1. Domestic Legislation
a) Criminal Code
The Costa Rican Criminal Code covers a wide range of offences regarding the duties of the public function. They also include participants (aiding and abetting), extending the character of public servant to those accomplices or co authors who participated in the offence with the knowledge that one of the authors was covered by this quality.
Section I covers all offences related to the abuse of authority and illegal appointments. Section II and III cover the complete range of corruption offences, such as bribery and illicit enrichment. Section V covers public embezzlement.
In the midst of two large scale investigations against former heads of state, on October 2004 Costa Rica adopted the Law against Corruption and Illicit Enrichment, law 8422-2004, which detailed offenses related to corruption. It widened the scope of public enrichment; it included traffic on influences, detailed the offense of money laundering, and regulated more comprehensively the celebration of contracts.
As explained before, the Law on narcotics, psychotropic substances, drugs of use not authorized, and legitimization of capitals and connected activities (nº 8204) sets in place the FATF's 40 recommendations, and for the first time criminalized the offense of money laundering. Originally, this offense was only conceived for the assets originated in drug trafficking and this is the reason why it is included in the Anti Money Laundering law. However, according to article 1, any crime punishable with at least 4 years can be a predicate offense for money laundering. At a first glance this seems encouraging. However, few offenses meet this requirement. As a matter of fact, none of the offenses contemplated in the Law against Corruption and Illicit Enrichment are punishable with a minimum of three years.
The criminal offenses are contemplated from article 57 onwards of the law. Article 69 specifically refers to money laundering.
The confiscation of the instrumentalities of crime is contemplated and the Costa Rican Institute on Drugs (ICD) is appointed as escrow for the proceedings. After a court ruling is obtained, the ICD can either keep these assets to be used within its work or donate them to organisms dedicated to the prevention or repression of drug trafficking.
2. Bilateral Treaties
a) Dominican Republic
Convenio entre Centroamérica y República Dominicana sobre Drogas y Lavado, Prevención y Represión de los Delitos de Lavado de Dinero y Activos, con Tráfico Ilícito de Drogas y Delitos Conexos
b) Mexico
Tratado de extradicion y asistencia juridica mutua en materia penal entre los Estados Unidos Mexicanos y la Republica de Costa Rica
c) Panama
Acuerdo entre el Gobierno de la República de Costa Rica y el Gobierno de la República de Panamá en materia de intercambio de información financiera relacionada con el blanqueo de capitales
d) Paraguay
Convenio sobre Asistencia Judicial en Materia Penal entre Paraguay y Costa Rica
3. Regional Treaties
a) TALM (Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama)
This treaty is only pertinent in the Central American Region and is meant to facilitate the assistance in any criminal investigation, provided that the offense in question is punishable in both the jurisdictions. This assistance includes, among other things, interviewing witnesses, obtaining evidence and the execution of precautionary measures. However, the treaty does not apply to the detention of people to be extradited or the execution of criminal convictions.
The request must be issued in writing and establish certain details, such as the name of the authority making the request, the purpose of the request and a brief summary of the facts under investigation, among others.
In regards to asset recovery, the treaty is not very comprehensive. However, it does establish that if the Central Authority of one of the States Parties is aware of the existence of assets or the instrumentalities of a crime committed in another State Party, and if these assets or instrumentalities are subject to confiscation, this must be immediately communicated to the authorities of the other state. The treaty does not refer as to the mechanisms for the recovery of those assets
b) OAS Convention against Corruption signatory: signed on 29th March 1996, ratified on 9th May 1996
"In 1996, the OAS member states adopted the Inter-American Convention Against Corruption. The Convention, which was the first international legal instrument to address this issue, specifically includes in its rationale the recognition of the international importance of corruption and the need for an instrument to promote and facilitate inter-country cooperation to combat it. Consequently, with that motivation, it set forth two goals:
- First, to promote and strengthen the development by each of the States Parties, of the mechanisms needed to prevent, detect, punish, and eradicate corruption.
- Second, to promote, facilitate, and regulate cooperation among the States Parties to ensure the effectiveness of measures and actions to prevent, detect, punish, and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance.
The Convention identifies acts of corruption to which it applies and creates binding obligations under international law. It provides for institutional development, requirements for the criminalization of specified acts of corruption and articles on extradition, seizure of assets, mutual legal assistance, and technical assistance where acts of corruption occur or have effect in one of the Parties. It also highlights the importance of preventative measures."
This convention briefly refers to asset tracing and forfeiture of property, extradition and mutual legal assistance.
In regards to extradition, article XIII can only be applied in accordance with the offenses established in the convention, but always subject to the conditions provided for by the law of the Requested State or by applicable extradition treaties.
The convention also provides that the State Parties must afford one another the widest measure of mutual assistance to investigate or prosecute acts of corruption, to obtain evidence or to take any necessary action to facilitate legal proceedings and measures.
According to article XV, part of this international cooperation implies that the State Parties must provide each other assistance in identifying, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from or used in the commission of offenses established in the convention. A state party must also provide for the transference of the property or proceeds requested by another state when enforcing a forfeiture judgment. Bank secrecy cannot be used as a basis for a refusal to provide the requested assistance.
4. International Treaties
a) UNCAC Signatory: Yes
UNCAC establishes that mutual legal assistance can be used, apart from the traditional purposes, for the recovery of assets, in accordance with chapter V of the convention. Asset recovery is in fact one of the key principles of this instrument. On article 54, specifically, it refers to the mechanisms for recovery of property through international cooperation in confiscation. The competent authorities of a requested State Party must be able to give effect to an order of confiscation issued by a court of another state party or to order the confiscation itself. This is done through mutual legal assistance requests or letter rogatories.
The convention establishes the need for a central authority to be set up in every country. However, once the request reaches the central authority it is normally handed to a prosecutor for execution. The prosecutor will send the correspondent requests to the judge with the objective of obtaining the pertinent orders. This would be the prosecutor's first role in enforcing foreign judgments in their national jurisdictions.
The mutual legal assistance request is subject to a series of formalities, according to article 15 of UNCAC. It must clearly establish the identity of the authority making the request and the subject matter and nature of the investigation. It should also contain a summary of the relevant facts and a description of the assistance sought. It must also mention the identity of the people involved. Finally, it should establish the purpose for which the information will be used. The letter of request must be sent in a language acceptable to the authorities of the requested party. The lack of any of these requirements is reason enough to refuse assistance.
b) OECD Anti-Bribery Convention Signatory: No
c) UNTOC Signatory: Yes, not ratified
As criminals themselves have started to operate regionally and even more spread out around the globe, national jurisdictions must understand the need to cooperate and work together in order to prevent becoming a hiding place for ill gotten profits as well as to be able to trace and retrieve moneys that have been maliciously stolen from them. This can only be achieved through international legal assistance, which is strongly emphasized by the UNTOC.
On article 18 this convention enumerates a wide range of examples of information that may be accessed through mutual legal assistance (MLA). The catalog is practically unlimited. Through MLA it is possible to collect documentary evidence; statements of persons (which, if are reflected on police reports could be later incorporated in trial even in the most accusatory of systems); effect service of judicial documents; execute searches, seizures and freezing of assets; examination of objects and sites; obtain expert evaluations; or, as UNTOC itself words it, "any other type of assistance that is not contrary to the domestic law of the requested State Party".
Furthermore, it establishes the need to create a central authority to process all the MLAs received from State Parties. It is important for the requesting parties to keep in mind that the MLA must be submitted "in a language acceptable to the requesting State Party", which should normally be one of the official languages of the concerned country. The document must always identify the authority making the request; the nature of the investigation; a brief summary of all the relevant facts; a detail of the assistance sought; the identity, location and nationality of any person concerned and the purpose for which the evidence is required. The lack of any of these formalities allows the requested party to refuse rendering help.
