PART TWO: LIABILITY OF LEGAL ENTITIES FOR DOMESTIC BRIBERY, TRANSNATIONAL BRIBERY AND OTHER CRIMES

Law 9699 in force as of June 10th, 2019

PROCEDURE FOR THE CRIMINAL INVESTIGATION OF AN IMPUTED LEGAL ENTITY:

Criminal proceedings against the legal entity must be dealt with in the same file as the criminal case against the natural person linked to the legal entity. If the natural person cannot be identified, the proceedings and the case will continue against the legal entity.

As long as the rules and guarantees for the accused contained in the Code of Criminal Procedure are compatible, they will be applicable to legal entities.

The legal entity shall be served through its legal representative, resident agent, or attorney in fact, as appropriate, who has the obligation to be present at all acts of the process in which the presence of the accused is required. If it is not a natural person, then it shall be served in the registered office. The natural person representing the legal entity does not appear before the requesting judicial authority, being duly served, may be conducted by the police force, and pay the costs caused, unless just cause. However, the relevant and indispensable investigative steps shall continue.

FIGURE OF REBELLION:

The legal entity who, without serious impediment, does not appear through its legal representative to a summons or changes the registered office indicated without notice, will be declared in REBELLION. A public criminal defender will be immediately appointed, who will exercise its legal representation and the criminal defense of the legal entity.

ABBREVIATED PROCEDURE AND ALTERNATE CONFLICT RESOLUTION:

During the proceedings, the special abbreviated procedure and the alternative solutions provided for in the criminal procedure legislation may be applied.

PRECAUTIONARY MEASURES:

It is provided as a rule of principle that the voluntary dissolution of the legal entity during the course of the criminal proceeding is prohibit. At the request of the Public Prosecutor’s Office, the complainant, the civil plaintiff or the victim, the judicial authority shall order the annotation of the criminal proceedings at the margin of the legal entity´s registration, for which the respective order shall be sent to the corresponding registry.

Similarly, in order to ensure the effectiveness of the possible criminal liability to be imposed or already imposed, initiated criminal proceedings against a legal entity, and until the issuance of final criminal judgement or the execution of the judgement imposed, the immobilization of the legal entity may be ordered by sending an order to the corresponding registry. Once the immobilization has been carried out, from the presentation of the order, the authorization of A judicial authority will be necessary, depending on the stage in which the criminal process is, for the transformation, merger, absorption, acquisition, or division of the legal entity.

CRIMINAL RECORDS AND ALTERNATIVE MEASURES:

As with natural persons, a criminal record and alternative measures is created which shall establish the convictions and alternative measures to the conflict ordered against legal entities, in application of this Law.

PRESCRIPTION OF THE PENAL ACTION:

Although fine penalties usually have a period of prescription of two years, article 31 31 inc. b of the Code of Criminal Procedure is modified so that the statute of limitations for criminal proceedings is extended to TEN YEARS in the application of this Law.

POWERS OF INTERNATIONAL INVESTIGATION AND OBLIGATION OF COLLABORATION:

The Public Prosecutor’s Office may resort to the mechanisms of international mutual legal assistance provided for in Article 9 of Law No. 9450, Convention to Combat Bribery of Foreign Public Servants in International Commercial Transactions of the Organization for Economic Cooperation and Development, of May 11th, 2017, and in chapter four of Law No. 8557, United Nations Convention against Corruption, of November 29th, 2006. It shall request from foreign authorities and international organizations, directly or through the established channels, any evidence or the practice of proceedings that are necessary, within the scope of their competences, for the processes established in this Law. In the same way, it shall have access to all forms of judicial, police or administrative cooperation which it deems necessary, in accordance with the procedures laid down in conventions, treaties or agreements signed, approved, and ratified by the State, or by virtue of any other instrument of international cooperation, signed by any authority of a national nature or promoted by means of cooperation networks between similar authorities of different States.

Similarly, the Costa Rican State shall cooperate with other States regarding investigations and proceedings whose object is consistent with the purposes pursued by this Law, whatever its denomination. Such cooperation shall be coordinated through the Office of the Attorney-General of the Republic, which shall arrange for the office within its competence as the Central Authority.

RULES OF INTERPRETATION:

It is of particular interest to highlight the provisions on the INTERPRETATION of this law, as provided for in the international treaties ratified by Costa Rica, for acts of transnational bribery considered in the provisions of Law No. 9450, Convention to Combat Bribery of Foreign Public Servants in International Commercial Transactions of the Organization for Economic Cooperation and Development, of May 11th, 2017, and Law No. 8557, United Nations Convention against Corruption, of November 29th, 2006.

In addition, as appropriate, it may be applied Act No. 4573, the Criminal Code, of May 4th 1970; Act No. 7594 of April 10th, 1996 on the Code of Criminal Procedure; Law No. 63, Civil Code, of September 28th, 1887; Law No. 9342, Code of Civil Procedure, of February 3rd, 2016; Law No. 3284, Commercial Code, of April 30th, 1964; Law No. 8422, Law against Corruption and Illicit Enrichment in the Civil Service, of October 6th, 2004 and Law No. 6227, General Law on Public Administration, of May 2nd, 2002 and other concordant laws, where relevant.

OPTIONAL MODEL OF ORGANIZATION, CRIME PREVENTION, MANAGEMENT AND CONTROL:

In parallel with the regulations providing for criminal repression, this same law (Act No. 9699) promotes the adoption of a model of organization, crime prevention, management and control, of an optional nature, containing programs of transparency and business ethics, and of internal anti-corruption and internal control mechanisms by Costa Rican legal entities and must be related to the risks inherent in the activity they carry out, their size, turn, complexity and their economic capacity, with the aim of preventing, detecting, correcting and informing the corresponding authorities of the criminal acts covered by this Law. To develop this topic, it will be requiring a special treatment to these optional models of organization, crime prevention, management, and control.

Definitely this new legislation opens a new field in the development of Corporate Criminal Law, where we will not only have to develop new and greater knowledge in the area of repression against these crimes of corruption, but for the first time a self-preventive activity is promoted (models or protocols of compliance) that allows the possible subjects of criminal imputation – legal entities – to adopt measures within their organizations that allow them to limit and even exclude their liabilities.

Written by:

Jaime Garro

Associate

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