I. Criminal Asset Recovery
1. Tracing
Article 24 of the Constitution of Costa Rica guarantees the right to privacy, which constitutes a limitation to the access of banking information. However, such information may be acquired through a Court Order based on the Central Bank Law (Law 7558-95) as well as the Search and Seizure of Documents Statutes (Law 7425-94).
According to the law, the Central Bank is in charge of regulating the financial institutions as well as exercising oversight through the Financial Entities Superintendence (SUGEF). The SUGEF is an excellent asset tracing tool, as it has been granted the faculty to intervene in financial institution if it suspects that it might be involved in money laundering. In regards to the stock market and valuables, the General Superintendence of the Stock Market (SUGEVAL) was created in order to exercise oversight. This law is applicable to all financial institutions, public and private banks, non banking financial institutions, savings and loans institutions and associations of workers.
The Anti Money Laundering Law (Law 8204) was created to set in place the FATF's recommendations regarding money laundering. It also provides with direct regulations on SUGEF, SUGEVAL and SUPEN (the Pensions Superintendence). It is important to keep it in mind as it contains several provisions on record keeping, know-your-customer policies, etc., which facilitate the tracing of illicit proceeds. Article 16, for example, sets the threshold for cash transactions at US $10.000.00 and obliges banks to keep their records for a period of at least 5 years. Suspicious transactions, according to article 24, must be immediately reported to the organ exercising control (SUGEF or SUGEVAL), which in turn will notify the Financial Investigations Unit.
If the FIU finds that the transaction reported could be considered money laundering it must immediately report it to the Economic, Corruption and Tax Crimes Office (Fiscalía Adjunta de Delitos Económicos, Corrupción y Tributarios, FADECT), an office created within the Office of the Public Prosecutor's Office. This office is regulated by the Law 8275-2002 (Ley de la Jurisdicción Penal de Hacienda), which made it competent to investigate and prosecute all offenses committed within the exercise of the public function
It is important to keep in mind an important difference with Common Law Legislations, which is that the civil action can and is normally exercised within the criminal process. It is a criminal judge who will pronounce himself on the civil pretenses and the civil judgment will also be included in the criminal sentence. The civil proceeding is an accessory to the criminal proceeding. This has enormous consequences for asset forfeiture, as the foreign state must always work within the frame of a criminal process in order to freeze, confiscate and repatriate.
Article 99 of the Criminal Procedures Code (CPP) allows the civil actor to request the freezing of assets as a precautionary measure without any time constraints other than the duration of the criminal process itself (art. 263). In terms of asset recovery, this implies that the requesting state must constitute itself as a civil actor, according to the provisions established on Chapter II of the CPP. What is innovative about these provisions is that the Costa Rican CPP allows foundations, NGOs, etc., to constitute themselves as civil actors when the public interest was compromised by the offense (art. 70.d). On the downside, this means that asset recovery can only be exercised within the frame of a criminal procedure and there is no action in rem.
The Criminal Procedures Code allows for confiscation of assets at the end of the criminal process. The court ruling must also set the amount of the damage caused, irrelevant of the result of the process. This means that the respondent can be liable even if he was acquitted during the criminal process. The sentence must also establish which objects will be confiscated in the case of the instrumentalities of crime and if they were purchased with illegal proceeds. All the instrumentalities used to commit the crime will be forfeited.
Also, the Law against Public Enrichment commented above, provides that all the proceeds of corruption will be forfeited in favor of the State or the respective public organization once a conviction for illicit enrichment has been achieved (article 61), with the exception of rights acquired in good faith. As this is a criminal law, the standard of proof is also criminal and the process for confiscation is contained in the Criminal Procedures Code as analyzed before. This is only applicable for convictions obtained in the domestic criminal courts
4. Repatriation
To be filled in.
There is no in rem action but a possible remedy for this is the possibility of exerting a civil action suit during the course of the criminal process, as described above.
III. Civil Law Suits
Art. 1064 of the Civil Code established the possibility of initiating Civil Law Suits for extra contractual responsibility. However, this action can only be executed against a person (in persona) and not against a patrimony (in rem). For practical reasons, the criminal jurisdiction is more effective when looking to repatriate assets of corruption.
