Costa Rica Expertise LLC

Victims have right to express views

By Garland M. Baker
Special to A.M. Costa Rica

There may be good news for those who have lost their property or other assets to fraud in Costa Rica.

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Believe or not, the courts are divided on who should be protected. Here is a little informational background:

Most jurisprudence is decided in the Corte Supremo, or superior court. The court is divided into four sections. The first court, called the Sala Primera, decides civil matters. The second is called the Sala Segunda, and is the labor court. The third, the Sala Tercera, is the criminal court. The fourth is the Constitutional Court, called the Sala Cuarta or Sala IV, and by its name it is obvious that it decides constitutional issues and that its decisions can override a law made by another of the courts.

The civil court jurisprudence has historically protected third parties in fraud cases while the criminal court has protected victims. What does this mean? Here is a true story to illustrate the situation.

Mary, let’s call her, came to Costa Rica after working a lifetime as a teacher in Colorado. She only had $100,000 to her name and a teacher’s pension. She purchased a piece of property on the beach. In building her home, she worked with several contractors and attorneys and signed many different papers, mostly in Spanish. Mary took a little Spanish in high school, so she didn’t get any of the documents professionally translated.

Upon returning from a trip to the States she found that her beautiful piece of property and cozy house were sold out from under her. She hired attorneys and more attorneys but they were no help.

The property was sold to John, let’s call him, by one of the people who was originally involved in helping Mary. John, too, was a teacher from somewhere in the United States with about as much money as Mary. Basically, he put his life savings into the deal. John purchased the property in good faith. He had never met Mary and got clear title to the land. He took the word of his legal counsel that everything was in order.

Now, who should be protected?

The civil court says John because he was a party acting in good faith. The criminal court says Mary because she was the original owner and a victim, like so many others in Costa Rica, to blatant fraud.

On Sept. 13, 2002, someone filed an action in the Sala IV saying that the criminal court, the Sala Tercera, is wrong and that third parties should be protected.

In Costa Rica, whenever a constitutional case is presented in the high court, anyone with a legal action can also attach themselves to the case so they can present their views to the court.

Even though this goes against victims’ rights, the case was great for victims because it gave them a place to express their beliefs on which way the law should fall. However, very few people who had been swindled knew about this court case and therefore made themselves parties to it.

Friday, the Court Record Newspaper, the Boletin Judicial, reported that someone else has filed another appeal saying the civil court, the Sala Primera, is in error.

Victims now have a chance to express their views by adding their names to the case as coadyuvantes, or in English, coadjutant, meaning a helper or assistant to the case.

Many in the property and legal business believe that original owners as victims should be protected and that the Sala Tercera, the criminal court, is correct for one simple reason: There are more victims who have been defrauded in Costa Rica than third parties.

Also, from personal experience in advising foreigners, the writer of this article has found that there really aren’t too many Johns who are truly innocent. Most, not all, but most, third parties are one way or another involved in a scam.

Should the constitution decision protect the original owners and not the third parties, both Mary and John will be protected. Under the view of the criminal court, Mary will have the right to her property, and John will have the right to collect his loss from the government of Costa Rica because the government should be responsible for those who misuse the system to hoodwink others.

It is easy to laundry property and/or asset transfers through legal paperwork in Costa Rica. But a little bit of homework can send up red flags to a purchaser. Purchasers of anything in Costa Rica should do their own homework and not leave it up to anyone else, especially attorneys.

If Costa Rica decides to protect third parties and not victims, those involved in such cases fear that the country will be even more of a paradise of the wanted and the unwanted of the world, not to mention its own homegrown crooks.

Costa Rica should protect original owners in property and asset fraud and send a message to the rest of the developed world that it is moving away from its Napoleanic version of Roman law.

Garland M. Baker has been a resident of Costa Rica since 1972 and is now a naturalized citizen. He provides multidisciplinary professional services to the international community. Lic. Allan Garro provides the legal review. He has been at the forefront of these legal cases dating back to 1995 and is an integral part of the first supreme court case fighting for the rights of victims. Reach them at [email protected] Baker has undertaken the research leading to these series of articles in conjunction with A.M. Costa Rica. Copyright 2004, use without permission prohibited.

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