An Overview of the Criminal Law System in Costa Rica

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Context

This document is intended to give you basic information on how the Cost Rican criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in Costa Rica. It should also be read in conjunction with the brochure A Guide for Canadians Imprisoned Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities.

The Costa Rican and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in Costa Rica. For example, please note that in Costa Rica: 

The Government of Canada will seek to ensure you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as a foreign government cannot interfere in Canada’s judicial processes.

For further information on the services consular officials can and cannot provide, please consult the brochure A Guide for Canadians Imprisoned Abroad as well as the Canadian Consular Services Charter page.

Your choice of legal representation in Costa Rica can be critically important and should be made with care. Consular officials can provide a list of lawyers who practice in the area of law related to your particular type of case and who may have represented Canadians in the past. They cannot, however, recommend specific lawyers. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. For further information, please consult the section on selecting a lawyer in the brochure A Guide for Canadians Imprisoned Abroad.

Arrest and detention

Please Note: Costa Rica is an INTERPOL member country. You may be subject to an INTERPOL notice.

Costa Rican criminal law, as established in the country’s two penal codesthe Código Penal de Costa Rica and the Código Procesal Penal—and other special legislation, is applicable to both citizens of Costa Rica and foreigners who commit crimes within the territory of Costa Rica.

Upon arrest, you will be detained by police. You cannot be held in detention longer than 24 hours without a court order. In most cases, only a prosecutor can order the continued detention of an individual. During the arrest, all personal items, including travel documents, are held in custody by the authorities. You will be informed of your rights, including the right:

If you choose to make a statement, the prosecutor’s office must receive it no later than 24 hours after your detention. This term can be extended if you haven’t yet obtained a lawyer.

Criminal proceedings in Costa Rica are held in Spanish. If you do not understand or cannot express yourself fluently in Spanish, you have the right to receive help from an interpreter or translator who will be court-appointed from a list of professionals registered with the court. While you cannot choose your own private interpreter or translator, you can request a change of interpreter or translator if you feel that his or her services are not allowing you to properly understand the proceedings.

Your rights under the Vienna Convention on Consular Relations

If you are detained or arrested abroad and wish to have Canadian consular officials notified, you should communicate that request clearly to the Costa Rican authorities. Costa Rican authorities have an obligation, under the Vienna Convention on Consular Relations, to advise you of your right to communicate with and have access to a Canadian consular representative. They are not, however, obliged to notify a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the convention, Costa Rican authorities are also required to send any communication you address to a consular post. For example, if you write a letter to the embassy of Canada or another Canadian consular office in Costa Rica, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of Costa Rica.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular Services Privacy Notice Statement for more details.

At your meeting with a consular official, please inform him or her if Costa Rican authorities did not inform you of your right to request that Canadian officials be notified of your arrest or detention, or if at any time they denied you the right to communicate with, or have access to, a Canadian consular official.

Dual nationality is legally recognized in Costa Rica. However, citizens of Costa Rican origin are considered to be Costa Rican citizens under the judicial system. The embassy of Canada may, therefore, be limited in its ability to provide you with consular services if you are considered to be a Costa Rican citizen. See Travelling as a dual citizen for more information.

Investigation and bail

During the preliminary phase of the investigation, the prosecutor’s office reviews all of the elements of the alleged offence both in favour of and against you in order to determine whether or not you should be prosecuted for a crime. The prosecutor is bound in his or her task by the relevant Costa Rican legislation, including, above all others, the fundamental rights guaranteed in the country’s constitution, as well as international agreements entered into by the Republic of Costa Rica.

The Criminal Procedure Act (Código Procesal Penal) establishes that the prosecutor must complete the preliminary investigation phase within “a reasonable period of time.” You can request the court in charge of the preliminary proceeding (tribunal del procedimiento preparatorio) to establish a specific date for concluding the preliminary investigation if you and your lawyer feel this period of time has passed. The period of time considered acceptable varies from one judge to another, and his or her determination of “reasonableness” hinges mainly on the complexity of the case and any difficulties encountered in the investigation. In general, the duration allowed for the criminal investigation process can be significantly longer than what would be experienced in Canada, with the exception of cases of flagrancy crimes (see section below, Special procedure for flagrancy crimes).

During this phase, you may be held in detention. The prosecutor must request a special public hearing to determine the reason for and length of pre-trial detention no later than 24 hours after you have been arrested and presented to the court. The hearing must be conducted within 48 hours of the request. In Costa Rica, pre-trial detention can only be imposed by the court if there is sufficient evidence to indicate probable cause that a crime was committed and if there reason to believe you may flee, hinder the investigation or continue to perpetrate the crime. The court must also consider whether prison time will be the likely punishment for the crime.

In principle, the maximum amount of time for pre-trial detention cannot exceed one year, but it can be extended for up to one additional year by a decision of the Superior Court (Tribunal de Apelación) for complex cases. In exceptional cases, pre-trial detention can be extended even longer by the Costa Rican Supreme Court (Sala de Casación Penal) or the trial court Tribunal de Juicio.

The right to request bail exists, even for foreigners. The amount of the bail will be determined by the court.

The Costa Rican criminal justice system establishes the possibility of a so-called short process (proceso abreviado). It is a process that can be used for any crime, as long as the accused admits the alleged acts and agrees to the use of the short process. The prosecutor must also agree to it. As a result of this process, the minimum punishment imposed could be diminished by one third.

The criminal trial

The Costa Rican criminal law system follows the European-Continental tradition. Unlike in Canada, there is no jury system in Costa Rica. A trial is presided over by a single judge or by a three-judge panel, depending on the potential punishment arising from the charges.

If, upon completion of his or her investigation, the prosecutor arrives at the conclusion that there is enough evidence to prove that you are guilty of the crime, he or she will request the opening of a criminal trial at the preliminary oral hearing (audiencia preliminar), after which the court (tribunal del proceso intermedio) will decide if the request from the prosecutor will be accepted.

If the opening of the criminal trial is accepted, the sentencing court (tribunal de sentencia) will establish the date and time of the trial, summon witnesses and experts, and request evidence, objects and documents, among other necessary tasks. The trial takes place in an oral and public manner, as opposed to being conducted in writing. You have the right to be present during the trial. The accusation is read and briefly explained by the prosecutor. The defence is then permitted to explain its position and present any evidence it has that had not been provided by the prosecutor. After the evidence is received by the court, a final debate between prosecutor and defence takes place and requests are heard from all sides. If you (as the accused) have not participated in the proceedings, you may be asked to make a statement.

Once the debate is closed, the judge(s) proceed to deliberate in a non-public session. Decisions are determined by majority vote in the case of more serious crimes; otherwise the decision is made by the sole presiding judge. If necessary, a reopening of the debate can be ordered.

Duration of a trial and sentencing

In Costa Rica, the duration of the criminal proceedings can be lengthy compared to criminal justice system proceedings in Canada. There are no specific timelines for criminal proceedings and they are only required to take place within a “reasonable duration.”

The judge or panel of judges makes the sentencing determination based on guidelines set by the Código Penal de Costa Rica.

The right of appeal was incorporated in the Costa Rican criminal law system in 2011 (Ley N. 8837 del 9 de junio del 2010). The verdict and all judicial decisions in the final phase of criminal proceedings can be appealed. The appeal must be filed within 15 days at the same court that dictated the verdict. If an appeal is granted, the Higher Court (Tribunal de Alzada) conducts a full review of the case and pronounces on all the points of law and of fact expressly questioned by the defendant, as well as on any other absolute defects or violations of due process that are found in the verdict.

In the case that one of the parties chooses to appeal the court’s decision, the duration of the court proceedings will increase, not only by the duration of the additional proceeding of appeal but also by the waiting time for the appeal to be granted, which could be fairly long.

Special Procedure for Flagrancy Crimes

In response to the rise in criminality in the country, a special law introducing expedited procedures for certain types of criminal offences, called “cases of flagrancy,” was enacted in 2009. Flagrant cases are defined as cases in which the perpetrator is caught in the act of committing a criminal offence or immediately afterward, or while under pursuit or having in his possession objects or leaving behind traces that make it apparent and reasonable to presume that he just participated in a crime. In such cases, the preliminary and intermediate stages of the ordinary criminal procedure are ignored and only the flagrancy court (Tribunale de Flagrancias) is responsible for all of the activity of the procedure. A formal limit of 15 days is enforced for pretrial detention and the hearing, at the end of which the verdict is pronounced. The procedure is oral and public like the regular criminal procedure, but substantially faster.

Transfer to a Canadian prison

Canada has a transfer of offender treaty with Costa Rica that enables Canadians convicted of offences in Costa Rica to serve their prison sentence in a Canadian penal institution if both the Canadian and Costa Rican governments consent to the transfer. Transfers are not automatically granted. An application for transfer can be submitted only after you have been convicted and sentenced. You should consult your lawyer if you are considering applying for a transfer. For further information on transfer requests, please consult the brochure A Guide for Canadians Imprisoned Abroad.

Clemency intervention in death penalty cases

There is no death penalty in Costa Rica.

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