Costa Rica – Whistleblowing Protection

a. Legislation – Whistleblower

Gaps in Costa Rican legislation:

  • legislation allows for criminal defamation and civil sanctions for defamation, which effects whistleblowers and journalists greatly
  • lacking whistleblower policies/procedures in the corporate sector
  • lacking explicit job protection for whistleblowers in public and private sectors
  • only case law protects the confidential of journalists sources – not protected by legislation
  • no outlined process for reporting cases of retaliation but Costa Rica law does criminalize threats/retaliation made toward public officials and private persons
  • Costa Rica keeps good record of the number of complaints/requests for whistleblower protection but does not keep as good of records on protections provided – unable to determine how effective protections are etc…
  • data protection laws being drafted but there is not discussion of their effect on whistle-blow protection or procedures

i. What is the existing legislative regime in force?

Costa Rica allows for confidential complaints to be made related to corruption. There are provisions specific to the Costa Rican Central Bank that allow for confidential and anonymous complaints. There are penal sanctions for revealing confidential information.

Costa Rica has ratified the Inter-American Convention on Human Rights and there have been some notable cases at the Commission and have been referred to the Court.

There are offices to handle whistleblower protection; however, there are several cases that remain unresolved and instances of corruption in handling cases are common.

1. Which Acts/codes directly apply to the area?

Law against Corruption and Illicit Enrichment in the Civil Service (Law No. 8422)

Law against Corruption and Illicit Enrichment in the Civil Service (Law No. 8422) (the law has received some criticisms for being weak (see case law section)) entered into force in 2005, and covers such aspects as, conflicts of interest, incompatibilities and disqualifications, complaints by citizens and confidentiality of the identity of whistleblowers.

Chapter 1 – General Disposition

Article 8 – Protection for the accuser of good faith and information that institute administrative procedures. The Office of the Comptroller General of the Republic, the administration and the internal auditing offices of the public institutions and businesses will keep secret the identity of the citizens that, in good faith, present claims for corruption acts.

The information, documents and other evidences from the investigations held by the internal auditing offices, the administration and the Office of the Comptroller General of the Republic that might result in administrative procedures will be confidential during the preparation of the corresponding report. Once the corresponding report is made and until the final resolution of the administrative procedure, the information kept in the file will be classified as confidential information, except for the subjects involved, who will have free access to every document and proof in the mentioned administrative file. However, the judicial officials might request the pertinent information, on behalf of the possible existence of a crime against the honor of the accused.

Article 8 – Confidentiality of the good faith whistleblower and information that comes from administrative procedures

The Comptroller General of the Republic, the Administration and internal audits of institutions and public companies will keep confidential the identity of citizens, who in good faith, present their offices complaints on acts of corruption.

Information, documentation and other evidence needed to carry out an internal audit obtained by the Management and Comptroller General of the Republic, whose result can lead to the opening of an administrative procedure, shall be confidential during the formulation of the relevant report. From notification of the complaint until the final resolution of the administrative procedure the information in the file will remain confidential, except among the “parties involved”, which will have free access to all documents and evidence submitted in the administrative proceeding.

However, judicial authorities may request relevant information about the possible existence of an offense against the honor of the person complained against.

Article 12 – International Cooperation

Actions aimed at improving the mechanisms for reporting acts of corruption –

Through the provisions of Chapter III called “Citizens power to Whistle-blow” of the above-mentioned the recommendation of the committee are fulfilled.

The Attorney General’s binding statement C-076-2004, noted that the confidentiality of the identity of the whistleblower in the administrative headquarters is not subject to any time limit and should be maintained until the investigation is complete.

Pursuant to the General Act on Internal Control, the Law Against Corruption and the Illicit Enrichment in the Public Service, the regulation for reporting procedures and preliminary investigations in the Central Bank of Costa Rica and its organs and Secretariat based on a collective agreement signed between the Central Bank of Costa Rica and its employees (Regulations for the Transmission of Denouncements and Preliminary Investigations in the Central Bank of Costa Rica and its Organs) – procedure for making a complaint is as follows:

Article 1 – The object of the regulations are to establish procedures for the Central Bank of Costa Rica for the investigation of situations and denouncements of irregular issues that may generate disciplinary responsibility. It applies to current and ex officials of the bank in order to determine whether a file should be opened on a case, the initiation of a preliminary investigation, etc.

Article 2 – it applies to all services and workers of the Bank, the presentation of denouncements and any preliminary investigations thereafter. These regs supplement other Costa Rica relevant laws.

Article 4 – Duty to Denounce

Any official in the Institution that has knowledge of facts that can be assumed in any reasonable way, the existence of possible misconduct by any of the service persons should denounce it before its administrative boss or internal audit of the institution.

Article 6 – Protection of Whistleblowers

The Bank is obliged to protect the identity of the complaint from the moment the complaint is filed and even after the end of the respective administrative procedure; however, judicial authorities may request information about the possible existence of an offense against the honor of the person complained against.

In addition, the complainant will have a right to be informed of the result of the management of its complaint.

In the case of admitting and rejecting the complaint, the Administration, or internal auditor, must inform the complainant why it has been accepted or rejected.

Article 9 – Anonymous Complaints

Complaints that are made anonymously will not be processed, except in exceptional cases when it has corroborating evidence the complain will be processed strait away.

Complaints will also be rejected for a number of reasons outlined in the regulations – i.e. the Institution does not have the capacity, per se inadmissible or groundless, repetitive, prejudicial complaints that assert the complainant’s agenda.

Article 17 – Handling of the file

The competent body that receives the file or the initial act of an administrative procedure shall operate according to the following:

  1. Dictate the case file, when found relevant free of the reasons underpinning the decision, which will be reported to officials related to the results of the preliminary investigation.
  2. In those cases in which there is no labor responsible but civil responsibility is possible, prior to opening the relevant administrative procedure, the corresponding top administrative official will be able to make the results of the investigation known to those responsible, in order to exhaust the possibility of an agreement to compensate for damages, without the need for the realization of an administrative procedure, without implying any premature decision in the case.

    The outcome of this conciliation should be in a written record and the person who is eventually investigates is entitled to a professional assistant in whatever way they find it relevant. A breach of this agreement, or the lack of it will authorize the opening of the corresponding administrative procedure.

  3. Matters relating to possible discipline will proceed immediately to dictate the initial act of the administrative procedure.
  4. For preliminary investigations carried out by the internal audit, the Board of Directors, management or the corresponding body, will issue the initial act once the respective report is accepted in accordance with facts and the recommendations for initiating an administrative procedure.

NOTES on the Regs for the Transmission of Denouncements and Prelim Investigation in the CB of Costa Rica and its Organs:

  • protection of the rights of good faith whistleblowers and in relation to the specific information that comes from an investigation
    • duty of confidentiality until the final resolution of the proceeding and/or the civil responsibility in the event of an case that is opened
    • the only exception to this is when judicial authorities solicit information pertinent to this issue, before the possible existence of a crime against the honor of the person complained against

The following is the procedure for making a complaint:

  • the Bank is obligated to protect the identity of the whistleblower until complaint is filed and includes until the conclusion of the respective procedure and/or the civil responsibility, in the case where a case must be opened
  • the whistleblower has the right to be informed of the outcome of the case, provided information is provided where they can be informed
  • when the complaint is rejected the whistleblower should be be informed of the reasons
  • when the complaint is submitted, the internal audit has five working days from the day after its receipt to briefly analyze which may require that relevant legal advice and the following procedures apply:
    • transfer the complaint to the administration of the Central Bank for the procedure to be applied. If another internal office should handle the case those procedures should be followed
    • directly file the complaint if/when a case is found to have no elements that indicate the possible commission of an offense requiring discipline or civil liability
    • a preliminary investigation will begin when a complaint is deemed to deserve further review so that the need for punitive proceedings and/or livil liability is needed
    • the complaint should be sent to the competent authority to open a punitive procedure and/or civil liability when there is enough evidence to conclude the commission of an offense and/or civil liability
    • in the event facts are uncovered from an investigation that indicate a potential crime the administration should submit the case to the judicial authority if necessary without preventing an internal disciplinary or civil administrative steps
    • if the internal auditors finds the case requires further information the whistleblower will be asked to provide further information; the complaint will not be reviewed any longer until the information needed is provided

When the complaint is referred to the administration it is their responsibility to determine appropriate measures under General Law on Internal Control, Act. 8292 (see Article 7)

General Law of Internal Control – Law 8292

Article 6 – Confidentiality of the whistleblower and studies that originate from the opening of administrative procedures. Same language as article 8.

Guidelines for the Care of Complaints Raised before the Comptroller General of the Republic

No. L-2-2005-CO-DFOE

Article 5 – Confidentiality: The identity of the whistleblower, the information, the documentation and other evidence of the investigation will be confidential in accordance with that established in Article 6 of the General Law on Internal Control and 8 of the law against corruption and illicit enrichment in the public service. Infractions of obligations to maintain such confidentiality may be punished as provided in those laws.

Article 9 – Admission of Anonymous Complaints: Anonymous complaints will be handled in so much as sufficient elements and appropriate evidence are provided which allow for the initiation of an investigation, otherwise the complaint will be archived.

Penal Code

Article 337 – Divulgence of Secrets

A punishment of imprisonment from three months to two years shall be imposed on a public official that discloses facts, actions or documents, which by law must be secret.

2. Which other Acts/code indirectly apply to the area (i.e. are there relevant civil or criminal procedure provisions which could affect rights / duties under principal Acts (those which directly apply)?

Regulations for the Transmission of Denouncements and Preliminary Investigations in the Central Bank of Costa Rica and its Organs

Article 3 – Definitions

administration, ex-service person, Institution, head executives, regulations, service persons, etc…

Complaint – public or private news brought to the attention of the “Institution” in written form or any other way, to determine whether an investigation is necessary.

Irregular acts – any act or omission of an official in the performance of their duties contravenes the internal or external rules applicable to the Institution, and may lead to disciplinary and/or civil action in accordance with the legal system.

Article 5 – Admissibility of the Complaint

Heads that receive complaints must assess their origin and admissibility, such as the cost, complexity and impact to handle it or reject it, also applying the criteria of reasonableness and objectivity that leads to a reasonable resolution in accordance with Art. 14 of the regulation of the law against corruption and illicit enrichment.

The Institution has a duty to deal with complaints filed by citizens for alleged irregularities committed by its officials in the terms of this regulation.

Costa Rica has ratified the Inter-American Convention on Human Rights – criminalizing speech is incompatible with the rights established under Article 13 of the Convention.

According to the Commission as of 1994: “Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence.”

Law against Corruption and Illicit Enrichment in the Civil Service (Law No. 8422)

Article 9 – Attention to complaints submitted to the Office of the Comptroller General

Article 10 – Limitations of access to the administrative records

Article 11 – Access to confidential information

Guidelines for the Care of Complaints Raised before the Comptroller General of the Republic

No. L-2-2005-CO-DFOE

Article 6 – Essential requirements that complaints must meet when submitted to the Office of the Comptroller General of the Republic:

  1. alleged acts must be exposed in clear, precise and detailed form, offering sufficient detail that allow for an investigation: the moment and place in which the acts occurred and the person who acted.
  2. Indicate the possible irregular situation that affect public finances to be investigated.
  3. The complaint must indicate the claim in relation to the the alleged facts

Article 7 – Additional Information: The complainant must also provide supplementary information on the estimate of the economic damage that occurred against public funds, identify probably witnesses and the place or way they may be found, as well as the contribution or suggestion of other evidence.

Criminal Procedure Code

Article 281 – Obligation to Complain: Obligation to Denounce Prosecutable Offenses:

  1. Officials or public employees who know of them due to the exercise of their functions

In all cases, the denunciation will not be obligatory if that person reasonably risks prosecution, their spouse or relatives up to third degree by consanguinity or affinity, or of a person living with the complainant or one tied to him/her by special ties of affection also reasonably risks prosecution.

3. How is the division of power set out? Is the Relevant Jurisdiction federalized?

The Costa Rican government has four branches: Judicial, Executive (president and cabinet ministers), Legislative (elected members), Electoral Tribunal (takes over police and all government functions dealing with elections before each election. Members are usually unpaid volunteers who are judges. This is to ensure all elections are completely democratic and free.) There are three levels to the court: district, appellate and supreme.

The Costa Rican legal system is based on the French Civil code and Spanish civil law, which establishes written codification of its laws. Laws passed by the Costa Rica legislature are the primary source of law. Many of the laws passed by the legislature are compiled into Codes each of which governs a particular area of the law.

4. Does each Act apply to all citizens of that country?

See above.

ii. What is the history of the legislative regime, has it been recently amended?

On September 2011, Costa Rica adopted comprehensive data protection law, the Law on the Protection of Individuals Against the Processing of Personal Data, which might reach whistleblower hotlines but has not been known to be interpreted to reach the hotlines. A new data protection Authority was created by this law, the Citizen’s Data Protection Agency or Prodhab within the Justice and Peace Ministry, which will enforce the law. The law requires the registration of databases holding personal data, establishes a data protection authority, and penalizes personal data mishandling. It does not require data breach notifications to regulators or affected individuals.

In July 23, 2001, a group of editors presented a proposal to revise the press laws and one in particularly was pending before the Legislative Assembly. The proposal introduced the “actual malice” standard, which requires plaintiffs to prove not only that the published information is false, but also that the journalist knew or should have known it was false at the time of publication. It also provided for the protection of journalists’ sources. By the end of the year only one of the changes was accepted – the elimination of the crime of disrespect – a little used provision that imposes a jail sentence of up to two years for offending the honor of a government official.

As of 2007, and as far as mechanisms for reporting threats or retaliation are concerned, it must be pointed out that although there is no specific process for cases of corruption, Costa Rica legislation generically criminalizes threats made to a public official or a private individual. Costa Rica also has a comprehensive draft law on the matter, which has passed the preliminary stages, and which can be reviewed by the Committee (Inter-American Convention against Corruption) once it becomes law.

1. If so, how was it amended?

See above.

2. What is the reform attempting to cure?

Criminal defamation.

Procedures for reporting/handling threats and retaliation.

iv. Are there currently any proposals to reform the legislative regime?

See above.

1. If so, what are the proposed reforms and what at what stage are they?

See above.

b. Case law

For each Relevant Area:

i. What are the general principles at law (for example, at common law, there might be causes of action available outside of legislation)?

  • protection of journalists’ sources is a necessary condition to guarantee freedom of information.
  • see below for important international case law developed by the Inter-American Court of Human Rights (and the Commission’s findings)

ii. What are the leading cases supporting the general principles?

See below.

iii. What are the leading cases that interpret each operative provision mentioned in (2)(a)(ii) above? Does the interpretation confirm or alter the reading of that operative provision?

The Supreme Court of Justice ruled in 2008 that the protection of sources is “a condition sine qua non to guarantee freedom of information” which “is structured as a fundamental right that, moreover, is an institutional guarantee of the right to information in a pluralistic and democratic society.” More precisely, the Court states that the object of the secret revealed to the journalist by his informant “is not the content of the information that forms the news … in that, its purpose is to be published or disseminated, therefore there is no secret on the news, but … on the identity of the informant and on every other piece of information – document in any format, notes, recording, filming, etc. – or circumstances that may contribute to his/her identification.”1

In April 2008, the Constitutional Chamber of the Supreme Court of Justice denied Former President Miguel Angel Rodriguez’s request that the court force La Nacion newspaper to turn over documents to him that had served as evidence for a publication citing his involvement in a corruption scandal. In the case, the Constitutional Chamber remarked that “the fundamental right of journalists to maintain the secrecy of their sources […] protects […] the social conglomerate that owns the right to receive information […] as such, this right guarantees a free, responsible and independent press”. Nevertheless, the Office of the Special Rapporteur for the IACHR expresses concern that in the same decision, the tribunal sustained that “in the case of criminal jurisdiction, eventually and in certain fact situations, the right to maintain the secrecy of sources must cede in order to facilitate criminal investigations and the guarantee of certain fundamental rights. Absolute protections do not exist with respect to the secrecy of the social communicator’s information sources. […] The circumstances and situations in which secrecy of sources must yield before the necessities imposed by a criminal investigation will continue to be defined on a case by case basis by this Constitutional Tribunal”. The Office of the Special Rapporteur recalls that Principle 8 of the Declaration of Principles establishes that “every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”2

The Costa Rica Constitutional Court upheld the concept of confidentiality for journalists, which is not specifically defined in legislation. This leaves open the possibility that it can be removed in certain cases when a criminal judge decides to do so.

On August 27, a criminal court in San José dismissed the case against two journalists and two prosecutors accused by former president Rafael Angel Calderon Fournier of revealing secrets and not respecting the confidentiality of legal documents in the criminal embezzlement case against Calderon.

On August 29, the newspaper La Nacion decided to make a complaint about the conviction of two of its journalists to the Inter-American Commission on Human Rights. The reporters were acquitted of defamation, but required to pay civil restitution to a policeman, who, according to statements by the Public Safety Ministry, was under investigation for extortion. The minister confirmed to journalists that the assistant police chief of a region in the south of the country was told to take a vacation while being investigated for alleged extortion in connection with the illegal transport of liquor. In the trial, the minister admitted that he was the source of the news. It was also shown that the police official in the area faced trial for extortion. However, the debate established an inaccuracy in the information the minister said he had provided: allegedly the extortion did not have to do with the illegal transport of liquor but the stopping of a car with no license plates. The lower court ruling said that the journalists did not commit a crime, because the minister was the source of the published report. However, the judges insisted that the police officer’s reputation had been harmed because of erroneous information, and, according to the Civil Code, anyone who harms someone has the obligation to make him whole. The minister was convicted along with the journalists. The verdict is a unique threat to press freedom in the country, because it opens the way to apply civil sanctions to journalists in trials in which there are few defense opportunities. In criminal cases the conviction must be based on malice. In civil cases, it is enough to demonstrate any level of harm to the plaintiff.

As of 2008, the Law against Corruption and Illicit Enrichment only offers a guarantee of confidentiality for those who denounce internal instances. It is considered weak and far below what is required by international standards. The Banco Popular case is not unique to Costa Rica, and companies have done similar things in the past. In 2008, the directors of the Banco Popular knew of a plan by its auditor to investigate how a journalist from La Nacion received information about a manager receiving $17 million in entertainment expenses. The company claimed that it never approved of an investigation of any type of its employees who may have whistle-blown to the press. They claimed the only reason for the investigation was to learn of its internal procedures. (papers referred to this as a witch hunt).

Jose Luis Jimenez Robleto

In Feb. 2010, the Committee to Protect Journalists called on the Costa Rica legislation to remove criminal defamation provisions from its penal code (penalty of up to 120 days in prison for defamation in print media) after a Supreme Court decision eliminating prison terms from its 1902 Printing Press Law. This decision came after the court reviewed a case against the reporter Jose Luis Jimenez Robleto for his story alleging embezzlement and then received 50 days in prison under the law. His conviction was overturned by the Supreme Court. This was considered to be a very big change in precedent. Advocates were hoping for this to be a step toward eliminating criminal defamation totally in Costa Rica, and to eliminate defamation provisions from its penal code.

Under Costa Rica penal code anyone who libels, slanders, defames, or reproduces offensive statements against someone, even public officials, can be fined or placed on an official list of convicted criminals, but not imprisoned.

Mauricio Herrera Ulloa

In September 2001, the Inter-American Commission of Human Rights issued provisional measures ordering Costa Rica authorities to stay certain sections of a 1999 defamation verdict against the daily La Naccion and one of its reporters, Mauricio Herrera Ulloa.

In Nov. 1999, a Costa Rica Penal Court convicted the journalist of criminal defamation based on a corruption report and ordered him to pay damages to a former diplomat, Felix Przedborski. The Costa Rica Supreme Court rejected La Nacion’s appeal prompting the journalist’s petition to the IACHR, which order the Penal Court to stay its ruling so that it could study the case. When the court refused, the Commission filed a complaint with the Inter-American Court, which then issued a stay.

In 2001, the Commission was still studying the case. In May 23, the IACtHR confirmed the ruling ordering the Costa Rica government to suspend the verdict and later issued provisional measures ordering Costa Rica authorities to keep the journalist off the country’s list of convicted criminals and instruct the paper not to punish the Penal Court’s ruling until the IACHR resolves the case. This was the first time the Court had taken such an action concerning freedom of expression. The Costa Rica court complied. Finally, the IACtHR found that the conviction was disproportionate and that it violated the right to freedom of expression, and ordered the nullification of criminal proceedings against the communicator.

The IACtHR held that the penalties constituted a violation of the freedom of expression protected by the Inter-American Convention on Human Rights. In its judgment, the Court highlighted the dual dimension — individual and collective — of freedom of expression, the crucial democratic function of this right, and the central role of the communications media. After recalling the requirements set forth in the Convention for restrictions to freedom of expression to be legitimate, it concluded that Mr. Herrera had been subjected to the excessive and unnecessary use of the punitive power of the State, which failed to respect said Convention requirements. It took into particular account that: (a) Mr. Herrera was a journalist who was conveying facts and opinions of public interest; (b) the exercise of his right resulted in statements critical of a public official in the exercise of his duties, and the official was exposed to a greater degree of criticism than private citizens; and (c) Mr. Herrera had limited himself to faithfully reprinting information published in the foreign press on the conduct of a Costa Rican diplomatic official. The Court emphasized that his criminal conviction had had a chilling effect on the practice of journalism and on debate concerning matters of public interest in Costa Rica, stating that “[t]he effect of the standard of proof required in the judgment is to restrict freedom of expression in a manner incompatible with Article 13 of the American Convention, as it has a deterrent, chilling and inhibiting effect on all those who practice journalism. This, in turn, obstructs public debate on issues of interest to society.” Consequently, it found Costa Rica in violation of the Convention and ordered that it make reparations for the violation of article 13 of the Convention, in the form of setting aside the conviction, and paying compensation for non-pecuniary damages to journalist Herrera Ulloa.

iv. Does the case law concerning an operative provision conflict with the leading cases on general principles?

See above.

v. Are there currently any cases on foot that could alter any of the above?

None found.

c. Parliamentary / Government enquiries and Enforcement Institutions / Bodies that undertake these investigations

For each Relevant Area:

i. Have there been any recent (during the last 10 years) parliamentary or governmental enquiries?

NA

ii. Who were the key players of that / each enquiry?

NA

iii. If yes, what was the scope of each parliamentary or governmental enquiry?

NA

iv. If yes, what were the recommendations?

NA

v. Who is the main regulatory body of the Relevant Area?

Guidelines for the Care of Complaints Raised before the Comptroller General of the Republic

No. L-2-2005-CO-DFOE

Chapter 1 – General Aspects

Article 1 – Objective: these guidelines are intended to inform people of the requirements that must be met to complain to the Comptroller General of the Republic and the procedure which will be employed to assess whether it is appropriate to verify the facts that are reported.

Article 2 – Realm of Competence

Article 8 – Request for Clarification: In the event that the Comptroller General finds vagueness in the facts, it will be allowed no less than ten days for the complaint to be completed, otherwise it will be filed or will be rejected without prejudice so that it may be filed later with new facts.

Article 10 – Addressing complaints

Article 11 – Follow up:

Article 12 – File and discrimination of the complaint: complaints will be rejected or filed when some of the following conditions occur:

Article 13 – Foundation of the Act of dismissal or file complaints: The rejection or filing of complaints will be made when duly motivated when credited by valued arguments used to make the decision.

Article 14 – Communication to the informer in cases of signed complaints

Article 15 – Internal procedures

Criminal Procedure Code

Article 286 – Attributes of the Judicial Police: The judicial police have the following attributes:

  1. receive complaints

In 1999, Costa Rica realized the need to provide a better functioning witness protection program. Although, at the time the relevant government bodies lack the personnel and public trust to effectively protect witnesses.

Ley de Proteccion de victimas, testigos y demas intervinientes del proceso penal (Feb. 11, 2009, Law No. 8720)
  • when this law came into force the Office for Assistance and Protection of Offence Victims was opened – Oficina de atencion y proteccion a la victimas del delito, OAPVD) – aimed to receive and assess requests, and establish the necessary protection levels
  • opened in May 8, 2000 as the Office for Assistance of Victims (Oficina de Atencion a la Victima)
    • the assistance was mainly psychological and in 2009 social and legal assistance was extended
    • created two sectors – victim assistance and victim protection – that remain connected despite the confidentiality with which they must comply
  • the office’s victim protection program was started in 2006 because of the emergence of an “organized crime phenomenon” and its risk.
Regulations for the Transmission of Denouncements and Preliminary Investigations in the Central Bank of Costa Rica and its Organs

see scope of it’s investigative work

1. Are they well funded?

Ley de Proteccion de victimas, testigos y demas intervinientes del proceso penal (Feb. 11, 2009, Law No. 8720):

  • when the law came into effect the office was able to obtain funding and funded by a tax of 8% on securities issued in foreign currency, which would generate an annual sum of approximately 2,000 to 3,000 million colones

2. What is the scope of their regulatory activity?

OAPVD:

  • Main services – offers victims psychological assistance, home surveillance, personal protection by a bodyguard, a a change of home and employment
  • while witnesses/victims are in the protection program, their rights include receiving death and injury insurance and help to leave their country and establish residence abroad (Art. 9) In exchange for protection, they must maintain strict confidentiality and respect the protection measure by providing to the authorities information on the case under investigation (art. 10) The laws calls for review of protection every six months (art. 12B, 9, 10)
Regulations for the Transmission of Denouncements and Preliminary Investigations in the Central Bank of Costa Rica and its Organs

Article 7 – Course for analyzing complaints

When the complaint is filed before an internal audit, further legal consultation is required specific points should be followed (outlined in the law). When the internal audit recommends to the Administration or the competent authority, the need for an administrative procedure, may take whatever action it finds appropriate in determining how to handle the complaint. (See General Law of Internal Control, Law 8292).

Article 8 – Terms for handling complaints

In the case where complaints are filed with the Administration by an internal audit a specific time shall not pass under which specific procedures must be followed.

Article 10 – Objective of the Preliminary Investigation

The objective of a preliminary investigation will be for the collection of necessary information, defining alleged acts, and to review procedures for the possible offenses.

The result of the preliminary investigation will serve as a source of the information needed to bring an administrative procedure or to file a case.

Article 11 – The area charged with the Preliminary Investigation

Article 12 – The investigation

The preliminary investigation should conform with the following procedures…

Article 13 – Results of the investigation

The Area Culture Management and Labor Climate, its equivalent in the decentralized bodies of the Central Bank, or the corresponding internal audit shall furnish a written report on the results of the research that must contain at least the following:

  1. the motivation of the original investigation
  2. a description of the situation being investigated
  3. the results of the investigation with as many details possible, and those responsible
  4. indicate the possible damages or damages that could have come from the situation investigated, indicating its amount, origin and responsible. Damages not identified at the time of the report’s issuance should be indicated and the reasons for it.
  5. Signature of the manager of the designated investigative area, as well as of the official who carried out the investigation. In case of the corresponding internal audit,the report shall be signed by the Auditor or internal Subauditor -the superior of the research area.

Article 14 – Deadline to submit the report

The report produced by the investigation will be sent immediately to the Legal Department of the organ to which it belongs, which, within 5 working days from its receipt will be analyzed, and unless the case is returned for expanded or clarified research, shall decide on the following aspects:

  1. reasonableness of the opening of an administrative procedure or the file of the case
  2. in the case where it is recommended that an administrative procedure should be opened, it will have to indicate the name and ID number of the person(s) to be investigated, the supposed facts that happened, lacking any civil disciplinary or responsibilities which correspond to the above mentioned facts, as well as the sanctions and if possible the amounts that might be imposed if the facts are verified
  3. If the administrative procedure is ordinary or summary
  4. the competent official to dictate the initial and final act of the administrative procedure and to act as its organ maker.

If the officer under investigation is located in the Judicial Consultancy that must assess the outcome of the preliminary investigation, the [Administrative Superior] will request the respective evaluation to be done by any of the legal bodies comprising the institution following a role that should be respected.

The criteria under which legal advice is rendered will be part of the record, and if the report recommends the initiation of an administrative procedure must be referred for a decision, along with a draft initial acts, to the competent authority under which it will be decided.

Article 15 – Officials appointed by the Board of Directors

In cases where persons being investigated are appointed to the Board of Directors, the preliminary investigation will be conducted by persons outside of the institution, appointed specifically for that purpose.

Article 16 – Reports of internal audits

Preliminary reports prepared by the internal audit which recommend the opening of administrative procedures shall be communicated to corresponding Management, Board or the administrative superior, and its proceeding shall be in accordance with provisions in this regulation and in Articles 36, 37, and 38 of the General Law on Internal Control.

3. What is their track record?

The Office for Assistance and Protection of Victims has 15 offices and in 2010, 11,682 victims requested assistance from the OAPVD, which represents 9,000 victims more than in 2009. Of those in 2010 – 7,000 were women, and the majority of the victims were between 18-34 years old (40%). Threats, homicides, armed assaults, thefts and attempted homicides are the crimes most often registered in the protection program. The assistance program reports mainly of sexual abuses, but also of threats and assaults with an edged weapon.

The Comptroller’s Office, the Ombudsperson’s Office and the Attorney General of the Republic, have electronic mechanisms to receive claims or report corruption cases. There is a small but permanent staff in the Comptroller’s Office, the Ombudsperson’s Office and the Office of the Attorney General of the Republic. Many of the denouncements are never fully investigated by authorities. In some cases, the authorities expect the servant to bring the evidence, and the servant expects the authorities to start collecting evidence. Also, faced with specific suspicions, the authorities commonly opt for pointing out the administrative irregularities but do not go beyond that (e.g., opening up bank accounts or using more sophisticated investigation techniques). An example is the recently uncovered case of Alcatel bribes. Although they had suspicions, the authorities limited themselves at the time to pointing out the administrative irregularities of the contracts, and did not consider the possible cause of so many administrative irregularities.

As of 2007, in some recent cases, civil servants have gone to the Supreme Court (Sala Constitucional) because they made statements or gave documents to the media and their supervisors initiated formal processes against them or informally punished them. Also, verbal orders to refrain from making comments, particularly negative ones about the institution, are common. Many servants experience negative consequences such as threats to send them to lower positions, having relevant tasks taken away from them, and receiving verbal messages warning them to stop making trouble. A recent example, published by the media, involves a state bank that started a process against an auditor who gave information to a reporter about certain irregularities inside the bank. The bank even hired private investigators to investigate the reporter.

There are a great many unexplained delays in investigations of public sector corruption and in many cases, the internal reporting mechanism initiates investigations; however, the cases remain unresolved.

“Between April 2004, when the Office of the Public Ethics Prosecutor began to function, and November 1, a total of 120 complaints against public officials for acts of corruption committed or lack of transparency in the exercise of their functions. In each and every case, care has been taken to maintain the confidentiality of persons who in good faith report corrupt acts, and so far there have been no threats or reprisals against whistleblowers in any of the investigations. It is thus unnecessary to apply any witness protection mechanism.

“As can be seen in the figure, 29 complaints were received in 2005 and 37% of them were filed or dismissed. In 14% of the cases a recommendation was made and a further 14% were redirected to other institutions, 21%were rejected and the remaining 14% are still under investigation. The identity of informants was kept confidential and it was not necessary to apply any mechanism to protect either the witnesses or the whistleblowers. Between the beginning of this year and November 1, the Office of the Public Ethics Prosecutor received 53 complaints. The majority of them (64%) are still under investigation in an effort to determine whether or not a public official was effectively involved in an act of corruption or lack of transparency. To date it has not been necessary to take any measures to protect witnesses or whistleblowers from threats or reprisals. Additionally their identity was kept confidential.”

The Committee considers that the foregoing information indicates that in Costa Rica a significant number of complaints are being received and processed with respect to acts of corruption. However, the Committee notes that the above results do not indicate the results of any requests for or measures taken to protect whistleblowers. In this regard, the Committee notes, as pointed out by Costa Rica in its response and transcribed above, there have not been any threats or reprisals against whistleblowers, and as a result, there has not been a need for witness protection measures.

Notwithstanding, the Committee considers that once provisions regulating whistleblower protection process have been implemented, it would be useful for Costa Rica to consider compiling results on the operation of the system.

In 2009, the Committee recommended that Costa Rica implement a simplified whistleblower protection application process.

e. Key Players

For each Relevant Area:

i. Which organizations are the leading think tanks / NFPs / activist groups that are either agitating for reform, publishing material or otherwise providing relevant commentary?

Frente Ciudadano contra la Impunidad

In July 2001, a veteran journalist, Parmenio Medina Perez (plus a producer and host of the weekly radio show “La Patada” (the Kick)) was assassinated – one of the first journalists to be killed in the countries history. The journalist had received many threats in the past due to his on air accusations of corruption in public offices and in a Catholic radio station and he had been under police protection but had asked for it to be lifted just days before his death. Although there was an investigation nothing came of it. A civil society organization was formed shortly thereafter called the Frente Ciudadano contra la Impunidad (Citizens’ Front against Impunity). Many suspected political, business and religious influences were preventing any resolution to the investigation. A survey of journalists was done at the time and over half of 97 journalists polled said they had received some kind of threat during their careers – most with defamation suits.

In December 2007, two men were sentenced to 35 years in prison for Medina’s murder. The trial took two years and was the longest in Costa Rica history. Key witnesses and the prosecutor were threatened during the process.

ii. What is the apparent influence of the organisation? What are its institutional / commercial / public connections?

It appears that the Frente Ciudadano has little to no real influence any longer. The website does not provide very much information.

iii.  Links

Frente Ciudadano contra la Violencia y la Impunidad – http://frentepablochilian.com/index.php/home

g. Media

For each Relevant Area:

i. Which media organizations are agitating for reform, publishing material or otherwise providing relevant commentary? NB: some discretion here is required, only media organizations with an apparent level of public influence need be profiled.

La Nacion is a media outlet whose journalists have been involved in many cases listed above.

ii. What is the apparent influence of the media organizations? What are its institutional / commercial / public connections?

La Nacion is highly visible and supports its journalists. If and when this becomes relevant I’ll do further research.

iii. Links

http://www.nacion.com/