado [Nombre01 018] le pidió a [Nombre01 158] un cheque por el valor del mismo. Nombre02 [Nombre01 158] giró el cheque nº 003 por la suma de veintitrés mil setecientos dólares ($23.700) de la cuenta corriente Nº [Valor 041] de su representada [Nombre 215] del BAC International Bank Panamá a favor del Banco San José, y le encargó a [Nombre01 225] que con el mismo adquiriera un cheque de gerencia a Nombre01 de Purdy Motor por la suma indicada. El 11 de agosto de 2003, [Nombre01 018] formalizó el traspaso del vehículo marca RAV 4, Toyota, color rojo, cuatro puertas, placa [Valor 052] , a Nombre01 de [Nombre01 243] a quien se lo obsequió. 229) Continuando con la disposición del dinero proveniente de [Nombre01 060], el encartado [Nombre 018], utilizó los restantes ochenta y un mil cuatrocientos once dólares con cuarenta y tres centavos ($81.411.43) disponibles en la cuenta de [Nombre01 215] para unirlos a dinero de otra procedencia y adquirir una vivienda en el [...]. 230) El 27 de octubre de 2003, el acusado [Nombre01 028], ordenó que de la cuenta de [Nombre 058], con el Banco Cuscatlán, se aplicara un débito por un millón setecientos cincuenta y ocho mil ochocientos setenta dólares ($1.758.870) y que se hiciera una transferencia a la cuenta Nº [Valor 041] de [Nombre 215]., con el BAC International Bank Panamá, por la suma de doscientos setenta y cinco mil dólares ($275.000), a fin de que este dinero fuera recibido por el encartado [Nombre02 018], depósito que se hizo efectivo el día 29 de octubre de 2003. 240) Finalmente, en fecha 07 de enero de 2004, el imputado [Nombre 028] como apoderado de [Nombre 058]. giró instrucciones al Departamento de Banca Privada del Banco Cuscatlán para que se aplicara un débito por doscientos mil dólares ($200.000), y de esa suma enviar una transferencia por cien mil dólares ($100.000) a la cuenta de [Nombre 215]., Nº [Valor 041] con el BAC International Bank Panamá. 241) Según lo expuesto, el imputado [Nombre01 028] , mediante su empresa [Nombre 058]., transfirió un total de cuatrocientos ochenta mil ciento dieciséis dólares con cuarenta y cinco centavos ($480.116.45) de su cuenta Nº [Valor 012] con el Cuscatlán International Bank a favor de [Nombre02 215]., a la cuenta Nº [Valor 041] con el BAC International Bank en Panamá, para que fuera entregado al acusado [Nombre 018], ingreso efectivo que se redujo en $21.00 por aplicación de las comisiones bancarias, sea se acreditaron cuatrocientos ochenta mil noventa y cinco dólares con cuarenta y cinco centavos ($480.095.45); y en certificados de inversión del Banco Cuscatlán recibió setenta mil doscientos treinta y ocho dólares con noventa y tres centavos ($70.238.93); es decir, por esta vía [Nombre02 018] admitió quinientos cincuenta mil trescientos sesenta dólares con treinta y ocho centavos ($550.360.38). Por otra parte, por medio de [Nombre01 063] admitió además la suma de cincuenta y cinco mil quinientos ochenta y cuatro dólares con cuarenta y cuatro centavos ($55.584.44), completando la recepción de la dádiva en ocasión de su cargo por el monto total de seiscientos cinco mil novecientos cuarenta y cuatro dólares y ochenta y dos centavos ($605.944.82). 242) Por otro lado, por haber logrado el contacto inicial entre él y los empleados de la empresa [Nombre01 091], el encartado [Nombre01 018] decidió voluntariamente entregarle dinero a [Nombre01 063], como se explica de seguido. 243) En fecha 11 de noviembre de 2003, [Nombre02 018] le pidió a [Nombre01 158] que con el dinero depositado por la empresa [Nombre 058]. a la cuenta de su representada [Nombre 215]., adquiriera un cheque de gerencia a favor de [Nombre02 063] por la suma de cincuenta y seis mil setecientos cuarenta y seis dólares ($56.746). [Nombre01 158] emitió el cheque Nº 008 por esa suma y le encargó el trámite a [Nombre02 225], quien compró en el banco BAC San José el cheque de gerencia Nº 75741-8 a favor de [Nombre 063], por cincuenta y seis mil setecientos cuarenta y seis dólares ($56.746). 244) Luego de recibir el título valor de [Nombre01 158], [Nombre 018] se lo entregó a [Nombre 063], quien el día 19 de noviembre de 2003, lo depositó en la cuenta Nº [Valor 051] del Puesto de Bolsa de Inversiones Sama, para invertirlo en el fondo de crecimiento público en dólares con la adquisición de 52.700.21 participaciones. 245) En fecha 04 de febrero de 2004, el encartado [Nombre01 018] le pidió nuevamente a [Nombre01 158], que de los fondos provenientes de la empresa [Nombre01 058]., depositados en la cuenta de [Nombre 215]. en el BAC International Bank de Panamá, adquiriera un cheque de gerencia por veintiún mil dólares ($21.000) a favor de [Nombre02 063] , por lo que [Nombre01 158] emitió el cheque Nº 010 con el cual [Nombre01 225], a quien se le delegó el trámite, compró el cheque de gerencia Nº 75992-0 al BAC San José por la suma indicada. Luego de recibirlo de [Nombre02 158], [Nombre02 018] entrega el cheque dicho a [Nombre01 063], quien el día 10 de febrero de 2004, lo hizo efectivo. 246) Finalmente, [Nombre01 018] le solicitó a [Nombre01 028] que del dinero proveniente de [Nombre01 091], le transfiriera a [Nombre02 063] la suma de cincuenta mil dólares. Así, el 02 de abril de 2003, [Nombre01 028] aplicó un débito de la cuenta Nº [Valor 012] y adquirió el certificado Nº 224-002-006218-3 del Banco Cuscatlán de Costa Rica por la suma de cincuenta mil dólares ($50.000). El día 5 de mayo de 2003 fecha de vencimiento del título, [Nombre01 028] se lo entregó a [Nombre 063], quien lo liquidó junto con los intereses acumulados por $121.45 y la totalidad del dinero lo depositó en la cuenta Nº [Valor 048] de Sama Fondos de Inversión S.A. para ser acreditado a su cuenta Nº [Valor 051] con dicha institución. [Nombre01 063] ajustó con otro dinero cuyo origen se desconoce y adquirió participaciones en el fondo de crecimiento público en dólares por la suma de setenta mil ciento treinta y cuatro dólares con sesenta centavos ($70.134.60) el día 7 de mayo del año 2003. 247) Vía [Nombre 215] , [Nombre 063] recibió del dinero admitido por [Nombre 018] , la suma de setenta y siete mil setecientos cuarenta y seis dólares ($77.746), y por medio de [Nombre 058] ., ciento cuarenta y cinco mil doscientos cincuenta y nueve dólares con veintiún centavos ($145.259.21), para un total de doscientos veintitrés mil cinco dólares con veintiún centavos ($223.005.21).” (F. 15.477 a f. 15.487 frente, el destacado no es del original). El tribunal de juicio, al analizar la acusación, afirmó que en esta no se describía un cohecho impropio, toda vez que si bien se hacía referencia al ofrecimiento de una dádiva y a la aceptación de dicho ofrecimiento por parte de [Nombre 018], no se mencionaba otro de los componentes de aquel tipo penal, a saber, el acto propio de sus funciones que se esperaba de [Nombre 018]. Indicó el a quo: “Por ello, considera este tribunal que independientemente de si la conducta descrita por la Fiscalía en conclusiones se comprobó o no (promesa remuneratoria por atender al público), lo cierto es que la acusación no contiene tal descripción y en aplicación del principio de correlación entre acusación y sentencia ni siquiera podría valorarse esa posibilidad. El Ministerio Público refiere que [Nombre01 018] tenía el deber de recibir al público sin cobrarle pues el control político le corresponde a la Asamblea Legislativa; sin embargo, este no es un tema probatorio, sino propio de la tutela del derecho de defensa porque no se indica circunstancia en la acusación, ni se menciona que hubiera una promesa o que la dádiva le fuera entregada por realizar un acto como el descrito (que estuviere dentro de sus funciones). Y aunque lógicamente si no cabe el tipo penal básico tampoco el agravante, de todas formas la contratación de las 400.000 líneas celulares no interesa a la administración donde fungía [Nombre01 018] (sea la Asamblea Legislativa). Por ello, más bien, se estima que la descripción acusatoria corresponde a la del delito de Enriquecimiento ilícito, pero antes de valorar las razones para determinar ese ajuste típico, se aborda el tema de la supuesta derogatoria tácita del tipo penal ...” (F. 16.055 y 16.056 frente). Tal conclusión, que no fue objeto de impugnación por parte del Ministerio Público, es acertada, ya que en efecto, en la acusación no se contemplaba cuál era el acto propio de sus funciones que los corruptores esperaban de [Nombre01 018], elemento típico que es de extrema importancia, al permitir diferenciar el cohecho impropio de otras figuras, v.g., del cohecho propio, o de algunas incluso más complejas que pueden llegar a ser su complemento, pues se pretenden finalidades adicionales (así sucede, v.g., con el delito de corrupción agravada por cohecho, sea propio o impropio). Por tanto, aunque ciertamente, en la acusación se afirmó que [Nombre01 018] aceptó la promesa de retribución, e incluso aunque el tribunal tuvo por demostrado el contenido de la misma, lo cierto es que dicha cuestión es irrelevante, ya que como bien se reconoce en la sentencia recurrida, es imposible, o al menos lo es sin lesionar el principio de correlación entre acusación y sentencia, tener por acreditado que [Nombre01 018] aceptó esa promesa de retribución a cambio de “recibir público”, como lo indicó el Ministerio Público, para solventar el error contenido en su acusación. Aclarado esto, corresponde recordar que el tipo penal del enriquecimiento ilícito aplicable en este caso, contemplaba la admisión de dádivas que fueren presentadas u ofrecidas al funcionario público en consideración a su oficio, mientras permanezca en el ejercicio del cargo. Tal y como se explicó en el considerando sexto, al cual debe estarse el recurrente, es un tipo penal que prevé dos supuestos distintos, a saber, i) la admisión de dádivas presentadas y ii) la admisión de dádivas ofrecidas. En la primera hipótesis, la presentación y la recepción de la ventaja y en la segunda, el ofrecimiento y la admisión de esta, deben tener lugar mientras el funcionario público permanece en el cargo en consideración al cual se presenta u ofrece la retribución. Se trata de una diferencia que en asuntos como el presente no es baladí, ya que en el segundo supuesto el delito se configura al margen de que el sujeto activo reciba la retribución económica, con lo cual esta recepción constituye un acto posterior impune, que puede tener lugar luego de que el funcionario público ha dejado de desempeñarse en el cargo. Dicho esto, es importante subrayar que el tribunal de mérito tuvo por demostrado que a [Nombre01 018] se le ofreció una dádiva y que este la aceptó (f. 16.064 frente, último párrafo, tomo XXXIII). Es decir, al menos en principio, se configuraría el segundo supuesto de los antes planteados. Frente a esto, el licenciado Villalobos Umaña reclama que la citada oferta no se puede tener por demostrada. Para esta cámara, lleva razón. Veamos. Para determinar la responsabilidad de [Nombre01 018] en cuanto al enriquecimiento ilícito, el tribunal ponderó una serie de circunstancias que se describen de folio 15.997 frente a 16.054 frente del tomo XXXIII y que se pueden esquematizar como a continuación se dirá: i) [Nombre01 018] fue diputado de la Asamblea Legislativa del 1 de mayo de 1998 al 30 de abril de 2002 y luego, del 8 de mayo de 2002 al 21 de abril de 2004 fue presidente ejecutivo de la Caja Costarricense del Seguro Social; ii) como diputado, fue parte de la comisión especial mixta que se integró después de las protestas por el denominado combo del ICE. La pretensión era que la citada comisión dictaminara y en tanto no lo hiciera, no se diera trámite a ningún proyecto de ley en relación con el ICE. Lo anterior es de interés, dice el tribunal, porque en la gerencia de [Nombre01 091] se incautó un documento denominado “Nueva Ley de Telecomunicaciones (Combo ICE), impacto sobre [Nombre01 091] y acciones a seguir”, que revela la importancia que tenía para la empresa toda acción que pudiese modificar o afectar las expectativas comerciales o contratos con la referida institución (f. 15. 999 frente); iii) [Nombre01 063] laboró en el ICE desde el 1 de agosto de 1974 hasta el 27 de septiembre de 2004 y fue el enlace entre [Nombre01 091] y [Nombre01 018]. Los personeros de [Nombre01 091] se acercaron a este último, gracias a la mediación de [Nombre01 063], para exponerle sus preocupaciones acerca de las contrataciones directas que efectuaba el ICE y que según ellos, les excluía del mercado. De esto da cuenta la prueba (informe pericial Nº 428-DEF-443-05/05, prueba Nº 630, PC06, archivo “Libro blanco” y la declaración de [Nombre01 128]); iv) se descartó con base en la prueba testimonial evacuada, que [Nombre01 018] hubiese sido consultor de la empresa [Nombre 091], como también que hubiese tenido alguna relación comercial o laboral con [Nombre01 058]. que justificase la recepción de los dineros que le fueron entregados. Incluso, [Nombre01 158] declaró que este imputado le manifestó haber ganado un dinero con [Nombre01 091] de forma fácil, pues no había hecho nada y, según la testigo [Nombre01 116] , [Nombre 041] le dijo espontáneamente que él había pagado sobornos a funcionarios públicos, entre ellos [Nombre01 018]. Otro tanto hay con [Nombre01 142], quien señaló que [Nombre01 041] reconoció haber pagado dádivas a funcionarios públicos en los medios de comunicación. Finalmente, la empresa [Nombre 091] tenía dentro de sus políticas de contratación, la prohibición de contratar como asesores a funcionarios públicos. v) Con base en la declaración de [Nombre 128], se estableció que [Nombre 018] fue informado del tema de la telefonía móvil y del interés de [Nombre01 091] en que se eliminase la contratación directa sin licitación. [Nombre01 091] había hecho dos campañas públicas y de denuncia, una para oponerse a la contratación de las líneas a Ericsson en 1999 y otra en el año 2000, a propósito de la tecnología GSM, siendo que desde 1999 existía contacto con [Nombre01 018]. Hubo varias reuniones con el entonces diputado y en una oportunidad, [Nombre01 018] le pidió a [Nombre01 128] hablar con sus superiores, reunión que según el testigo, sí tuvo lugar. vi) El tribunal consideró que de lo dicho por [Nombre01 128], se extrae que a [Nombre01 018] se le contactó para conversar sobre la eliminación de las contrataciones y la apertura de la licitación, lo cual lleva al tema de las 400.000 líneas celulares. Esto confirma la versión de [Nombre02 064], en el sentido de que el ofrecimiento de la dádiva tenía que ver con el tema de las centrales móviles y con la tecnología GSM y en ese tanto, hay indicios que permiten vislumbrar que a [Nombre01 018] también se le hizo una promesa remuneratoria en circunstancias modales y temporales semejantes a la hecha a [Nombre01 064], solo que mientras a este último lo llamó [Nombre01 078], fue [Nombre02 018] quien pidió hablar con los superiores de [Nombre01 128]. Además, los pagos también le fueron hechos por las mismas vías que a otros imputados. vii) Hay documentación que da cuenta de que el día 17 de agosto de 2000, en el café [...], [Nombre01 041] se reunió con [Nombre 018] y [Nombre 063]; viii) [Nombre01 144], mensajero de la empresa [Nombre01 091], dijo haber llevado sobres remitidos por [Nombre01 041] a los acusados [Nombre01 022], [Nombre 001], [Nombre 018] y [Nombre01 028], en sus domicilios y oficinas. La secretaria de [Nombre01 041], dijo que se enviaban sobres al ICE y a los imputados y que ella conocía su contenido, sin embargo, “…esto no excluye que [Nombre01 144] llevara sobres que no fueran los que ella conoció; sobres que además tenían características diferentes a los descritos como conocidos por su persona.” (F. 16.011 frente). ix) Nombre02 como en el año 2000 se inició la campaña pública de [Nombre 091] en pro de la licitación pública y la migración a la tecnología GSM, también entre julio de 2000 y diciembre de ese año personeros de [Nombre01 091] se reunieron con diputados y otros personajes del ámbito político. Es entonces cuando se dieron los encuentros con [Nombre01 018], [Nombre01 001] y [Nombre01 064], todos los que al final recibieron dineros procedentes de [Nombre01 060]. x) Finalmente, el a quo valoró abundante prueba documental, descrita de folio 16.014 frente a 16.054 frente, para demostrar que los fondos recibidos por [Nombre01 018] procedían de [Nombre01 060]. Analizados estos indicios y considerando, claro está, la supresión hipotética que corresponde realizar del testimonio de [Nombre01 064], los suscritos concluyen que no es posible tener por demostrado que el 17 de agosto de 2000, en el Café [...], [Nombre 041] le cursó a [Nombre01 018] una promesa u ofrecimiento de retribución económica. Esta cámara no duda acerca de que la citada reunión tuvo lugar, sin embargo, esto no basta para acreditar el ofrecimiento, sobre todo considerando que los encuentros no eran extraños y que el mismo [Nombre01 128] reconoció que parte de la estrategia de [Nombre01 091] fue reunirse con personas de distintos sectores, incluidos diputados. Del mismo modo, el hecho de que [Nombre01 018] pidiese a [Nombre01 128] conversar con su superior ([Nombre01 041]), es un indicio anfibológico, que incluso nos permite pensar en otras hipótesis, por ejemplo, que fuese este funcionario público quien abusando de su calidad de diputado, obligó o indujo a otro a dar o prometer el beneficio patrimonial que luego recibió. En cuanto a los sobres que mencionó el a quo, cabe hacer la misma reflexión que se hizo en considerandos anteriores. Su contenido es una incógnita y, en ese tanto, es una especulación del tribunal el sostener que contenían documentación relacionada con el delito. Nombre11 en esta línea de ideas, nadie duda acerca de que [Nombre01 018] recibió dinero de [Nombre01 060] de la misma manera que lo hicieron otros imputados en esta causa, sin embargo, extraer de esto con un grado de certeza y no de probabilidad que el día 17 mencionado se gestó una promesa u ofrecimiento de retribución económica es imposible, máxime si se considera que la prueba medular para tener por demostrada la citada promesa y sus alcances fue la declaración del imputado colaborador [Nombre01 064] y esta se consideró prueba ilícita. Sin este relato, al igual que sucede con los demás imputados, no se pueden descartar otras posibilidades, como ya se indicó, que los dineros fuesen requeridos por los mismos funcionarios públicos entre los cuales está [Nombre02 018], que se tratase de retribuciones económicas recibidas sin promesa anterior, por un acto cumplido u omitido en la calidad de funcionario público, o también, que la promesa tuviese un contenido distinto al contemplado en la acusación. El abanico de posibilidades, como se ve, es extenso. El tema aquí no es la recepción de los fondos de origen irregular, hecho que se demostró sobradamente, sino establecer que antes de esa recepción, específicamente, el día 17 de agosto de 2000, se cursó una promesa u ofrecimiento de retribución económica y que [Nombre01 018] lo aceptó. No solo es imposible tener por demostrado que en la citada fecha a [Nombre01 018] se le prometió una dádiva, menos aún que fue a cambio de “atender al público” (acto propio de sus funciones que según dijo el Ministerio Público en sus conclusiones, esperaba [Nombre01 041] de [Nombre 018], f. 16.055 frente). Ahora, no obstante el error en la valoración de las probanzas, es innecesario anular lo resuelto y ordenar la realización de un nuevo juicio, ya que al igual que se explicó al examinar la situación de otros imputados, no se vislumbra la posibilidad de que se incorporen elementos de prueba adicionales a los ya existentes y en ese tanto, tampoco hay impedimento para que en esta etapa procesal se proceda a resolver directamente lo que corresponda, considerando tanto el marco fáctico imputado como los hechos que se han tenido por demostrados y que se mantienen incólumes tras excluir el ofrecimiento de una dádiva. Y es que, suprimida la promesa u ofrecimiento, subsiste lo necesario para tener por configurado el delito de enriquecimiento ilícito y por ende, para confirmar la sentencia de primera instancia en cuanto lo declaró así. El tipo penal del enriquecimiento tiene dos modalidades, como ya se dijo, la admisión de dádiva presentada y la admisión de dádiva ofrecida. Si bien no se puede asegurar que [Nombre01 018] admitió una dádiva que le fue ofrecida, sí se puede afirmar -pues Nombre02 se contempló tanto en la acusación como en la relación de hechos probados- que este justiciable admitió varias retribuciones económicas que le fueron presentadas en consideración a su oficio y mientras ocupó el cargo de diputado. Corresponde ahora examinar cada una de esas retribuciones. Primera entrega: En los hechos probados N° 213 y 214, se afirma que en fecha 10 de diciembre de 2001 el acusado [Nombre01 028], del dinero previamente transferido por la empresa [Nombre 060], giró el cheque Nº 301 por setecientos cincuenta y cinco mil ciento veintitrés dólares ($755.123) contra la cuenta de [Nombre 058]. en el Cuscatlán International Bank y en fecha 10 de diciembre de 2001, adquirió con esa suma una serie de certificados de inversión al portador con el Banco Cuscatlán de Costa Rica, entre los que se encontraban los Nº Identificacion18 Nº Identificacion19 y Nº Identificacion20 cada uno por la suma de diez mil dólares ($10.000), y giró instrucciones al ente financiero para que los títulos fueran depositados en la cuenta Nº [Valor 060] a Nombre01 de BSJ International Bank con el Banco San José. Asimismo, que en fecha 15 de enero de 2002, el acusado [Nombre02 018], mientras permanecía en el ejercicio del cargo de diputado, admitió esa dádiva que le fue presentada en consideración a su oficio, al recibir en el BAC San José los tres certificados anteriores, que sumaron treinta mil dólares ($30.000). Para los suscritos, estos hechos configuran claramente el delito de enriquecimiento ilícito, ya que la presentación de la dádiva se dio con ocasión del cargo que ocupaba [Nombre 018] en la Asamblea Legislativa, siendo que además esta presentación, al igual que la admisión de la ventaja económica, ocurrió mientras él se desempeñaba como diputado. Segunda entrega: [Nombre01 018] fue diputado hasta el 30 de abril de 2002 (f. 15.998 frente). En el hecho demostrado número 216, se indica que el 10 de enero de 2002, [Nombre02 028], aplicó un débito a la cuenta de [Nombre 058]. Nº [Valor 012] con el Cuscatlán International Bank por sesenta mil dólares ($60.000) y adquirió seis certificados, entre ellos Nº 224-002-003852-2, Nº 224-002-003853-3, Nº 224-002-003854-1, Nº 224-002-003855-0 del Banco Cuscatlán de Costa Rica por diez mil dólares ($10.000) cada uno, emitidos al portador. Estos títulos le fueron entregados por [Nombre01 028] a [Nombre 018], quien los admitió el 11 de febrero de ese mismo año -fecha de su vencimiento- y de inmediato los endosó y depositó en su cuenta Nº [Valor 047] con el BAC San José, junto con los cuatro cupones de intereses por un total de $129.16. Esto también constituye un delito de enriquecimiento ilícito, pues se admitió una dádiva con ocasión del cargo, durante el ejercicio de este. Tercera y sucesivas entregas: Según se extrae de los hechos demostrados, la tercera a séptima entrega de dádivas a [Nombre01 018] ocurrieron con posterioridad a que este había dejado el cargo de diputado, con lo cual sus acciones (consistentes en aceptar esas retribuciones económicas), resultan atípicas. Es importante indicar que del tipo penal en comentario y en particular, del supuesto según el cual se admite una dádiva presentada, se extrae que la admisión debe tener lugar mientras el funcionario público ejerce el cargo en consideración al cual se le presenta la retribución económica, en el caso particular, el cargo de diputado, no bastando solamente con que ostente la condición de funcionario público. Por esto, es irrelevante que del 8 de mayo de 2002 al 21 de abril de 2004, [Nombre 018] fuese presidente ejecutivo de la C.Nombre82. Consecuencias de lo antes dispuesto. Para esta cámara la decisión antes referida no tiene ningún impacto sobre la calificación jurídica atribuida a los hechos que se han tenido por demostrados, ya que una vez suprimida hipotéticamente la referencia a la promesa u ofrecimiento de dádiva y, en consecuencia, a la existencia de una sola retribución económica que fue ofrecida y pagada en tractos, se mantienen incólumes los elementos necesarios para tener por demostrado cuando menos el delito de enriquecimiento ilícito por el cual condenó el tribunal de mérito a [Nombre01 018], a saber, que este imputado admitió las dádivas que le fueron presentadas por su condición de diputado y en particular, de presidente de la comisión legislativa que abordaría el tema de telecomunicaciones, todo lo que sucedió mientras desempeñaba el cargo referido. Como vimos, se tuvo por demostrado que los días 15 de enero y 11 de febrero de 2002, aceptó varios certificados de inversión al portador. Específicamente, el día 15 de enero de 2002 tres certificados por diez mil dólares cada uno (hecho demostrado N° 214) y el 11 de febrero del 2002, cuatro certificados, también por un monto de 10.000 dólares cada uno (hecho probado N° 216). Es importante acotar que si bien para este tribunal se configuran no uno, sino dos enriquecimientos ilícitos en concurso material, el a quo consideró que se configuraba un único delito, decisión que no fue objeto de impugnación por el órgano requirente y en ese tanto, no se puede modificar en perjuicio del imputado. Tratándose de las restantes dádivas trasladadas a [Nombre01 018] la situación es otra . Como ya explicamos, por haber sido presentadas durante el año 2003 e inicios de 2004, entiéndase, tiempo después de que [Nombre01 018] dejó el cargo de diputado, su recepción resulta atípica. Nos referimos a las retribuciones económicas descritas en los hechos probados números 219) a 241) y que en pocas líneas, se relacionan con lo recibido por [Nombre01 018] a través de la cuenta de [Nombre01 063] en el Banco Internacional de Costa Rica en Miami ($55.584.44, cfr. hechos probados N° 219 a N° 223); un certificado de inversión por $50.000 que le fue entregado a [Nombre01 018] por [Nombre01 028] y que según los hechos probados, él pidió a [Nombre01 158] depositar en la cuenta de [Nombre01 215] (hecho N° 225) y finalmente, los dineros que le ingresaron a través de la cuenta bancaria de la citada empresa -[Nombre 215]- en Panamá (hechos probados N° 224 a 241). Esta situación, que no tiene ninguna incidencia en lo que a la calificación jurídica respecta, ya que como se indicó supra, el tribunal de mérito condenó por un solo delito de enriquecimiento ilícito que se configuró desde el momento en que [Nombre01 018] aceptó las dádivas que le fueron presentadas cuando todavía era diputado, sí la tiene en cuanto a la pena impuesta, ya que en la sentencia se aplicó el extremo mayor previsto en el tipo penal (dos años de prisión), tras considerar entre otros aspectos, el monto total recibido por [Nombre01 018] y no solo lo admitido mientras ocupaba el puesto de diputado (f. 16.066 frente, tomo XXXIII). Aunado a esto, como lo denuncia el recurrente en el duodécimo motivo, el a quo también impuso la pena de inhabilitación sin explicar las razones de esa decisión (lo que se confirma con la simple lectura del folio antes mencionado). En resumen y por lo antes indicado, se mantiene incólume la sentencia de instancia en cuanto declaró a [Nombre01 018] autor responsable de un único delito de enriquecimiento ilícito, aclarando no obstante, que esa condenatoria solamente tiene que ver con las retribuciones económicas admitidas por este imputado los días 15 de enero y 11 de febrero, ambos de 2002 (hechos demostrados N° 214 y 216). Se anula la sentencia en cuanto impuso a [Nombre01 018] una pena de dos años de prisión e inhabilitación por 12 años para obtener y ejercer empleos, cargos o comisiones públicas. Se ordena el reenvío de la causa al tribunal de juicio para que, con una nueva integración y la debida fundamentación, proceda a fijar el quantum de la sanción que corresponda.

XXXI.- Octavo motivo. 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. En este acápite, el recurrente señala: “… El Considerando X-D se refiere a la que denomina segunda entrega de la dádiva a [Nombre01 018]. Incorpora en sus razonamientos el voto de mayoría la tesis de que [Nombre01 018] recibió seis certificados de inversión por parte de [Nombre01 091] mediante entrega que le hace la empresa [Nombre 058]. En primer lugar, ha de advertirse del error en que incurren las Juezas al indicar que se trata de seis certificados, como refieren al Folio 1579, cuando en realidad son 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 [Nombre 058] 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 [Nombre01 028] al imputado [Nombre01 018] y que éste último los admitió de aquel 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 [Nombre01 018] endosó los títulos y los depositó en su cuenta, pero de ninguna manera comprueba que [Nombre01 028] 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. Es lo que se denomina simple tradición y por lo tanto no puede constar quién le entregó el título a su poseedor y ese es el sentido de su denominación como AL PORTADOR. Inclusive por ello el título no es reponible en caso de pérdida, como regla el numeral 719 del mismo Código, ya que no consta la persona legítimamente poseedora. Si [Nombre01 028] adquirió los títulos emitidos el 10 de enero del 2002 y no constan, como no pueden constar, endosos en el dorso de los documentos y estos aparecen depositados en la cuenta de [Nombre02 018], lo único que se demuestra con ello es que los títulos le fueron entregados por alguien mediante simple tradición a [Nombre01 018] , pero de ninguna manera que esa persona fue [Nombre 028], como aventuradamente expresan las Juezas...” (F. 172.758 a 172.759 frente). En el presente motivo del recurso se afirma que transcurrió un mes entre el momento en que [Nombre01 028] retiró los títulos y el momento en que los depositó en la cuenta de [Nombre01 018], por lo que es posible que el primero se los haya entregado a cualquier otra persona, esta a su vez a otra y así, paso a paso, hasta llegar a [Nombre01 018], sin que por ello se pueda presumir que [Nombre01 028] se los dio a [Nombre01 018]. Las juezas, en apoyo de su postura, citan el artículo 717 del Código de Comercio, el cual fue derogado desde 1990, por la ley Nº 7201. En todo caso, esta norma decía que el título pertenece a quien lo tiene en su posesión, lo que nadie ha cuestionado. Igualmente, que 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 que deba tenerse que el adquirente inicial fue quien entregó el título al depositante. Añade que las juezas desconocen las normas básicas del derecho comercial, cuando afirman 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 [Nombre01 028] pasó a [Nombre01 018]”. Según las juezas, como no se logra constatar una cadena de transmitentes, debe suponerse que es el adquirente original quien se lo entregó al poseedor final. Lo anterior solo es Nombre02 en los títulos nominativos, que se transmiten por endoso y no en los títulos al portador, como eran los que se examinan en este caso. Añade que en los títulos al portador lo propio es que esté ausente la cadena de transmitentes, de ahí que lo que echa en falta el tribunal es lo que Nombre11 se da en esta materia, es decir, no hay cadena de transmitentes porque los documentos no se endosan. Por ello, no se puede deducir que [Nombre01 028] fue quien entregó los documentos a [Nombre 018]. Añade que otro error del tribunal es señalar que como los títulos tienen una leyenda al dorso que expresa que solo se pueden depositar en la cuenta de [Nombre01 018], ello evidencia que se los entregó [Nombre01 028]. Para el recurrente, nada tiene que ver una cosa con la otra. [Nombre01 018] recibió los títulos de una persona no determinada y endosó los documentos con esa leyenda para depositarlos en su cuenta, sin que se pueda relacionar esto con [Nombre01 028]. Según el voto de mayoría, como se depositó en la misma cuenta que otras transferencias, esto hace pensar que se los entregó [Nombre01 028]. Sin embargo, esto es un disparate, que llevaría a sostener que toda suma que llegó a esa cuenta tiene su origen en [Nombre01 028]. En síntesis, la conclusión de que fue [Nombre01 028] quien entregó los títulos a [Nombre01 018] es una elucubración interesada, que desprecia las reglas del derecho comercial y el correcto entendimiento humano. Siendo que no se puede comprobar tal situación, la adquisición de los títulos debe tenerse como legítima y jurídicamente correcta y, en consecuencia, la conducta de [Nombre01 018] sería impune.

XXXII.- El motivo no puede prosperar: En primer término, es importante señalar que el delito se tiene por configurado desde que el justiciable aceptó los primeros tres certificados (Nº Identificacion18 Identificacion19 y Identificacion20 con lo cual los argumentos del recurrente que se refieren a la segunda recepción de certificados , en modo alguno modifica lo que se ha resuelto en sentencia. En segundo lugar, si bien a folio 16.020 frente se hace referencia a 6 certificados, con absoluta claridad se explica que cuatro de ellos son los que se relacionan con [Nombre01 018] (f. 16.021 frente), no dándose el error denunciado en el recurso. Finalmente, para desvirtuar la conclusión del tribunal, en el sentido de que estos cuatro certificados le fueron entregados por [Nombre01 028] a [Nombre01 018], el recurrente deja de lado una serie de elementos que son analizados a lo largo de la resolución de modo integral y armónico y que permiten tener por demostrada razonablemente la citada circunstancia, a saber: i) los cuatro certificados fueron endosados por [Nombre01 018] con lo cual es innegable que él fue su receptor; ii) [Nombre01 018] dispuso de los fondos, esto al depositarlos en su cuenta y luego refundirlos con los tres primeros certificados que recibió de [Nombre01 058].; iii) estos cuatro certificados tiene las mismas características de los tres antes recibidos, a saber, se originan en el Banco Cuscatlán, son al portador, a un mes y un día de vencimiento y [Nombre01 018], de modo similar, los cambió e ingresó en su cuenta del Banco San José el 11 de febrero de 2002; iv) estos certificados nacen de una inversión de captación por $60.000,00 que ordenó [Nombre 028] y que dio lugar a un grupo de 6 certificados, 4 entregados a [Nombre02 018] y 2 a [Nombre 063] (de hecho, los dos cambiados por [Nombre01 063] son el que antecede y el que cierra la serie numérica, a saber, los Nº 3851 y 3856), lo que no es producto de la casualidad (f. 16.021 a 16.024 frente). Para esta cámara, de los anteriores indicios (considerados de modo integral) se desprende que los certificados fueron también una dádiva entregada a [Nombre01 018] y admitida por él cuando ocupaba el cargo de diputado. La defensa elabora toda una explicación para tratar de romper el vínculo que une los certificados con [Nombre01 018], afirmando que por ser al portador, es imposible determinar que fue [Nombre01 028] y no un tercero quien se los entregó al justiciable. Sin embargo, se trata de una explicación alambicada que parte de un análisis fraccionado y sesgado de la prueba, que en modo alguno se ajusta a las más elementales reglas de la experiencia común. Y es que, de nuevo, no se trata de unos certificados cuyos fondos tienen un origen desconocido. Todo lo contrario, son certificados con fondos de [Nombre02 060], que fueron tramitados por [Nombre 058]., en las mismas condiciones que otras dádivas entregadas en este asunto, e incluso en las mismas condiciones de aquellos certificados que previamente había recibido [Nombre 018]; certificados que son endosados y dispuestos por este, depositándolos en su cuenta para luego unirlos con los fondos que había recibido antes, también de [Nombre01 060], vía [Nombre 058] . Tan es Nombre02 que la misma defensa admite este extremo, al pretender justificar la recepción de los fondos con una supuesta consultoría cuya existencia se descartó de forma fundada. Aunado a esto, no es casual que los pagos se efectuasen de esta manera, ya que sin duda los imputados, entre ellos [Nombre01 018], son los principales interesados en tratar de poner distancia con las ganancias ilícitas. Finalmente, a efectos de establecer que esos certificados fueron entregados a [Nombre01 018] con ocasión de su cargo, no es un indicio nada despreciable considerar que los otros dos certificados -de una serie de seis- fuesen cambiados por [Nombre02 063], persona cuya conexión con [Nombre01 018] está más que demostrada en la sentencia y a quien se le atribuyó contactarlo con los jerarcas de [Nombre01 091]. En suma, solo a través de un examen parcializado y fragmentario de las probanzas, alejado de las más elementales reglas de la experiencia común, podría avalarse la tesis de la defensa, en el sentido de que como los certificados son al portador, es imposible establecer un vínculo entre [Nombre01 058]. y [Nombre01 018]. Es importante reiterar que si bien este imputado, tras ser diputado en el período comprendido entre el 1 de mayo de 1998 al 30 de abril de 2002, ocupó la presidencia ejecutiva de la Caja Costarricense de Seguro Social (específicamente, del 8 de mayo de 2002 al 21 de abril de 2004), la aceptación de sumas procedentes de [Nombre01 060] cuando se encontraba en este último puesto no pueden considerarse constitutivas del delito de enriquecimiento ilícito aquí investigado y juzgado, ya que lo que plantea el tipo penal es que la dádiva sea recibida mientras se ocupa el cargo que motivó su presentación -en este caso, el de diputado- y no cualquier otro. A mayor abundamiento, nótese que en la acusación se establece una relación directa entre la dádiva y la condición de diputado de [Nombre01 018], no Nombre02 con su condición de presidente ejecutivo de la mencionada institución autónoma, lo que también permitiría descartar cualquier posibilidad de comprender dentro del delito de enriquecimiento ilícito aquí enjuiciado, las dádivas que admitió cuando ocupó este último cargo. Por todo lo expuesto, se rechaza el reproche.

XXXIII.- Noveno motivo. Se aplicó un tipo penal derogado, en irrespeto al artículo 369 inciso i) del CPP. El recurrente afirma: “… Sostiene esta representación que 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. Recordemos que el Código Penal entró en vigencia en 1971, de conformidad con su Artículo 406, por lo que, en virtud de los principios de hermenéutica jurídica, de tratarse de la misma conducta, la ley posterior deroga a la anterior. El numeral 346 que se aplica en la especie sanciona a quienes admitan dádivas en consideración a su oficio con una pena de prisión de seis meses a dos años. El Artículo 26 de la Ley 6872 estableció el delito de enriquecimiento ilícito con una pena de seis meses a seis años. En principio, es absurdo que existan dos figuras penales con la misma denominación de tipicidad en dos cuerpos legales diferentes, lo que refleja que la voluntad legislativa tácita era dejar sin efecto las figuras del 346 del Código Penal bajo el título de enriquecimiento ilícito y sustituirlas por las del Artículo 26 de esa ley con la misma denominación. Pero de interpretarse que pueden existir tipos penales con el mismo Nombre01 en dos leyes diferentes, es claro que el legislador tenía en mente dos cosas: agravar la pena, aumentando el máximo de dos a seis años y creando la figura de la sanción cuando realizare las acciones dentro del año siguiente a la cesación en el cargo, lo que no estaba regulado en el Artículo 346. Eso en principio justifica el cambio de regulación, pero hay aún más. Los incisos a) y c) del Artículo 26 regulan conductas como la adquisición de bienes de cualquier índole o naturaleza, dentro de los cuales está evidentemente el título valor al portador o el dinero efectivo o el solo enriquecimiento per se, más allá de su remuneración ordinaria, lo que es una especie de cajón de sastre o concepto esponja que absorbe toda recepción de dineros o bienes que no se deriven de su relación laboral con el Estado. La recepción de dádivas es una forma de enriquecimiento o adquisición de bienes, ahora con una pena con el máximo mayor y con la incorporación de la norma sancionatoria del año posterior al cese de la relación de servicio. Por eso no es cierta la afirmación del Tribunal en el sentido de que esas conductas del numeral 26 son totalmente distintas a las del Artículo 346, como erróneamente indica en el folio 1617. En respaldo de nuestra tesis debemos indicar que el Tribunal en ningún momento hace un análisis detallado de las conductas tipificadas para llegar a su conclusión, más allá de enlistarlas y copiarlas en un lindo cuadro, sin explicación alguna, que transcribe a los folios 1619 al 1622. No abunda en razones de por qué estima que se trata de conductas diferentes, … Su error es tal que atribuye la aprobación de los incisos a) y c) del Artículo 26 a la Convención Interamericana contra la Corrupción del año 1996, cuando tales textos son aprobados en 1983, TRECE AÑOS ANTES. De nuevo el descuido y la falta de conocimientos jurídicos, que son reiterados en la sentencia de mayoría. El otro argumento para sostener la vigencia del numeral 3) del Artículo 346 del Código Penal es que, según ellas, su numeración fue modificada por el Artículo 185 inciso a) de la Ley 7732 del 17 de diciembre de 1997, que lo traspasó del 344 al 346. Esa afirmación es ABSOLUTAMENTE FALSA y de nuevo refleja la negligencia y el descuido de las Juezas. Lo que el numeral 185 de la Ley 7732 hace es crear dos tipos penales nuevos, bajo la figura de Delitos Bursátiles, sin hacer referencia alguna al numeral 346 ni correr expresamente su numeración, por lo que nadie presumió su vigencia en dicha Ley 7732. Sostiene también que el Artículo 69 de la Ley 8422 del 6 de octubre del 2004 reconoce la vigencia del Artículo 346 al derogar uno de sus incisos. Lo que no dicen las Juezas, porque no les conviene, es que la Sala Constitucional, en su Voto 11584-2001 del 9 de noviembre del 2001 estableció que algunos de los incisos del 346 quedaron derogados desde la Ley 6872 de 1983, como se ha venido diciendo, pero que su constatación expresa es competencia de otros tribunales, se entiende de los de carácter penal. Pero las Juezas irrespetan la sentencia de la Sala, como muchas otras veces y la ignoran del todo, para ellas todo el numeral 346 está vigente y ni siquiera paran mientes en omitir del todo el criterio constitucional. Incluso se cita la opinión de esta defensa en cuanto a la existencia de este voto, pero ello no le merece el más mínimo comentario a las Juezas, posiblemente porque no les convenía a sus propósitos. Lo importante de esta derogatoria de 1983 es que entonces las conductas presuntas de [Nombre01 018], que ocurren según la sentencia entre enero del 2002 y enero del 2004 estaría reguladas ya no por el 346 del Código Penal, sino por el Artículo 26 de la Ley 6872. Pero siendo que los incisos a) y c) de esa norma fueron declarados inconstitucionales por la Sala Constitucional por resolución 1707-95 de las 15:39 horas del 28 de marzo de 1995, no serían aplicables a la especie y las acciones de [Nombre01 018] 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…” (F. 172.760 y 172.761 frente). Finalmente, en el recurso se añade que el tribunal criticó a la defensa por no citar el fallo Nº 205-1995 de la Sala Tercera, sugiriendo Nombre02 que lo dicho en relación con él era un invento, cuando lo cierto es que el mismo a quo lo mencionó al explicar que hay incisos del artículo 346 del Código Penal que fueron derogados, entre ellos el inciso 3), derogación que sobrevino por la Ley Nº 6872 y Nombre02 solicita se declare por esta cámara.

XXXIV.- No se acoge el motivo: El tema en cuestión también fue resuelto por la Sala Tercera, que en lo que interesa, indicó: “Se acoge el motivo. El antiguo artículo 346 del Código Penal de 1970 (actual artículo 353 del Código Penal), concibió el tipo penal de Enriquecimiento Ilícito como residual, en el tanto, podía ser aplicado únicamente ante la imposibilidad legal de probar otras figuras más gravosas contra funcionarios públicos, según se deduce de la letra de la norma, que en lo que interesa señalaba: “Será reprimido con prisión de seis meses a dos años, el funcionario público que sin incurrir en un delito más severamente penado: 1) Aceptare una dádiva cualquiera o la promesa de una dádiva para hacer valer la influencia derivada de su cargo ante otro funcionario, para que éste haga o deje de hacer algo relativo a sus funciones;/2) Utilizare con fines de lucro para sí o para un tercero informaciones o datos de carácter reservado de los que haya tomado conocimiento en razón de su cargo;/3) Admitiere dádivas que le fueren presentadas u ofrecidas en consideración a su oficio, mientras permanezca en el ejercicio del cargo; y /4) (DEROGADO por el artículo 69 de la Ley N° 8422 Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública del 6 de octubre de 2004). Nombre02 modificada la numeración de este artículo por el numeral 185, inciso a), de la ley No.7732 del 17 de diciembre de 1997, que lo traspasó del 344 al 346)” (El suplido no pertenece al original). Sin embargo, con la vigencia de la Ley Nº 6872, Ley sobre Enriquecimiento Ilícito de los Servidores Públicos, del 17 de junio de 1983, se presentó la disyuntiva, referente a sí con la entrada en vigencia del artículo 26 del último cuerpo normativo, había sido eliminado el numeral 346 supra citado, ya que sobre su vigencia la Ley 6872 era omisa, o si por el contrario, se trata de dos normas que se complementan entre sí, dado que el ordinal 32, estableció como parte de las disposiciones para la entrada en vigencia de la Ley de cita, la condicionante que establecía: “…Rige a partir de su publicación y deroga y modifica las disposiciones legales que se le opongan” (El suplido no pertenece al original), debiendo entenderse la vigencia plena del artículo 346, a partir de una ausencia de derogación tácita, que se desprende de la comparación de las acciones penales descritas en ese tipo penal, con aquellas reguladas en la norma 26 de la Ley 6872, para determinar su no oposición regulatoria y por ende la subsistencia paralela en el ordenamiento jurídico costarricense. Ciertamente, para efectos de un mayor entendimiento, del siguiente estudio comparativo es posible comprobar la variedad de conductas ilícitas que ambos tipos penales describen, sin que se pueda inferir alguna oposición entre ellos como único supuesto en el que puede ser aplicada la derogación tácita contenida en el numeral 32 de la Ley 6872:

Acciones Típicas del delito de Enriquecimiento Ilícito contempladas en el artículo 346 del Código Penal de 1970 Acciones Típicas del delito de Enriquecimiento Ilícito contemplado en el artículo 26 de la Ley 6872, Ley sobre Enriquecimiento Ilícito de los Servidores Públicos del 17 de junio de 1983, vigente hasta la Ley 8422 Será sancionado con prisión de seis meses a dos años al funcionario público que sin incurrir en un delito más severamente penado:

Incurrirán en el delito de enriquecimiento ilícito y serán sancionados con prisión de seis meses a seis años, los servidores públicos que en el ejercicio de un cargo público, o dentro del año siguiente a la cesación de su relación de servicio:

• 1)Aceptare una dádiva cualquiera o la promesa de una dádiva para hacer valer la influencia derivada de su cargo ante otro funcionario, para que éste haga o deje de hacer algo relativo a sus funciones; No se consigna ninguna descripción semejante en este tipo penal.
• 2)Utilizare con fines de lucro para sí o para un tercero informaciones o datos de carácter reservado de los que haya tomado conocimiento en razón de su cargo; No se consigna ninguna descripción semejante en este tipo penal.
• 3)Admitiere dádivas que le fueren presentadas u ofrecidas en consideración a su oficio, mientras permanezca en el ejercicio del cargo; No se consigna ninguna descripción semejante en este tipo penal.
• 4)(DEROGADO por el artículo 69 de la Ley 8422, Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública del 6 de octubre de 2004).

No se consigna ninguna descripción semejante en este tipo penal.

No se consigna ninguna descripción semejante en este tipo penal.

• a)Adquieran bienes de cualquier índole o naturaleza, sin poder probar el origen lícito de los recursos de que han dispuesto para tal efecto, excepción hecha de su salario o de las sumas que legalmente puedan devengar, (ANULADO por resolución 1707-95 de las quince horas treinta y nueve minutos, del veintiocho de marzo de mil novecientos noventa y cinco, de la Sala Constitucional) No se consigna ninguna descripción semejante en este tipo penal.
• b)Mejoren su situación económica en las circunstancias descritas, habiendo cancelado deudas o extinguido obligaciones que afectaban su patrimonio.

No se consigna ninguna descripción semejante en este tipo penal.

• c)Se enriquezcan de cualquier modo como consecuencia exclusiva del cargo, sin acreditar la licitud de su aumento de fortuna y la verosimilitud de las fuentes de recursos invocadas. (ANULADO por Resolución de la Sala Constitucional Nº 1707-95 de las 15:39 horas del 28 de marzo de 1995).

No se consigna ninguna descripción semejante en este tipo penal.

ch) Consientan, faciliten o intervengan de cualquier modo, por su influencia, conocimiento o función, en el enriquecimiento de un tercero, funcionario público o no.

No se consigna ninguna descripción semejante en este tipo penal.

• d)Incurrirán en igual delito y serán sancionados con la misma pena, los Nombre10 Nombre11 que dicten o promulguen leyes, decretos, acuerdos o resoluciones, en que se otorguen beneficios para su exclusivo provecho, o para sus parientes hasta el segundo grado de consanguinidad o afinidad.

No se consigna ninguna descripción semejante en este tipo penal.

• e)Incurren también en el delito tipificado en este artículo, los servidores cuyos cónyuges, ascendientes o descendientes por consanguinidad o afinidad hasta el segundo grado, se enriquezcan sin poder dar demostración fehaciente de la licitud del incremento en sus bienes o fortuna. Para tales efectos el pariente se considerará coautor o cómplice, de conformidad con las reglas establecidas en el Código Penal (ANULADO por Resolución de la Sala Constitucional Nº 1707-95 de las 15:39 horas del 28 de marzo de 1995).

No se consigna ninguna descripción semejante en este tipo penal.

• f)Igualmente sufrirá las sanciones que procedan, cualquier persona física o jurídica que se preste para que, por su medio, realizar el delito./Cuando los delitos a que se refiere la presente ley se realicen a través de una persona jurídica, o con su participación, la responsabilidad se atribuirá a sus personeros, gerentes, administradores o directores que hayan participado o consentido en la acción, sin perjuicio de que las consecuencias civiles del delito recaigan, además, sobre la sociedad o compañía.

Conforme al recuadro anterior, es posible desprender que con la Ley 6872, Ley sobre Enriquecimiento Ilícito de los Servidores Públicos, del 17 de junio de 1983, vigente hasta la promulgación de la Ley 8422, del 29 de octubre de dos mil cuatro, el delito de Enriquecimiento Ilícito contemplado en el antiguo numeral 346 del Código Penal, lejos de ser derogado tácitamente, se mantuvo vigente, al conservar el delito de Enriquecimiento Ilícito la descripción de conductas delictivas que no estaban incluidas en el artículo 26 de la Ley 6872. Nótese, verbi gracia, que las acciones típicas contempladas en el numeral 346 citado, incluían la admisión de dádivas presentadas u ofrecidas al funcionario público en razón de su cargo (Artículo 346, inciso 3) del Código Penal); la aceptación y promesa de dádiva para hacer valer la influencia derivada del cargo de funcionario (Artículo 346, inciso 1) del Código Penal) y la utilización con fines de lucro para sí o para un tercero de informaciones o datos de carácter reservado obtenidos en razón del desempeño de la función pública (Artículo 346, inciso 3) del Código Penal), mientras que las acciones contempladas en el numeral 26 de la Ley 6872, Ley sobre Enriquecimiento Ilícito de los Servidores Públicos del 17 de junio de 1983, aparte de aumentar la sanción en su extremo máximo y presentar la novedad de ser aplicadas a sujetos sobre los cuales ya había cesado la relación de servicio en un año anterior, presentó la descripción de conductas diversas a las contenidas en el artículo 346 del Código Penal, en las que no se usaron los términos: promesas o presentación de dádivas, sino que se trató de la judicialización de actos en los cuales funcionarios públicos hubiesen mejorado inexplicablemente su situación económica (Artículo 26 inciso b) de la Ley 6872); consentido, facilitado o intervenido de cualquier modo en el enriquecimiento de un tercero, funcionario público o no (Artículo 26 inciso ch) de la Ley 6872); en los que los Nombre10 Nombre11 otorgasen beneficios para su exclusivo provecho, o para sus parientes hasta el segundo grado de consanguinidad o afinidad, al dictar leyes, decretos, acuerdos o resoluciones (Artículo 26 inciso d) de la Ley 6872); entre otros. De esta manera, al no contradecirse ambas normas, sus acciones delictivas descritas se mantuvieron vigentes, conforme a la letra de los numerales 32 de la misma Ley 6872 y de la vigencia posterior de los artículos 69 y 70 de la Ley 8422, Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, del 29 de octubre de 2004, que a su entrada en vigencia derogaron de manera expresa, únicamente el inciso 4 del artículo 346 supra citado (artículo 69 de la Ley 8422) y la Ley sobre el Enriquecimiento Ilícito de los servidores públicos, Nº 6872, de 17 de junio de 1983 (artículo 70 de la Ley 8422), siendo que en dicha derogatoria debió entenderse incluido el artículo 26 de la Ley 6872, lo que comprueba, que el legislador, también reconoció su vigencia simultánea en nuestro ordenamiento jurídico y por ello, debió decretar la derogatoria del inciso cuatro del antiguo artículo 346 y del 26 de la Ley 6872 en su totalidad. Sobre este último tema, debe reconocerse,- tal y como lo hiciere en su momento el voto de mayoría de la sentencia 167-2011-, que esta Sala Tercera, en el voto 205-F-1995, de las nueve horas, del siete de abril de mil novecientos noventa y cinco, implícitamente reconoció la vigencia del inciso 2) del antiguo artículo 346 del Código Penal, cuando recalificó en un caso puesto a su conocimiento los hechos acreditados de concusión al delito del Enriquecimiento Ilícito, a pesar que para ese momento ya había entrado en vigencia la Ley 6872. Asimismo, que con la reforma al antiguo artículo 346 del Código Penal, introducida en el año 2004, con la Ley 8422, no fueron derogados tácitamente o expresamente los incisos 1), 2) y 3) de dicha norma, pues los ordinales 69 y 70 de la mencionada ley, únicamente derogaron de forma expresa el inciso cuarto de ese numeral y la Ley 6872 en su totalidad, debiendo entenderse de la literalidad de ambas normas como vigentes los incisos 1), 2) y 3) citados: “Artículo 69.-Derogación del inciso 4) del artículo 346 del Código Penal. Derógase el inciso 4) del artículo 346 del Código Penal. Artículo 70.-Derogación de la Ley Nº 6872 . Derógase la Ley sobre el enriquecimiento ilícito de los servidores públicos, Nº 6872, de 17 de junio de 1983” (El suplido pertenece al original). Ver en igual sentido, la Opinión Jurídica 018-J-2000, del diecisiete de febrero de dos mil, de la Procuraduría General de la República, en la que a propósito del proyecto de la Ley contra la Corrupción y el Enriquecimiento Ilícito, que era conocido en la Comisión Permanente de Gobierno y Administración, también se estableció: “…16.- De los delitos : Por medio del capítulo V del Proyecto denominado "De los delitos", se crean una serie de tipo penales que tienen como común denominador el combate de la corrupción, recreando una amplia gama de circunstancias a las que comúnmente se ve sometido el funcionario o servidor público./ También se dispone la derogación en forma total de la Ley sobre Enriquecimiento Ilícito de los Servidores Públicos (Nº 6872), la cual contiene una serie de tipos penales similares a los que se proponen en el proyecto; mas debe anotarse que Nombre11 siguen vigentes dentro del Código Penal algunos ilícitos que tienen similitud con los que se pretenden incorporar…”(El suplido es nuestro)”. Por otra parte, debe señalarse que los alcances que el Tribunal de Apelación, le otorga al voto 2001-11584, de las ocho horas con cincuenta y tres minutos, del nueve de noviembre del dos mil uno, de la Sala Constitucional, para inaplicar la antigua norma 346 del Código Penal, no se derivan del texto de la aludida sentencia, ya que en ella a propósito del argumento de derogación tácita del citado artículo 346, utilizado por los legisladores consultantes se estableció: “Derogatoria tácita del artículo 346 del Código Penal. Finalmente, se consulta el artículo 68 del proyecto de ley, en razón de que dicho numeral introduce una confusión relacionada con el principio de seguridad jurídica. La norma da por sentado la vigencia de los incisos que no deroga, no obstante que con la promulgación de la Ley No.6872 de 17 de junio de 1983 "Ley de Enriquecimiento Ilícito de los Servidores Públicos", el legislador ya había dispuesto la derogatoria en el artículo 32 de esa ley. Para los consultantes se quebrantan los principios que rigen la vigencia y derogatoria de las leyes consagrado en el numeral 129 de la Constitución Política. Ciertamente, las disposiciones que se opongan a la Ley número 6872 de 17 de junio de 1983 quedaban derogadas conforme lo dispuesto en su artículo 32, pero la constatación de cuáles disposiciones afectaba y si en ellas se incluía el inciso 4) del artículo 346, ahora derogado por el artículo 68 del proyecto consultado, no es una cuestión de constitucionalidad de la cual deba verter su opinión este tribunal…”, es decir, ese órgano Jurisdiccional, reconoció como facultad potestativa de interpretación de la vigencia de tales incisos a los Juzgadores, quienes a través del estudio de ambos cuerpos normativos, podían determinar si aquellos se contraponían entre sí, dado que de no verificarse esas supuestas contradicciones la norma del antiguo 346 con excepción del inciso cuarto, se mantenía vigente, denotándose en el razonamiento de segunda instancia, que los Juzgadores determinaron la no vigencia de la norma, a partir de supuestas incompatibilidades entre ambos artículos, aunque sin determinar en específico cuáles eran contradicciones o contraponer ambas normas en su estudio, tal y como lo hiciere en su momento el Tribunal de Juicio en el sub júdice, a partir de los folios 000016061 al 00016063 del tomo XXXII del expediente. En suma, al verificarse en la especie el vicio de errónea aplicación del antiguo artículo 346 del Código Penal, corresponde anular la sentencia, en cuanto al imputado [Nombre01 018] y reenviar el presente proceso al Tribunal de Apelación de Sentencia, para que con una nueva integración, proceda conforme a derecho corresponda.”. Como se observa, la vigencia del artículo 346 inciso 3) del Código Penal es un tema que fue decidido expresamente por la Sala Tercera, concluyendo que el tribunal de mérito no cometió un error al concluir que esta norma era aplicable al caso en examen. Se trata de una postura que los suscritos deben acatar al resolver el reenvío, pero que en cualquier caso también comparten, ya que el ámbito de aplicación del 346 inciso 3) del Código Penal y del numeral 26 referido no coinciden en su contenido. Mientras que el primero contempla la admisión de la dádiva presentada u ofrecida en consideración al oficio del funcionario público durante el ejercicio del cargo, en el artículo 26 mencionado se tipificaba algo distinto, a saber, un incremento patrimonial cuyo origen lícito el funcionario público no podía probar. Así, el inciso a) del numeral 26 contemplaba la adquisición de bienes de cualquier índole o naturaleza sin poder probar su origen lícito y el inciso c), el enriquecimiento de cualquier modo, como consecuencia exclusiva del cargo, sin acreditar la licitud del aumento de la fortuna y la verosimilitud de las fuentes de recursos invocadas. En tanto que en el art. 346 inciso 3) del Código Penal la acción se circunscribe a la admisión de la retribución o la promesa de esta en ciertas circunstancias (en consideración al oficio y durante el desempeño de este), siendo incluso plausible que la recepción material de la dádiva constituya un acto posterior impune (este es el caso de la admisión de la dádiva ofrecida), en el art. 26 lo que se tipifica el enriquecimiento que efectivamente tuvo lugar, donde lo determinante es la imposibilidad del funcionario público para demostrar el origen legítimo del incremento patrimonial experimentado. Incluso, aunque en el inciso c) se habla de un enriquecimiento como “consecuencia exclusiva del cargo”, basta leer el inciso completo para concluir que este contiene una presunción de carácter legal, según la cual todo el patrimonio del funcionario público que este no logre justificar, se considerará obtenido con ocasión del cargo desempeñado. Dicho en otras palabras, en este supuesto la acción típica no es valerse del cargo para enriquecerse, sino aumentar el patrimonio sin justificación alguna, hipótesis que además de ser claramente inconstitucional, es excluyente de la prevista en el numeral 346 inciso 3) del C.P. Por lo anterior, se declara sin lugar el motivo.

XXXV.- Décimo motivo. Se aplicó el numeral 346 inciso 3) del Código Penal en violación a la interpretación vinculante de la Sala Constitucional, en irrespeto al artículo 13 de la Ley de la Jurisdicción Constitucional y los incisos i) y j) del artículo 369 del C.P.P. En este acápite, el impugnante afirma: “ Las Juezas de mayoría estiman que [Nombre01 018] recibió una dádiva en virtud de su cargo y que ello es punible con fundamento en el Artículo 346 inciso 3) del Código Penal con independencia de que haya o no realizado labor alguna en beneficio de su presunto pagador. De considerarse vigente para la fecha de los hechos el Artículo 346 inciso 3) del Código Penal, se debe interpretar la norma de conformidad con lo que ha dispuesto la Sala Constitucional, en respeto pleno a la vinculación de los precedentes que señala el Artículo 13 de la Ley de la Jurisdicción Constitucional. La forma en que está redactado ese inciso 3) refleja que 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 señaló 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 Nombre33, 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. Esto es importante, ya que en palabras de la Sala no basta que el funcionario reciba bienes que incrementen su patrimonio ni que eso se demuestre, es preciso que ese incremento provenga de una actividad ilícita que no puede ser la sola recepción sino algo más, ya que en caso contrario, tendría el imputado que demostrar el origen de su incremento, con infracción de la prohibición de la inversión de la carga de la prueba. Esta doctrina es plenamente aplicable a los autos, ya que en este caso el tipo penal del Artículo 346 inciso 3) sanciona la sola recepción de dádivas sin necesidad de que el ente acusador pruebe la actividad ilícita que motiva esa recepción, con lo cual el imputado, en su defensa, debe probar el origen de esos fondos, en violación de los principios constitucionales expuestos…”. (F. 172.761 y 172.762 frente). Reprocha al tribunal no aplicar “la doctrina” antes referida, a pesar de que se le solicitó así. La interpretación hecha del artículo 346 mencionado, por el contrario, se opone a la Constitución Política y es nula, por contravenir el artículo 13 de la Ley de la Jurisdicción Constitucional.

XXXVI.- El reclamo no es atendible: Contrario a lo que afirma el recurrente, en el proceso aquí examinado no se ha invertido la carga de la prueba. Nótese que el órgano requirente, con abundantes elementos probatorios, logró demostrar que la dádiva que recibió el imputado [Nombre01 018] durante los meses de enero y febrero de 2002 le fue presentada por su condición de diputado y miembro de la comisión encargada del tema de telecomunicaciones; que procedía de la empresa [Nombre 091] (proveedora en ese ámbito) y, sobre todo, que esa retribución económica fue admitida por [Nombre01 018] durante el desempeño de aquel cargo público. Del mismo modo, el tribunal de mérito descartó con apego a las reglas de la sana crítica la tesis de la defensa del justiciable, en el sentido de que los dineros fueron obtenidos por haber realizado una asesoría a [Nombre01 091]: “Hasta aquí se aprecia entonces que el imputado [Nombre01 018] se desempeñaba como diputado de la Asamblea Legislativa y en virtud de esa condición es que se dan el primer acercamiento de personeros de [Nombre01 091], con el propósito de formar su opinión sobre el tema de las contrataciones directas en el ICE pues la empresa [Nombre 091] consideraba que provocaban su exclusión del mercado. Valga señalar, de una vez, que el representante legal del encartado, (quien no declaró, según es su derecho), ha sostenido que [Nombre01 018] prestó una asesoría a la empresa [Nombre01 091] sin que por su condición de diputado se le reconozca prohibición para prestar dicho servicio profesional. De tal argumentación es importante rescatar en primer orden, cómo –implícitamente- la defensa de [Nombre01 018] reconoce como cierta la imputación sobre la recepción de dineros procedentes de [Nombre01 060] vía [Nombre01 058]. y que lo único que rechaza es que haya sido a título de dádiva, pues sostiene que lo recibido fue una remuneración por la prestación de tales servicios. Entre los comparecientes al debate con trayectoria semejante en la Asamblea Legislativa, señores [Nombre01 249], [Nombre01 250] y [Nombre01 251] , entre otros, todos coincidieron en términos, más o menos similares, que a los diputados no se les reconoce prohibición y que, de hecho, algunos ejercen simultáneamente profesiones liberales. No obstante, como se irá analizando a lo largo de este Considerando, la prueba evacuada determina totalmente lo contrario, sea que el dinero recibido no fue por una asesoría profesional ni nada que se le parezca, sino que simple y sencillamente lo fue en carácter dádiva, por demás recibida y aprovechada por [Nombre01 018] . Por ello, aun cuando el acusado [Nombre01 018] lo hubiera negado -cosa que, como se dijo, implícitamente no hace, porque al señalar que fue por una causa distinta, admite la recepción del dinero- con el cúmulo probatorio se confirma que [Nombre01 018] recibió los citados dineros procedentes de [Nombre01 060] fruto de una dádiva y no por el pago de una remuneración lícita. De ahí que carece de relevancia si algunos de los testigos hayan manifestado la posibilidad legal de que el diputado ejerza la profesión liberal o, bien, se dedique a labores diversas de la función diputadil simultáneamente. Lo anterior porque esa es una manifestación de los declarantes en el plano teórico, pero no dan cuenta de lo ocurrido en la realidad concreta de [Nombre01 018], que refleja otra cosa distinta de la teoría. El perito Nombre97 refirió que del análisis de la documentación bancaria, no deriva que para la fecha de estos hechos [Nombre01 063] fuera asesor legislativo, ni tampoco se estableció que [Nombre01 018] fuera asesor de [Nombre01 091], o tuviera alguna relación comercial o laboral con [Nombre 058]. Nótese que además [Nombre02 091] ya contaba con un estratega político y conforme a las valoraciones y recomendaciones que había hecho [Nombre01 124] fue que se había procedido a abordar a actores claves en ciertos sectores, lo cual, en la práctica, inicialmente legal, finalmente desembocó en el pago de tales funcionarios, entre ellos [Nombre01 063] y [Nombre01 018]. No existe tampoco ninguna referencia sobre la existencia de la alegada consultoría, sino prueba en contrario. Aparte de lo dicho, nótese que en la empresa [Nombre 091 252] expresó que todas las consultorías se hacían por escrito y que constaban en la empresa y por eso no cabía contrato verbal cuando se pagan más de $700 mil, que él nunca ve un contrato de consultoría ni aprueba la entrega de este dinero. Señaló que todos los contratos de consultoría por más de $10 mil pasaban por sus manos y esto no ocurrió. También [Nombre01 128], [Nombre01 132] y [Nombre01 111] señalaron que el único asesor o estratega político era [Nombre01 124]. La testigo [Nombre01 111] agregó que ella estuvo en todo el proceso de la contratación de las 400.000 líneas celulares y nunca vio a [Nombre01 018] , ni escuchó de un asesor con ese nombre, ni que hubiera trabajado para la empresa [Nombre01 091]. Por otra parte, [Nombre01 158], su amigo por muchos años, tampoco lo vio ni oyó hablar sobre tal asesoría, sino que únicamente lo ve atendiendo a su clientela en su consultorio privado. Por el contrario, la versión que le suministra [Nombre01 018] a [Nombre01 158] es que se ganó un dinero con [Nombre01 091] de una forma fácil pues no hizo nada. Con el citado cúmulo probatorio si bien es posible afirmar que las prestaciones de servicios profesionales o labores distintas remuneradas no son incompatibles con el cargo de diputado, pues para el desempeño de éste no se reconoce pago de prohibición, lo cierto es que queda claro para el tribunal que [Nombre01 018] no fungió, bajo ninguna circunstancia, como asesor de [Nombre01 091] y que el dinero recibido de dicha empresa fue por concepto de dádiva con ocasión de su condición de diputado, que son dos cosas distintas. Otras razones abonan la anterior consideración: [Nombre01 142] dice que [Nombre01 041] manifestó a los medios de comunicación que él entregó dádivas a los funcionarios públicos; [Nombre01 116] también señala que espontáneamente [Nombre01 041] señaló que él pago sobornos a funcionarios públicos y entre ellos menciona a [Nombre01 018] y adiciona un aspecto fundamental en el sentido de que tal revelación la hizo [Nombre01 041], incluso, antes de que ese dato fuera revelado en la prensa nacional…Asimismo, en las reglas de contratación de [Nombre01 091] existe prohibición para que quienes funjan como asesores sean funcionarios públicos; expresamente se indica que no pueden ser agentes consultores los funcionarios públicos. Por último, cuando sale a relucir el escándalo [Nombre01 158] relata que él conversa con [Nombre01 018] quien antes le había dicho que el dinero es procedente de la venta de una propiedad en Jacob (sic), pero que en ese momento le confiesa que el dinero no proviene de la venta de dicha propiedad, sino del ofrecimiento de [Nombre01 041] por una asesoría que él había llevado a cabo con [Nombre01 091] para que ganara la licitación de los celulares, que [Nombre02 063] es un ingeniero del ICE que le había ayudado para ello y que SNQC fue el medio que se canalizó para la entrega del dinero. Se aprecia que en la narrativa de [Nombre01 018] si bien sostiene que el dinero tiene como causa la realización de una asesoría, igual reconoce parcialmente que la recepción de dinero está relacionada con su intervención en una licitación por celulares, circunstancia última -como se dijo- que se logra desprender claramente de la prueba; sin embargo, en lo atinente a la prestación de la asesoría ya se explicó ampliamente porque es una versión desechada por este órgano jurisdiccional.” (Cfr. f. 16.001 a 16.004 frente). Ante este panorama, carece de todo fundamento sostener que el tribunal de mérito invirtió la carga de la prueba, exigiendo a [Nombre01 018] demostrar el carácter lícito de los fondos. Todo lo contrario, su origen irregular fue debidamente acreditado a través de abundantes indicios descritos en los anteriores considerandos (a los cuales ha de estarse el recurrente), indicios que, simultáneamente, permitieron al a quo descartar también la tesis de que los ingresos eran el pago por una asesoría. Por último, es importante subrayar que a [Nombre01 018] no se le reprochó por incrementar su patrimonio de manera injustificada o sospechosa (lo que claramente resultaría inconstitucional por colocar al servidor público en la situación de tener que probar el origen lícito de sus bienes). En realidad, se le sancionó por admitir o aceptar dádivas que le fueron presentadas por los jerarcas de [Nombre01 091] en virtud de su condición de diputado y, más específicamente, por su papel en la comisión relacionada con la materia de telecomunicaciones, todo lo que sucedió mientras ocupaba ese cargo. Esto también permite marcar una diferencia sustancial como el supuesto analizado por la Sala Constitucional en la resolución N° 2001-11584 que cita el recurrente, ya que en esta lo que se ponderaba era la constitucionalidad de un proyecto de ley donde, ahí sí, se tipificaba penalmente la tenencia por parte del funcionario público de bienes de manera injustificada, entiéndase, sin dar razón de su origen. En esa oportunidad, la Sala Constitucional señaló:

“I.- De conformidad con lo que dispone el artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, se trata de la consulta facultativa, planteada por diez Diputados, por lo que esta Sala revisará únicamente los extremos cuestionados en forma concreta por los consultantes y no aspectos generales de constitucionalidad de la Ley que contiene la norma impugnada, según lo dispone el artículo 99 de la ley que rige esta jurisdicción. En ese sentido, se excluye del análisis de este tribunal el inciso c) del artículo 45 del proyecto consultado, por cuanto los consultantes no señalaron con claridad los motivos por los cuales se tienen dudas u objeciones sobre su constitucionalidad.

II.- Sobre el contenido de las normas cuestionadas. Las normas consultadas son las siguientes:

"Artículo 45.- Enriquecimiento ilícito.

Incurrirá en el delito de enriquecimiento ilícito y será sancionada con prisión de uno a ocho años, la persona a la que después de asumir un cargo público, o aquella que con facultades de uso, custodia, administración o explotación de fondos, servicios o bienes públicos, bajo cualquier título o modalidad de gestión, se le compruebe que:

a. Se encuentra en posesión de bienes o en el goce de derechos, por sí o por interpósita persona física o jurídica, cuyo valor sobrepase sus legítimas y normales posibilidades económicas, las de su cónyuge, compañero o compañera, hermanos y demás parientes hasta el tercer grado de consanguinidad o afinidad.

b. Ha cancelado deudas o extinguido obligaciones que afectaban su patrimonio, el de su cónyuge, compañero o compañera, hermanos y demás parientes hasta el tercer grado de consanguinidad o afinidad, en términos y condiciones que sobrepasen sus legítimas y normales posibilidades económicas y las de los parientes indicados.

c. Consienta, facilite o disimule como persona interpuesta, el enriquecimiento ilícito de otro, en los términos y alcances de los incisos anteriores" "Artículo 46.- Enriquecimiento ilícito de parientes Será reprimida con prisión de uno a ocho años, la persona a la que, siendo cónyuge, compañero o compañera, o pariente hasta el segundo grado de consanguinidad de un funcionario público, se le compruebe que ha aumentado su patrimonio, en los términos señalados en el artículo anterior" "Artículo 68.- Derogación del inciso 4) del artículo 346 del Código Penal Derógase el inciso 4) del artículo 346 del Código Penal" III.- Del principio de tipicidad de las normas penales. Se señala en la consulta, y sobre estas normas vierte su opinión este tribunal, que los artículos 45 incisos a) y b) y 46 del proyecto no tipifican de manera correcta la conducta que se pretende reprimir como delito. Para los consultantes la frase del inciso a) del artículo 45 "Se encuentra en posesión de bienes o en el goce de derechos" no se refiere a una acción sino a un estado. Asimismo, las frases "cuyo valor sobrepase sus legítimas y normales posibilidades" y "en términos y condiciones que sobrepasen sus legítimas y normales posibilidades económicas" dispuestas en ambos incisos contienen conceptos económicos indeterminados que impiden al juzgador partir de criterios objetivos y dificultan la comprensión de la norma. Estos defectos también se presentan en el artículo 46, al sancionar al cónyuge, compañero o compañera, o pariente hasta el segundo grado de consanguinidad de un funcionario público al que se le haya comprobado el aumento de su patrimonio mediante la aplicación, por parte del juez, de conceptos económicos indeterminados. La Sala ha hecho referencia al principio de tipicidad en materia penal en diversas ocasiones. En la sentencia de las dieciséis horas veinte minutos del quince de enero de mil novecientos noventa y uno, dijo:

"Los tipos penales deben estar estructurados básicamente como una proposición condicional, que consta de un presupuesto (descripción de la conducta) y una consecuencia pena, en la primera debe necesariamente indicarse, al menos, quien es el sujeto activo, pues en los delitos propios reúne determinadas condiciones (carácter de nacional, de empleado público, etc.) y cual es la acción constitutiva de la infracción (verbo activo), sin estos dos elementos básicos (existen otros accesorios que pueden o no estar presentes en la descripción típica del hecho) puede asegurarse que no existe tipo penal. De todo lo anterior puede concluirse en la existencia de una obligación legislativa, a efecto de que la tipicidad se constituya en verdadera garantía ciudadana, propia de un Estado democrático de derecho, de utilizar técnicas legislativas que permitan tipificar correctamente las conductas que pretende reprimir como delito, pues la eficacia absoluta del principio de reserva, que como se indicó se encuentra establecido en el artículo 39 de la Constitución, sólo se da en los casos en que se logra vincular la actividad del juez a la ley, y es claro que ello se encuentra a su vez enteramente relacionado con el mayor o menor grado de concreción y claridad que logre el legislador. La necesaria utilización del idioma y sus restricciones obliga a que en algunos casos no pueda lograrse el mismo nivel de precisión, no por ello puede estimarse que la descripción presente problemas constitucionales en relación con la tipicidad, el establecer el límite de generalización o concreción que exige el principio de legalidad, debe hacerse en cada caso particular." También en la sentencia número 3625-93 de las quince horas veintiún minutos del veintiocho de julio de mil novecientos noventa y tres, en relación con la tipicidad, expresó la Sala:

"La consulta en estudio involucra, como temas fundamentales, el principio de tipicidad y el de prejudicialidad en materia penal. En relación con el primero, es importante analizar previamente el principio de legalidad en sede penal. El principio de legalidad en general es el que define la investidura, competencia y atribuciones de las autoridades públicas y las circunscribe a un marco de constitucionalidad y legalidad, fuera del cual se convertirían en ilegítimas y arbitrarias. Este principio junto con el derecho general a la justicia, constituyen presupuestos esenciales del debido proceso, cuya ausencia o violación comporta transgresiones de orden constitucional. Dentro de sus más importantes corolarios se cuenta el principio de reserva de ley, que en materia penal, adquiere caracteres específicos por la necesaria definición previa y clara de las acciones que constituyen delito, con el objeto de salvaguardar la seguridad jurídica de los ciudadanos. El artículo 39 de la Constitución Política consagra, entre otros, este principio que en materia penal significa que la ley es la única fuente creadora de delitos y penas. Esta garantía se relaciona directamente con la tipicidad que es presupuesto esencial para tener como legítima la actividad represiva del Estado y a su vez determina que las conductas penalmente relevantes sean individualizadas como prohibidas por una norma o tipo penal. La tipicidad garantiza que ninguna acción humana pueda constituir delito, sino la define como tal una ley anterior que dicte el órgano competente." En el caso del artículo 45 incisos a), en lo que hace a la tipicidad, el tipo penal es defectuoso, pues el legislador no logró revestirlo de la concreción y claridad necesaria, según los lineamientos jurisprudenciales transcritos. No se describe cual es la acción constitutiva de la infracción, es decir, no se consigna el verbo. Los tipos penales son aquellas normas que están dirigidas a determinada persona y que formulan correspondientemente la conducta que se debe evitar. A través de ellas se protegen bienes jurídicos de relevancia para la sociedad y a la vez limitan los derechos fundamentales del sujeto activo, en la mayoría de los casos la libertad personal, por lo que deben construirse con gran rigidez. La frase "se encuentra en posesión de bienes" no describe el accionar del sujeto al que ésta destinada la conducta que se reprime, lo que difiere o traslada al juzgador la tarea de configurar qué acciones son punibles, lo que en realidad corresponde al legislador. Ahora bien, tanto en el inciso a) como en el b) del citado artículo, se dice que contiene conceptos indeterminados y por consiguiente producen una lesión en la garantía de tipicidad. La frase "en términos y condiciones que sobrepasen sus legítimas y normales posibilidades económicas" por su indefinición e imprecisión técnica deja abierta la posibilidad que de esos "términos y condiciones" sean suplidos por el juzgador, Nombre02 como las palabras "legítimas y normales posibilidades económicas", porque no es suficiente reprochar al sujeto activo el acrecimiento patrimonial sino guarda una relación con el quehacer del funcionario público. También en el caso del artículo 46 se produce una infracción al principio de tipicidad, pues se pretende penalizar al pariente del funcionario público por el solo hecho de aumentar su patrimonio sin que se describa ningún accionar para conseguir aquel resultado y con el mismo grado de imprecisión de los incisos a) y b) del artículo 45 porque remite a éstos. Los defectos apuntados en la redacción de los artículos consultados inciden en la garantía que implica el principio constitucional de tipicidad en materia penal.

IV.- Del principio de inocencia. Los consultantes también consideran que exista una violación al principio de inocencia, en su modalidad de la carga de la prueba, según la cual corresponde al Ministerio Público demostrar los hechos que se le atribuyen al imputado. Los diputados que hacen la consulta fundamentan el juicio de inconstitucionalidad en el hecho de que los artículos 45 y 46 del proyecto obligan al acusado a tener que demostrar de oficio la fuente de su riqueza para comprobar su inocencia. Sobre el tema ha señalado la Sala ya en diversas ocasiones:

"E) EL PRINCIPIO DE INOCENCIA: Al igual que los anteriores, se deriva del artículo 39 de la Constitución, en cuanto éste requiere la necesaria demostración de culpabilidad. Ninguna persona puede ser considerada ni tratada como culpable mientras no haya en su contra una sentencia conclusiva firme, dictada en un proceso regular y legal que lo declare como tal después de haberse destruido o superado aquella presunción.

Además en virtud del estado de inocencia del reo, no es él quien debe probar su falta de culpabilidad, sino los órganos de la acusación..." (Sentencia número 1739-92 de las 11:45 horas del 1° de julio de 1992) En otra resolución, estableció:

"Estima la Sala que el principio de inocencia protegido por el artículo 39 de la Constitución exige la plena demostración de culpabilidad del acusado, más allá de toda duda razonable. En consecuencia, si se ha dictado sentencia en contra del recurrente sin haber llegado a este estado de convicción, la sentencia habría violado su derecho al debido proceso en su elemento sustancial..." (Sentencia número 4700-93 de las 15:51 horas del 28 de setiembre de 1993. En el mismo sentido, sentencia número 4784-93 de las 8:36 horas del 30 de setiembre de 1993).

En iguales términos, expone la sentencia número 6660-93 de las 9:33 horas del 17 de diciembre de 1993:

"Tomándose en cuenta, además, el principio de inocencia (ninguna persona puede ser considerada ni tratada como culpable mientras no haya en su contra una sentencia conclusiva firme, dictada en un proceso regular y legal que lo declare como tal), del cual podemos extraer el principio de la carga de la prueba que rige nuestra materia penal, según el cual, le corresponde al Ministerio Público (como órgano que ostenta el monopolio de la acción penal), el demostrar fehacientemente en el proceso, los hechos que le atribuye al imputado, excluyéndose entonces en virtud del estado de inocencia del reo, el deber del imputado de probar su falta de culpabilidad, se puede afirmar que si se comprueba que alguno de estos aspectos ha sido obviado por el órgano jurisdiccional correspondiente, podría entonces existir violación al principio del debido proceso y derecho de defensa." De lo anterior puede concluirse que la demostración de culpabilidad, mediante la carga de la prueba, es tarea exclusiva del Ministerio Público y por ende, es obligación del legislador utilizar técnicas que permitan al órgano acusador cumplir con esa garantía constitucional. En el proyecto en consulta, aunque el legislador insertó frases como "se le compruebe que", la falta de una correcta tipificación en el delito que se pretende reprimir, hace que la presunción de inocencia se revierta y por el solo hecho de que el sujeto activo se mantenga en la posesión de bienes o aumente su patrimonio se le castigará, sin demostrarse que este aumento de su patrimonio tenga un nexo con la actividad ilícita del funcionario público, lo que en consecuencia obliga al acusado a demostrar el origen de sus bienes, violando con ello de modo flagrante, el principio de inocencia.

V.- Derogatoria tácita del artículo 346 del Código Penal. Finalmente, se consulta el artículo 68 del proyecto de ley, en razón de que dicho numeral introduce una confusión relacionada con el principio de seguridad jurídica. La norma da por sentado la vigencia de los incisos que no deroga, no obstante que con la promulgación de la Ley No.6872 de 17 de junio de 1983 "Ley de Enriquecimiento Ilícito de los Servidores Públicos", el legislador ya había dispuesto la derogatoria en el artículo 32 de esa ley. Para los consultantes se quebrantan los principios que rigen la vigencia y derogatoria de las leyes consagrado en el numeral 129 de la Constitución Política. Ciertamente, las disposiciones que se opongan a la Ley número 6872 de 17 de junio de 1983 quedaban derogadas conforme lo dispuesto en su artículo 32, pero la constatación de cuáles disposiciones afectaba y si en ellas se incluía el inciso 4) del artículo 346, ahora derogado por el artículo 68 del proyecto consultado, no es una cuestión de constitucionalidad de la cual deba verter su opinión este tribunal.

Por tanto:

Se evacua la consulta legislativa facultativa sobre el proyecto de "Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública", expediente legislativo número 13.715 en el sentido de que son inconstitucionales los artículos 45 incisos a) y b) y 46. Es inadmisible la consulta en cuanto al inciso c) del artículo 45 y en lo que se refiere a los efectos o posibles interpretaciones de la derogatoria del inciso 4) del artículo 346 del Código Penal, contenida en el artículo 68 del proyecto.” (Sala Constitucional, resolución N° 2001-11584 de las 8:53 horas del 9 de noviembre de 2001). Como se observa, mientras que en el proyecto de ley examinado por la Sala Constitucional lo que se pretendía tipificar era el incremento patrimonial sin causa, obligando Nombre02 al funcionario público a demostrar el origen lícito de sus bienes pues, de lo contrario, perdería su patrimonio, en el artículo 346 inciso 3) del Código Penal aplicado se prevé una conducta más concreta, a saber, el admitir una dádiva que no le fue presentada por azar o casualidad, sino que le fue dada con ocasión del cargo que desempeña y durante el ejercicio de este . Se trata de una conducta que ciertamente, vulnera el bien jurídico protegido, lo anterior en tanto el funcionario público, que debería actuar al margen de cualquier interés económico, o a lo sumo al margen de cualquier interés que sea distinto a los que de la propia institución en la que se desempeña y por los cuales debe velar, Nombre11 dentro de lo dispuesto en la legislación, emplea su condición para obtener un lucro personal. Por todo lo expuesto, se rechaza el motivo.

XXXVII.- Décimo tercer motivo. Se aplican indebidamente las normas relativas al comiso del artículo 110 del Código Penal al ordenar que pase al Estado el certificado número 62445223, renovado en el 62736757, sin fundamento ni razonamiento algunos, infringiendo además los artículos 142, 184 y 369 inciso e) del C.P.P. Al ordenar el comiso, se incluye en el punto 9 un certificado de depósito a plazo con el número 62736757, que ni se describe ni se indica su naturaleza y razón. El tribunal indica que 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. Luego, se dispone este, sin fundamentar si cada uno de los bienes “… son medios o instrumentos con los que se cometió el delito, efectos del mismo o ganancias derivadas de su comisión ni el porqué ello sea así...” (F. 172.765 frente). En cuanto al comiso del certificado, no se indican las razones de esta decisión, lo que hace que el fallo sea nulo, por infundado. No se explica si es un instrumento del delito, un efecto o ganancia derivada de él, por lo que es imposible conocer las motivaciones del tribunal. Ante este panorama, lo propio es anular la decisión de las juezas de mayoría y resolver que ese comiso es improcedente, ordenando la devolución de la suma correspondiente a su legítimo propietario.

XXXVIII.- Aunque por razones distintas, el alegato se declara con lugar: Antes de examinar el caso particular, es importante hacer unas consideraciones generales en relación con el artículo 110 del Código Penal. Según esta norma, el comiso produce la pérdida a favor del Estado de los instrumentos con que se cometió el delito, de las cosas o los valores provenientes de su realización, o que constituyan para el agente un provecho derivado del mismo delito. Hablamos de un comiso que, al igual que sucede en otros ordenamientos jurídicos como el alemán o el español, se proyecta sobre tres categorías de bienes, a saber, los instrumentos, los efectos y las ganancias del delito. Los instrumentos son en pocas palabras, “…los útiles o medios empleados para la ejecución del acto criminal” (Nombre98, Josep Miquel; Nombre99. “Título VI. De las consecuencias accesorias.” En: Nombre100 (Dir.); Nombre12 (Coord.). Comentarios al Nuevo Código Penal. Navarra, Editorial ARANZADI, S.A., 3° edición, 2004, p. 649). Hablamos por ejemplo, de “… los útiles para cometer el robo o la falsificación, las armas empleadas en el atraco, el capital con que se monta el negocio del narcotráfico, el vehículo de motor usado para el contrabando o para trasladar a la víctima que después será violada…” (Nombre101. “Notas sobre el comiso y la propiedad de terceros.” En: Actualidad Penal. Revista semanal técnico-jurídica de Derecho penal. Madrid, La Ley-Actualidad S.Nombre13., N° 24, semana del 9 al 15 de junio de 1997, p. 523). Tratándose de los vocablos cosas o valores hay que hacer mayores precisiones. La cosa, que procede del latín causa, según el Diccionario de la Lengua Española es todo lo que tiene entidad, ya sea corporal o espiritual, natural o artificial, real o abstracta. Aunque también se le define como objeto material en oposición a los derechos creados sobre él y a las prestaciones personales, no menos cierto es que se le considera sinónimo del término bien y este es entendido como cosas materiales o inmateriales en cuanto objetos de derecho. Dicho en otras palabras, con el término cosas el legislador costarricense no alude únicamente a las cosas corpóreas, sino también a las inmateriales. El valor por su parte, alude a la cualidad de las cosas, en virtud de la cual se da por poseerlas cierta suma de dinero o equivalente, o a la cualidad que poseen algunas realidades, consideradas bienes, por lo cual son estimables. Nombre02 pues, entendemos por valor cualquier bien estimable económicamente. El artículo 110 del Código Penal prevé el comiso de las cosas o valores provenientes de la realización del delito. Con esta expresión alude a lo que en doctrina se conoce como los producta sceleris en sentido estricto, o sea, los bienes producidos, transformados o manipulados desde la propia conducta constitutiva de la infracción, v.g., el documento o el dinero falsificado, o la droga cuando resulta de la propia mecánica comisiva (así, Nombre101, “Notas sobre el comiso y la propiedad de terceros.”, op. cit., p. 524; Nombre101. "Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal." En: Documentación Jurídica. Monográfico dedicado a la propuesta de anteproyecto del Nuevo Código Penal. Madrid, Gabinete de Documentación y Publicaciones, Secretaría General Técnica, Ministerio de Justicia, Volumen 1, Enero/Diciembre, 37/40, 1983, p. 246 y Nombre102 (Coord.); Nombre14, Nombre103; Nombre15, Nombre16. Las consecuencias jurídicas del delito en el nuevo Código Penal español. El sistema de penas, medidas de seguridad, consecuencias accesorias y responsabilidad civil derivada del delito. Valencia, Tirant lo Blanch, 1996, pp. 450-451). Finalmente, el legislador costarricense contempló también el comiso del provecho del delito. Este vocablo, procedente del latín profectus, es definido por la Real Academia Española como el beneficio o utilidad que se consigue o se origina de algo o por algún medio. El beneficio del cual es sinónimo, es definido a su vez como la ganancia económica que se obtiene de un negocio, inversión u otra actividad mercantil. Igualmente, la utilidad es el provecho, conveniencia, interés o fruto que se saca de algo. En resumen, cuando se habla del provecho, se trata de las ganancias derivadas del delito. Otro extremo a considerar es el presupuesto del comiso. Según la regla general prevista en el artículo 110, el comiso está vinculado con el delito . El comiso es una consecuencia de este y no, por ejemplo, de la comisión de un hecho que aunque típico, no cumpla con otros requisitos, como la antijuricidad o la culpabilidad. El delito, desde una dimensión técnica, debe entenderse como la conducta típica, antijurídica y culpable y no como una simple previsión legislativa independiente de una declaración de responsabilidad en un caso concreto, pues Nombre02 se desprende del art. 103 del Código Penal que en lo que interesa, indica que el comiso tiene como presupuesto un hecho punible y que se impondrá en la sentencia condenatoria. No desconoce esta cámara que algunos tribunales han aplicado este instituto jurídico en otras circunstancias, por ejemplo, cuando a pesar de dictarse un sobreseimiento definitivo por extinción de la acción penal tras el pago de la multa, los bienes son peligrosos intrínsecamente. En ese sentido se expresa la sentencia N° 629-2000, dictada por el Tribunal de Casación Penal de San José, a las 12:00 horas del 14 de agosto. En esta también se indicó que el comiso puede proceder tras el dictado de la sentencia absolutoria: “Es lógico entenderlo Nombre02 por cuanto el comiso se decreta como resultas de una sentencia, sea ésta condenatoria o absolutoria, y, entre esta última, por analogía, el sobreseimiento, que en el fondo cumple con los mismos efectos procesales. En ese mismo sentido el artículo 465 CPP determina que “cuando en la sentencia se ordene el comiso de algún objeto, el tribunal le dará el destino que corresponda según su naturaleza, conforme a las normas que rigen la materia”. Habrá casos muy relevantes en que no obstante la exculpación del acusado sea necesario decretar el comiso. Por ejemplo la destrucción de droga, material explosivo o sustancias venenosas. En estos casos está en juego la salvaguarda de intereses públicos de trascendencia (la salud pública o la seguridad común). Es obvio entender se trata de medidas a imponer con cautela y prudencia, no sea que innecesariamente se lesionen intereses del imputado, no obstante su absolutoria. Desde esa óptica debe advertirse la situación en cada caso concreto, y si, conforme a lo dispuesto en la ley, es de proceder decretar el comiso de bienes.”. El anterior argumento, además de no corresponderse con lo expuesto en el art. 110 del Código Penal (pues alude al “delito” como presupuesto de la incautación), solo se puede invocar para el comiso de los efectos e instrumentos, no Nombre02 para el comiso de las ganancias, ya que en tanto que el fundamento del primero es el peligro asociado al bien y lo que se pretende con el instituto jurídico es asegurar a la colectividad frente a ese peligro [así Nombre101, "Las penas patrimoniales en la propuesta de anteproyecto del Nuevo Código Penal.", op. cit. , p. 246 y Nombre104. “El comiso en materia de tráfico de drogas: visión comparada de las regulaciones española y chilena”. En: Anuario da Facultade de Dereito da Universidade da Coruña (Revista jurídica interdisciplinar internacional). Universidade da Coruña, Servicio de Publicacións, N° 10, 2006, p. 853], tratándose de las ganancias la situación es otra. El comiso de estas se explica únicamente por la necesidad de suprimir un enriquecimiento patrimonial que ha sido obtenido de manera irregular (Nombre105. “El comiso de las ganancias provenientes del delito y el de otros bienes equivalentes a éstas.” En: Revista Penal, N° 19, 2007, p. 166. Artículo disponible en línea: http://www.uhu.es/revistapenal/index.php/penal/article/view/312/303). La incautación de las ganancias no se puede justificar con el argumento de su peligrosidad, ya que a diferencia de lo que sucede con otros bienes (p.ej., ciertas armas de fuego o explosivos), el dinero no es un bien peligroso intrínsecamente. Del mismo modo, su comiso tampoco se puede basar en la probabilidad de que esas ganancias sean empleadas en la comisión de nuevas infracciones, lo anterior porque esto nos conduciría a negar la aplicación del instituto cuando ese riesgo no existe, permitiendo que el autor del hecho, o sus allegados, disfruten los beneficios obtenidos irregularmente. El comiso de las ganancias, por tanto, se basa en la necesidad de suprimir un enriquecimiento que tiene su origen en un hecho que al menos en principio, es de interés para el ordenamiento jurídico penal y cuyas características son definidas por el legislador en cada país. Nombre02 por ejemplo, en Alemania, el comiso de los beneficios exige la comisión antijurídica del hecho tipificado, pero no su realización culpable (Nombre02, Nombre106, Nombre17; WEIGEND, Thomas. Tratado de Derecho Penal. Parte General. Traducción de OLMEDO CARDENETE, Miguel. Granada, Editorial Comares, S.L., 5° edición renovada y ampliada, 2002, p. 851). En el caso español, además de un comiso de las ganancias de carácter preceptivo y cuyo presupuesto es la pena impuesta por un delito (art. 127 del Código Penal español), recientemente -en julio de 2015- se incluyó una norma (el art. 127 ter) que prevé un comiso facultativo en casos donde no medie condena y se demuestre la situación patrimonial ilícita a través de un proceso contradictorio. Se trata de una posibilidad que solo puede considerarse en los siguientes supuestos: a) Que el sujeto haya fallecido o sufra una enfermedad crónica que impida su enjuiciamiento y exista el riesgo de que puedan prescribir los hechos, b) se encuentre en rebeldía y ello impida que los hechos puedan ser enjuiciados dentro de un plazo razonable, o c) no se le imponga pena por estar exento de responsabilidad criminal o por haberse esta extinguido. La comparación de nuestra regulación en materia de comiso con la de otros países nos permite concluir, sin ningún género de dudas, que contemplar el delito como único presupuesto de aplicación de este instituto jurídico es insuficiente. Si se trata de efectos e instrumentos, su comiso se debe condicionar a la peligrosidad intrínseca del bien y a la necesidad de proteger a la colectividad frente a su eventual uso. En el caso de las ganancias, el presupuesto del comiso debe ser la demostración de una conducta cuando menos típica y antijurídica y de la cual se haya obtenido un enriquecimiento irregular. Lo que no es posible, según estima esta cámara, es que sea el operador jurídico el que frente a una norma clara, acuda a una interpretación extensiva para dotar al artículo 110 citado de un contenido que no tiene, con miras a ordenar un comiso que no procede. Dicho esto, tenemos que en el caso particular, a folio 16.339 frente del tomo XXXIV, el tribunal de juicio ordenó el comiso del certificado de inversión N° 62445223 que fuera renovado en el certificado Nº 62736757 por el monto de ₡5.463.555,65 (cinco millones cuatrocientos sesenta y tres mil quinientos cincuenta y cinco colones sesenta y cinco céntimos), sin llegar a exponer razón alguna por la cual debe procederse de esa manera, es decir, sin explicar, sea en este acápite o en cualquier otra parte de la sentencia, cuál es la relación que tiene dicho certificado con el delito, concretamente, si se trata de un instrumento, un efecto o una ganancia derivada de él. Se trata de un error trascendental si se toman en cuenta dos cuestiones. La primera es que la conducta de [Nombre02 018], de admitir retribuciones económicas procedentes de [Nombre01 060] tras dejar el cargo de diputado, es atípica. Esas ventajas patrimoniales no pueden considerarse ganancias provenientes del delito y por ende, no son susceptibles de comiso. El segundo punto a considerar es que si bien el tribunal de mérito, en el acápite destinado a examinar la situación de [Nombre01 018] afirmó que el certificado Nº 62736757 está relacionado con el vehículo RAV 4 placa [Valor 052] que compró este imputado, de la prueba que cita para apoyar lo antes expuesto no se extrae esa conclusión. Veamos. Según la relación de hechos acusados y demostrados, el vehículo RAV 4 placa [] fue adquirido por [Nombre01 018] para su hija, [Nombre01 243], con dineros originados en [Nombre01 060] que le fueron trasladados en el año 2003 y que estaban en la cuenta bancaria de [Nombre02 215], sita en Panamá (así, cfr. auto de apertura a juicio, hechos imputados números 237 a 239, f. 10.484 a 10.485 frente, tomo XXIII y hechos probados números 224 a 228, antes transcritos). Con fundamento en las pruebas identificadas con los números 418 a 422, el tribunal de mérito indicó que en abril de 2004, [Nombre01 243] vendió el vehículo mencionado al señor [Nombre01 254] y que el 30 de abril de 2004, adquirió el vehículo Peugeot estilo Berlina placa [Valor 053] (f. 16.040 a 16.044, tomo XXXIII), siendo este “…entregado a la Procuraduría General de la República según se confirma en la prueba N° 764 ” (F. 16.044 frente). Ahora, revisada esa última por este Tribunal de Apelación de Sentencia Penal, prueba que es descrita en el fallo de mérito como “Oficio AEP-386-2010 de 18 de agosto de 2010 suscrito por Miguel Cortés Chaves de la Procuraduría de La Ética y La Función Pública mediante el que se solicita la liquidación del certificado de depósito a plazo Nº 62445223 y cupón de intereses 62445223-1, producto de la venta de vehículo entregado por [Nombre01 018] a La Procuraduría General de la República”, tenemos que en la misma tan solo se alude al certificado de depósito a plazo Nº 62445223 y al cupón de intereses 62445223-1, renovado en el certificado Nº 62736757 por el monto de ₡5.463.555,65, a Nombre01 de la Procuraduría General de la República. Nombre02 las cosas, contrario a lo que señala el a quo sin fundamento, al menos de la prueba N° 764 no se extrae la relación del certificado con los fondos obtenidos tras la venta del vehículo Peugeot placa [Valor ]. Ahora, no obstante lo anterior, ordenar el reenvío para discutir nuevamente el punto es innecesario, ya que si se admite lo expuesto por el fallo recurrido en cuanto al origen de los dineros que sustentan el certificado Nº 62736757 (y que es una renovación del Nº 62445223), extremo que además no fue objeto de impugnación alguna, la única conclusión a la que se puede arribar es que este bien no tienen un origen delictivo, ya que para el año 2003 [Nombre01 018] no ostentaba la condición de diputado y por esa razón, la admisión de la retribución económica empleada para comprar el vehículo RAV 4 es una conducta que aunque censurable en términos éticos, no es típica. Menos entonces podría hablarse de un injusto penal y menos todavía de la comisión de un delito como fuente de los recursos cuyo comiso se pretende. Finalmente y a mayor abundamiento, es importante acotar que la acusación formulada por el órgano requirente es absolutamente omisa en cuanto al vínculo entre el certificado Nº 62736757 con las ganancias originadas en [Nombre01 060], o al menos con el automotor que, según el a quo, se adquirió usando esas ganancias, cuestión que era indispensable para garantizar la discusión sobre los presupuestos fácticos que autorizan la imposición del comiso. Tan claro es el tema que fue el tribunal de mérito el que, quebrantando el principio de correlación entre acusación y sentencia y sin la debida fundamentación -según ya se indicó-, procedió a incorporar en la sentencia la información que se echa de menos, con el propósito de explicar cómo parte de la ganancia obtenida por [Nombre01 018] sufrió múltiples transformaciones hasta convertirse en el certificado de inversión Nº 62736757, cuyo comiso ordenó. En síntesis, entendemos que en el caso particular el comiso del certificado no es procedente, no solo porque la decisión fue adoptada sin una adecuada fundamentación, sino porque en cualquier caso, partiendo de los hechos demostrados por el a quo y que no fueron objeto de recurso -algunos además, no descritos en la acusación, quebrantándose Nombre02 el principio de correlación entre acusación y sentencia-, los fondos que sustentan el certificado no se originaron en un delito, sino un hecho atípico. Por lo anterior, se declara con lugar el reclamo. Se anula la sentencia únicamente en cuanto dispuso el comiso del certificado de inversión N° 62445223 que fuera renovado en el certificado Nº 62736757, ordenándose su devolución a quien demuestre ser su legítimo propietario.

XXXIX.- Recurso de casación interpuesto por el licenciado Mario Navarro Arias, defensor particular de [Nombre01 028]. Tal y como se explicó en considerandos anteriores, tras acoger algunos motivos de los recursos formulados por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores particulares de [Nombre01 041] y por el imputado [Nombre01 033] a título personal, se declaró ilícito el criterio de oportunidad otorgado a [Nombre01 064] y en consecuencia, la declaración que este rindió en el debate. En razón de lo dispuesto en el artículo 443 del Código Procesal Penal sobre los efectos extensivos del recurso, se procedió a examinar para todos los imputados las consecuencias de esa decisión, siendo que en el caso de [Nombre01 028], se dispuso anular la sentencia en cuanto lo declaró autor responsable de tres delitos de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio en concurso material, en relación con [Nombre01 022], [Nombre01 001] y [Nombre01 064] y en su lugar, se le absolvió de toda pena y responsabilidad por los delitos referidos. Asimismo, por lo antes decidido se consideró innecesario resolver los reclamos planteados por su defensor, el licenciado Mario Navarro Arias, con excepción de aquel que el recurrente denominó como tercer motivo por la forma y que se conocerá a continuación. Tercer motivo por la forma. Errónea e inadecuada fundamentación. Violación al debido proceso y al derecho de defensa por errónea aplicación del artículo 110 del Código Penal. El fundamento jurídico del presente motivo se encuentra en los artículos 39 de la Constitución Política, 110 del Código Penal, 1, 2, 12, 142, 178, 363 inciso b), 369 incisos d) y j), 458, 459 y 460 del Código Procesal Penal. El recurrente señala que el tribunal, en el apartado XVII de la sentencia, dispuso el comiso entre otros, de los siguientes bienes: 1) Partido de Heredia inscrita bajo el sistema de folio real, matrícula ° [Valor 006], submatrícula a Nombre01 de la sociedad [Nombre 053]. Sociedad perteneciente al imputado [Nombre02 028] “…quien procedió a nutrirla con los dineros ilícitos provenientes de [Nombre01 060] , siendo que con esos dineros realizó diversas transacciones bancarias y negocios diferente índole, como la compra de la finca descrita.”. 2) Acciones de [Nombre01 028] en la sociedad [Nombre 057]. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula N° [Valor 007], Submatrícula 000 y Matrícula N° [Valor 009], Submatrícula 000, bienes inmuebles “… que fueron adquiridos con dineros ilícitos que provenían de [Nombre01 060].”. Para el defensor particular, el a quo quebrantó lo dicho en el artículo 110 del Código Penal, al no fundamentar la decisión de comisar los bienes antes dichos: “No basta con que se disponga "la pérdida a favor del Estado de…”, sino que debe no solo demostrarse en juicio el nexo causal existente entre la comisión del ilícito y los bienes sobre los que recae el comiso, y que estos constituyen un provecho derivado del mismo delito; sino que además debe el Tribunal demostrar que ni el imputado ni un tercero tienen derechos sobre esos bienes...” (F. 17.174 frente). Además, el informe pericial N° 202-DEF-445-05/06 (Prueba N° 619), en el punto 4.4, indica que la sociedad [Nombre 053] fue constituida el 08 de abril de 2002, por el imputado [Nombre01 028] y [Nombre01 257], ante el Notario Oki Emilio Rojas Chacón. 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 [Nombre01 028] suscribió 99 acciones y la socia [Nombre01 257] una acción. Según certificación notarial de las 14:00 horas del 27 de enero de 2003, [Nombre01 028] ocupa el cargo de presidente con la representación judicial y extrajudicial de la sociedad [Nombre 053]., sociedad que se encuentra inscrita en la Sección Mercantil del Registro Público, al folio 196 del tomo 1497, asiento 98 (así, anexo 13 del informe 202, folio 170). En el punto 4.3.1 del mismo informe, se indica que la Sociedad [Nombre 057], cédula jurídica CED07° [Valor CED08], fue constituida el 5 de mayo de 2003 por [Nombre 264] e [Nombre02 266], ante la notaría de Oki Emilio Rojas Chacón. El capital social se estableció en la suma de ¢50.000.000.00 (cincuenta millones de colones), representado por 50.000 acciones de mil colones cada una, de las cuales el señor [Nombre01 264] suscribió 49.999 acciones de mil colones cada una, e [Nombre01 266] una acción de mil colones. Por ende, de la misma prueba se desprende que los bienes comisados se encuentran debidamente inscritos a Nombre01 de sociedades anónimas en las cuales, aparte de [Nombre01 028], existen otros socios. 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 la resolución Nº 865-97. Como apoyo de su gestión, también menciona la resolución Nº 00377-2010, del Tribunal de Casación Penal de Cartago, según la cual se debe demostrar el nexo causal existente entre los bienes sobre los que recae el comiso y la comisión del ilícito. Agrega que todavía más claro es el fallo Nº 00121-2010 de la Sala Tercera, el cual transcribe, resaltando de dicho texto la referencia que existe en cuanto a la necesidad de que dicha decisión esté debidamente fundamentada. Agrega que en el caso en examen, el fallo omitió fundamentar el comiso. No hay una sola razón para concluir que debía procederse a su dictado, en perjuicio de los intereses tanto de [Nombre01 028], como de terceras personas ajenas al proceso. Añade que el tribunal tampoco se refirió al origen de los dineros con los cuales fueron adquiridas las propiedades sobre las que recae el comiso. No hay indicios que sugieran al menos como probable, menos con certeza, que fuesen los procedentes de [Nombre01 091] y utilizados por parte de [Nombre01 041] y [Nombre01 078] para el pago de las dádivas que aquí se investigan. Según el quejoso, su origen pudo ser cualquier otro. Reitera que desde el año 1997 había una relación jurídica entre [Nombre01 060] y [Nombre01 058], donde se ejecutaban actos legítimos, auténticos y fundados en convenios reales de consultoría. Los dictámenes periciales, continúa el impugnante, aun y cuando hacen un desglose de los montos por fechas, no logran precisar si tales sumas recibidas pueden ligarse con los contratos de consultoría o con servicios ajenos a estas. Se añade en el recurso: “… Los dineros que ingresaron a la cuenta de mi representado, de acuerdo a la información bancaria que consta en autos, se dio muchísimo tiempo después de que se consumara el delito acusado, por lo que dada la relación comercial de vieja data, resulta de muy alta probabilidad, que los dineros que se cuestionan tuvieran su origen en cualquiera de los actos comerciales surgidos con anterioridad. En razón de ello, resulta ser absolutamente necesario que el Tribunal demuestre más allá de toda duda, que la totalidad de los dineros que ingresaron a las cuentas bancarias de mi representado, son en primer lugar provenientes de un delito y, en segundo término, que ese delito del cual provino ese dinero, sea precisamente el que aquí se investiga, a fin de no afectar los derechos de todas aquellas personas que no tienen ninguna relación con el ilícito, ni 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., …”. (F. 17.182 frente). Cuestiona el por qué, si se comisan los bienes de [Nombre 058], no se tomó idéntica decisión con los dineros que recibió el Bufete Valerio Casafont, por concepto de honorarios, de la cuenta de [Nombre 058]. Cita, en apoyo de esta afirmación, los testimonios de Nombre107 y de [Nombre01 111], en el sentido de que los fondos provenían de las cuentas bancarias de aquella empresa. Como el fallo no está fundamentado, se desconoce por qué se actuó de manera diversa tratándose de los bienes del bufete mencionado. La única fundamentación que hay al respecto es una transcripción del artículo 110 del Código Penal, siendo que no hay ningún análisis de las cuantiosas sumas de dinero que también fueron pagadas de las cuentas de [Nombre 058]. a otras empresas: “Es claro, porque Nombre02 lo determinó el fallo, que [Nombre01 028] fue sancionado por entregar a funcionarios públicos dinero en calidad de pago de dádivas. Tres delitos de cohecho impropio agravado en su modalidad de penalidad del corruptor. El instrumento que se utilizó para la comisión del delito, atendiendo a la calificación jurídica, fue el dinero que se le entregó a los coacusados. Es claro, porque Nombre02 lo tuvo por acreditado el fallo, que los dineros que sirvieron a esa finalidad fueron FONDOS PRIVADOS, provenientes de [Nombre01 091] Y RECIBIDOS EN LA CUENTA NO DE [Nombre 028], SINO DE [Nombre01 058]. Es claro y evidente que esa cuenta manejó más de catorce millones de dólares y que conforme al PERITAJE AMPLIACIÓN NÚMERO 202 que exploró el movimiento de la cuenta del cuenta correntista, las sumas entregadas a las sociedades o personas involucradas no superaron el cincuenta por ciento. Como se indicó supra, se pagaron sumas cuantiosas a Bufete Valerio Casafont, A LAS SOCIEDADES MACRO INVESTMENT Y TELEINVEST SOCIEDAD ANÓNIMA, A ESTOS ÚLTIMOS UNA SUMA SUPERIOR AL MILLÓN CIEN MIL DÓLARES. Los peritos del Organismo de Investigación Judicial nunca efectuaron un estudio sobre quiénes eran esos destinatarios, pese a que las sumas fueron cuantiosas. Es más, EL TRIBUNAL SENTENCIADOR NI SIQUIERA SE TOMÓ LA MOLESTIA DE ANALIZAR LOS DESTINATARIOS DE LAS SUMAS DE DINERO MÁS ALLÁ DE LOS INVOLUCRADOS EN ESTOS HECHOS. Dejando de lado un porcentaje elevadísimo de dinero distribuido por la sociedad SNQC. No decreta el comiso del dinero pagado a Nombre108, al estimar que fue un dinero recibido de forma lícita, desnaturalizando toda su argumentación en torno al manejo de dineros por parte de la sociedad SNQC ...” (f. 17.184 y 17.185 frente). Tras citar 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 Nombre12 y sus anexos, que 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), el recurrente afirma que con estos elementos se comprueba el origen y destino del dinero de [Nombre01 060] que fue entregado por [Nombre01 028] a favor de los encartados en la causa, pero el tribunal no se tomó el cuidado de analizar esta prueba. Obviando que se trataba de dineros privados manejados por la sociedad [Nombre 058]., decretó el comiso de dos bienes, concretamente del PORCENTAJE EN UNA SOCIEDAD DENOMINADA [Nombre01 057] y una vivienda perteneciente a [Nombre01 053]., adquirida con dineros que no tienen que ver con EL OBJETO DEL DELITO COHECHO IMPROPIO. Añade el recurrente: “… El punto en discusión es ese y resulta importante su análisis. Si SNQC MANEJO DINEROS PRIVADOS, Y DE ESOS DINEROS SE ENTREGARON SUMA A INVOLUCRADOS EN ESTOS HECHOS, ESO NO LO DISCUTIMOS; ADMITIENDO COMO DEBE HACERSE EN RESPETO A LOS HECHOS, el instrumento del delito FUE LA DADIVA, y el provecho de esa DADIVA FUE LA APROBACION DE LA LICITACION A FAVOR DE [Nombre 091], de forma tal que asumiendo que con dineros de [Nombre01 091] SE ADQUIRIERON BIENES por porte de DOS SOCIEDADES ANONIMAS PRIVADAS, no puede ser objeto de comiso esos bienes si no tienen relación con el tipo penal atribuido a mi representado …” (F. 17.186 frente, tomo XXXVI). En razón de lo expuesto, solicita se declare con lugar el presente motivo y se disponga, primero, la revocatoria del comiso o, en subsidio, se ordene el reenvío para que, con una nueva integración y conforme a las reglas establecidas en el artículo 359 del Código Procesal Penal, el tribunal determine y fundamente si procede o no el comiso ordenado.

XXXX.- Aunque por razones distintas, el motivo se acoge. En el acápite XVII de la sentencia, concretamente de folios 16.337 frente a 16.341 frente, tomo XXXIV, se dispuso el comiso de los siguientes bienes: “A.4) Partido de Heredia inscrita bajo el sistema de Folio Real, Matrícula Nº [Valor 006], Submatrícula a Nombre01 de la sociedad [Nombre 053]. Sociedad perteneciente al imputado [Nombre01 028] quien procedió a nutrirla con los dineros ilícitos provenientes de [Nombre01 060], siendo que con esos dineros realizó diversas transacciones bancaria y negocios diferente índole ( sic), como la compra de la finca descrita…4) De las acciones de [Nombre01 028] en la sociedad [Nombre 057]. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula Nº [Valor 007] , Submatrícula 000 y Matrícula Nº [Valor 009] , Submatrícula . Bienes inmuebles que fueron adquiridos con dineros ilícitos que provenían de [Nombre01 060] .”. Como se observa, el tribunal de mérito indicó que la finca del partido de Heredia inscrita bajo el sistema de folio real, matrícula Nº [Valor 006] , submatrícula 000, a Nombre01 de la sociedad [Nombre 053]. fue adquirida con los dineros procedentes de [Nombre01 060]. Lo mismo se afirmó de los inmuebles inscritos a Nombre01 de la sociedad [Nombre 057]., disponiéndose el comiso de las acciones de [Nombre01 028] en la citada sociedad. Frente al planteamiento del a quo, en el cual los bienes decomisados son ganancias derivadas del delito de penalidad del corruptor en su modalidad de corrupción agravada por cohecho impropio, esta cámara concluyó, considerandos atrás, que la conducta de [Nombre01 028] (la que se pudo demostrar) es atípica y en consecuencia, se le absolvió de toda pena y responsabilidad. En estas nuevas circunstancias y como ya se indicó al examinar el comiso del certificado de inversión Nº 62736757 (así, considerando XXXIX.- de esta resolución), el comiso resulta absolutamente improcedente, ya que si no hay acción típica, menos habrá injusto penal y menos un delito que pueda reputarse como origen de los fondos empleados para adquirir los bienes cuyo comiso se ordenó en la sentencia recurrida, siendo este último el presupuesto contemplado por el artículo 110 del Código Penal. Por esa razón, se declara con lugar el reclamo. Se anula la sentencia en cuanto ordenó el comiso de la finca del partido de Heredia inscrita bajo el sistema de folio real matrícula Nº [Valor 006], submatrícula a Nombre01 de la sociedad [Nombre 053]. y de las acciones de [Nombre 028] en la sociedad [Nombre02 057]. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de folio real matrícula Nº [Valor 007], submatrícula 000 y matrícula Nº [Valor 009], submatrícula . Se ordena la inmediata devolución de los bienes antes referidos a quien demuestre ser su legítimo propietario.

XXXXI. - Recursos de casación y de apelación de sentencia planteados por el licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre02 077] en su condición de presidente de la sociedad [Nombre 061] . El licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre01 077] en su condición de presidente con facultades generalísimas sin límite de suma de la sociedad [Nombre02 061].), formuló recurso de casación (f. 17.649 a 17.674 del tomo XXXVII; Nombre02 como recurso de apelación de sentencia (cfr. f. 172.273 a 172.291 del tomo XXXIX), contra la sentencia Nº 167-2011, citada atrás. En ambos, tras referirse a la necesidad de garantizar un examen integral de lo resuelto, alude a su legitimación para recurrir, explicando que tanto la doctrina como la jurisprudencia de la Sala Tercera (resoluciones Nº 138-91; 1080-98; 583-2003; 712-2006 y 125-2010), Nombre02 como de la Sala Constitucional (resoluciones Nº 5447-95, 4121-96 y 5464-96), reconocen el derecho a presentar recurso a cualquiera que no habiendo sido parte en el proceso, fue afectado por la resolución impugnada. Habla, en concreto, del derecho a impugnar reconocido al tercero que resulta perjudicado con el comiso de un bien de su propiedad, como sucedió en este caso. Siendo que el contenido de ambas impugnaciones (casación y apelación de sentencia) es esencialmente el mismo, esta cámara realizará una sola descripción de lo reclamado. “Motivo único del recurso. Violación al debido proceso por infracción al derecho de defensa por haberse ordenado el comiso de un bien inmueble perteneciente a una sociedad anónima” (f. 172.279, tomo XXXIX). Como normativa quebrantada, el impugnante cita 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. Como normas erróneamente aplicadas, menciona los numerales 103 y 110 del Código Penal. Según él, se vulneró el derecho al debido proceso, al no garantizarse el derecho de defensa y audiencia a la sociedad propietaria del bien inmueble cuyo comiso se ordenó. Tras citar doctrina y algunos pronunciamientos de la Corte Interamericana de Derechos Humanos sobre el debido proceso, de la Sala Constitucional y la Sala Tercera sobre el tema y en particular, sobre el derecho de defensa y audiencia (de la Sala Constitucional, resoluciones Nº 5447-95; 4121-96 y 5464-96; de la Sala Tercera, votos Nº 74-98; 1080-98; 583-2003; 1273-2005; 712-2006; 96-2009; 125-2010 y 163-2010), el licenciado Vargas Vargas afirma que el comiso del inmueble [Valor 003], perteneciente a la sociedad denominada [Nombre01 061]., cédula jurídica número [Valor CED09], se ordenó sin darle a esta participación en el proceso. Para el recurrente, la fundamentación dada al comiso no es válido “… por constituir 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” (folio 172.288, tomo XXXIX). Reitera que el tribunal ordenó el comiso del inmueble sin dar oportunidad de defensa a la sociedad propietaria, ocasionándole un gravamen irreparable. Añade que en casos como el presente, la Sala Tercera ha dispuesto la nulidad parcial de lo resuelto y ha ordenado el reenvío para una nueva sustanciación del punto, posición que él no comparte, porque: 1.- Se daría una ventaja indebida a los actores civiles, que no accionaron en tiempo y forma debida contra la sociedad anónima: “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” (Folio 172.289). 2.- “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 Nombre02 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” (Folios 172.289 y 172.290). Por ello, entiende contrario a la lógica y a la economía procesal ordenar la reposición parcial del juicio, siendo la única solución remitir a los interesados “a la vía que corresponda”, si a bien lo tienen. En cuanto a la pretensión del recurso, solicita declararlo con lugar, anular la sentencia en cuanto ordenó el comiso de la finca registrada bajo la secuencia número [Valor 003], del Partido de Guanacaste, que pertenece a la sociedad [Nombre01 061].) y, por ser la única solución acorde con el defecto acusado, remitir a las partes a la vía que corresponda, si a bien lo tienen. Finalmente, se debe indicar que el recurrente ofreció prueba en esta etapa procesal, admitiéndose el poder especial judicial de [Nombre01 077] al licenciado Juan Luis Vargas Vargas; la copia de la personería jurídica de la sociedad [Nombre01 061]. y una certificación registral donde consta que esta persona jurídica es propietaria del inmueble objeto de comiso.

XXXXII. - Aunque por razones y con consecuencias distintas a las alegadas, el recurso se declara con lugar. El tribunal de mérito ordenó el comiso de la finca inscrita en el partido de Guanacaste, sistema de folio real matrícula [Valor 003], submatrícula y que pertenece a la sociedad [Nombre01 061], tras entender que fue adquirida con parte de la retribución económica que le fue prometida a [Nombre01 001] por los jerarcas de [Nombre01 091], es decir, con la ganancia obtenida por el delito de corrupción agravada por cohecho impropio (así, f. 16.338 frente, tomo XXXIV). Sin embargo, esta cámara absolvió a [Nombre01 001] por ese delito, tras descartar que como un hecho demostrado que este aceptó una promesa de retribución económica en los términos contemplados en la acusación y excluir también que su conducta, en lo que cabe considerar probado con certeza por el a quo, pudiese ser subsumida en otro tipo penal. Ante este nuevo panorama, se debe considerar improcedente el comiso de la finca perteneciente a [Nombre01 061]., sociedad anónima representada por [Nombre01 077], padre del imputado, ya que a pesar de que el inmueble se adquirió con los fondos procedentes de [Nombre01 060], en el caso particular no se configuró delito alguno, requerimiento básico para que pueda aplicarse lo dispuesto en el art. 110 del Código Penal. Por lo expuesto, se anula la sentencia impugnada en cuanto ordenó el comiso de la finca inscrita en el Registro Público de la Propiedad, partido de Guanacaste, bajo el sistema de folio real matrícula [Valor 003], sub matrícula . Se ordena la devolución del bien a su legítimo propietario.

POR TANTO:

• 1)Se declaran con lugar el segundo motivo de apelación de sentencia formulado por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre01 041]; la sección segunda punto D); y la sección tercera punto A), del recurso de apelación de sentencia formulado por el imputado [Nombre02 033], a título personal. En virtud de ello se resuelve lo siguiente: 1.1) Se declara ilícito el criterio de oportunidad otorgado a [Nombre01 064] y la prueba que derivó de este; 1.2.) Se anula parcialmente la sentencia impugnada, sólo en cuanto a lo siguiente: las condenatorias dispuestas contra [Nombre01 033] y [Nombre01 041]. Asimismo, por efecto extensivo, se anulan también las condenatorias dictada en contra de [Nombre01 028], [Nombre02 001] (sólo por el delito de corrupción agravada) y [Nombre01 022]. En aplicación del principio in dubio pro reo, se absuelve a estos cinco imputados de toda pena y responsabilidad por los delitos que se les han venido atribuyendo. 1.3.) Por innecesario, se omite pronunciamiento sobre los demás reclamos formulados por [Nombre01 033] a título personal; los recursos planteados por su defensor, el licenciado Rafael Gairaud Salazar; los demás reclamos contenidos en los recursos formulados por los licenciados Federico Morales Herrera y Erick Ramos Fallas, defensores de [Nombre 041]; los motivos formulados (con excepción del tercero de cada uno de sus recursos) por el licenciado Mario Navarro Arias, defensor de [Nombre 028]; por la licenciada Yamura Valenciano Jiménez, defensora pública de los coimputados [Nombre02 001] y [Nombre01 022]. 2) Se declara con lugar el quinto motivo por la forma, punto 1), del recurso formulado por los licenciados Wilson Flores Fallas y Nazira Merayo Arias, defensores públicos de [Nombre 006]. En virtud de ello se anula la sentencia únicamente en cuanto condenó a este imputado al pago de costas personales. Se ordena el reenvío de la causa al tribunal de juicio, para que se resuelva nuevamente sobre este extremo, con la debida substanciación. 3) Se declaran con lugar los motivos cuarto, quinto, sexto, séptimo, undécimo, duodécimo y décimo tercero de los recursos planteados por el licenciado José Miguel Villalobos Umaña, defensor particular de [Nombre01 018] y por este imputado a título personal, con las siguientes consecuencias: 3.1) Se anula la sentencia sólo en lo relativo a las penas impuestas a [Nombre01 018] por el delito de enriquecimiento ilícito. En cuanto a dicho extremo se ordena el reenvío de la causa al tribunal de juicio para que, con una nueva integración y la debida fundamentación, proceda a fijar la sanción que corresponda. 3.2.) Se anula la sentencia en cuanto dispuso el comiso del certificado de inversión N° 62445223 que fuera renovado en el certificado Nº , ordenándose su devolución a quien demuestre ser su legítimo propietario. 4) Se declara con lugar el tercer motivo del recurso interpuesto por el licenciado Mario Navarro Quirós, defensor particular de [Nombre02 028], mismo que denominó “ Errónea e inadecuada fundamentación. Violación al debido proceso y al derecho de defensa por errónea aplicación del artículo 110 del Código Penal”. En virtud de ello se anula la sentencia solo en cuanto ordenó el comiso de la finca del partido de Heredia inscrita bajo el sistema de folio real matrícula Nº [Valor 006], submatrícula a Nombre01 de la sociedad [Nombre01 053]. y de las acciones de [Nombre 028] en la sociedad [Nombre 057]., propietaria -entre otros- de los inmuebles inscritos en el Registro Público bajo el sistema de folio real matrícula Nº [Valor 007], submatrícula 000, y matrícula Nº [Valor 009], submatrícula . Se ordena la inmediata devolución de los bienes antes referidos a quien demuestre ser su legítimo propietario. 5) Se declaran con lugar los recursos interpuestos por el licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre01 077] en su condición de presidente de [Nombre02 061]. En virtud de ello se anula la sentencia impugnada solo en cuanto ordenó el comiso de la finca inscrita en el Registro Público de la Propiedad, partido de Guanacaste, bajo el sistema de folio real matrícula [Valor 003], sub matrícula y que pertenece a la citada sociedad anónima. Se ordena la devolución del inmueble a quien demuestre ser su legítimo propietario. 6) Los demás reclamos planteados por los imputados y sus defensores, se declaran sin lugar. 7) En aplicación de la política institucional de cero papel y siendo que la resolución es muy extensa, razón por la cual no se puede notificar por fax o correo electrónico, se deja a disposición de las partes un disco compacto que contiene la misma, el cual pueden retirar en la secretaría del tribunal a partir del próximo miércoles nueve de diciembre de 2015. Notifíquese.

Patricia Vargas González Ronald Salazar Murillo Mario Alberto Porras Villalta Jueza y jueces del Tribunal de Apelación Penal Imputado : [Nombre01 033] y otros Ofendido : Instituto Nacional de Electricidad Delito : Corrupción Agravada y otros AVARGASQ