A Do-It-Yourself Guide for Prosecuting Economic CrimesAn special A.M. Costa Rica guest essay
By Mario Valverde Brenes*
By Mario Valverde Brenes*
I have heard some entrepreneurs in Costa Rica complaining about the long time it takes to make it to a public trial when they or their companies find themselves victim of fraud, embezzlement or any other type of financial scam.
You’d normally hire a penal lawyer to present the complaint on your behalf, or you could even present yourself at the Judicial Investigating Organization and make the complaint orally with as many details as you may recall at the moment.
This is just the notitia criminis that would get the system started to investigate your case and that would eventually end up in a formal accusation request from the fiscal in charge… five or six years later.
As opposed to common crime, financial crime is a very specialized matter, and it requires the intervention of the equally specialized economic crime section of the judicial police. This is a department composed mainly of financial experts, CPA’s and accountants who have the responsibility to make a detailed audit-like investigation in order to render an expert opinion on the how, who, when and what of the crime, which will in turn be used by the prosecuting fiscal to decide whether to accuse or to dismiss the case.
It is at this stage where most of the investigation time is consumed, as this is a very busy section with hundreds of investigations going on simultaneously with the aggravation that more often than not the insufficient human resources of the economics unit are kept on the high profile cases. The average time for the completion of this financial investigation is about 18 months, if the case is not too complicated. By then two years have probably already gone by since you went to place your complaint.
Next, the fiscal has to find time to sit with the report, finish interviewing the remaining witnesses who have to be duly subpoenaed and finally, some six months later at best, present a formal accusation before a judge.
The next step will be the preliminary hearing where a judge will decide the merit of the accusation and listen to both parties, rule on the objections, and, if no conciliation is reached, appoint a date and time for the public trial, which will depend on the agenda of the particular court where it will be held.
Nowadays public trials are being set for no less than two years after the preliminary hearing. Common crime trials tend to be held sooner due to its own non-specialized nature.
However, there is a faster alternate way provided by the law itself. Article 20 of the Penal Procedures Code states that when dealing with patrimonial content crime where no violence against persons have been exerted, there is no public interest gravely compromised and with the approval of the Ministerio Público, the public action can be converted into private action.
That is, you, the victim, can ask to be allowed to act as prosecutor. You will need to hire a forensic accounting expert to put together the investigation that will serve as the technical proof in court (the job that the judicial police would otherwise do) and, once this is done, you just file your querella privada or private accusation directly to the criminal tribunal, which will, in turn, serve it to the defendants and grant them five days (yes, just five) to reply and offer any counter proof for the public trial which date will be immediately set.
By this process you skip the fiscal’s investigation stage and, most important of all, the preliminary hearing and go directly to public trial by the fast lane, thus being able to make it to court in less than a couple of years or even sooner depending on the court’s agenda.
The reasoning behind this system is, on the one hand, to lessen the burden on the prosecutors at the Ministerio Público by allowing the victims of financial crime in those cases that meet the criteria, to take personal charge of them, giving them in turn the opportunity to have their day in court a lot sooner than going through the long regular process.
This can be done either at the very beginning when placing the complaint (remember that the Ministerio Público must agree) or at any stage of the process prior to the appointment of the public trial date.
In my personal experience, if your case is solid and you have or can get by yourself the required paper track, this is the way to go. Many criminal lawyers fail to mention this alternative to their clients simply because it represents a lot more responsibility for them (actually, all of it as opposed to going with the Ministerio Público where all of the responsibility for the investigation and the accusation itself falls on the fiscal’s shoulders). Also you have to have a strong financial background to effectively litigate on this matter.
But the possibility is there to be taken advantage of by anyone who wishes to. This is a sort of “private justice” that allows individuals to take to court financial criminals in almost no time when compared to a regular process. But again, it only works when the case is solid as it could otherwise backfire.
*Mr. Valverde is a lawyer, notary and CPA in Guachipelín, Escazú.