Part One
When you come to Costa Rica, your mind and all your experience is based on your own countries laws and regulations, for sure you understand your system and the know hows of it, but what happens when you are in a new country and get into trouble, do you have any idea of how will you be treated if you become a prosecuted person in Costa Rica. I will try and explain some of the basics.
We have a investigative criminal system, in which there is four different parties involved.
FISCAL: (Something similar to the District Attorney of the
This person is a titled Lawyer, and has assistants that help him in his duty, he is entitled to determine what is the qualification of the crime, and decide if it is prosecutable or not, depending on various factors:
- Time frame available: If the crime is very old, its punishment might already expired (That is determinate by the highest penalty applicable to the specific crime)
- That the crime is so insignificant that it would be more expensive to prosecuted than to forget it
- That the issue is of organized crime, and a deal is made with a little fellow and immunity is granted in order to obtain his or her testimony against the big guy.
- The offender has suffered already a punishment so severe that imposing a new penalty would make it disproportional to the crime (This is called Natural Penalty)
After analyzing all this, plus the evidence, testimonies, etc, he presents his case before the Penal Judge of the preliminary phase (meaning of the penal process), for him to decide if the matter should go to trial or not
THE OFFENDED: He can help the Fiscal to obtain all the evidence necessary to prosecute the offender, he can also obtain remunerative indemnity for the damage made to him in this same process, so the Fiscal will ask the Offended if he want to become Querrellante, to help him prosecute and Actor Civil, to get indemnity for this damage.
THE DEFENSE: Defense lawyers are supplied by the state if you do not have money to pay for one, if the state can demonstrate that you had the money necessary to pay for your defense and did not, they will charge you with the fees for the Defender they provided for you.
THE JUDGE: He will decide if, as I already mentioned, the matter presented to him has any possibility of going to trial, analyzing the evidence presented by the Fiscal, and controlling the legality of the process and the evidence obtain to support the Fiscal Case, he acts in this phase of the process as a policeman, controlling the legality of the procedures.
PRELIMINARY HEARING:
After the investigation is over, and the judge has enough evidence to consider there is a possibility to present the case to trial, he call upon a preliminary hearing to hear the arguments of all the parties before deciding to send it to trial or not.
The Fiscal, the Offended if he decided to act as Querellante or Actor Civil, and the offender, will present themselves before the judge and present their case to him. Also and as part of the normal procedure, if the crime allows a deal or negotiation to be made by the offender and the offended. Before starting the hearing, and if the type of crime allows it, the Judge will asks the parties if there is any possibility of settlement between them , or if there is any proposition by any of the parties for the other to analyze.
If a settlement is reached between the parties involved, and the Fiscal also considers he is satisfied with the agreement then they presented to the Judge for his consideration, after analyzing all the issues, the Judge will approve or disapproved the settlement , propose different conditions he thinks necessary for the agreement, and make his decision.
If the settlement is approved then the criminal case is closed, if the agreement has time terms to accomplish as part of the settlement, then the case will closed when the time conditions are reached.
If there is no agreement, each parties will present its case before the Judge, and he will decide if the case goes to trial or not, normally in a lapse of two days after the hearing.
There is other ways to stop the criminal case, (Only in crimes that have less than three years in prison as their maximum sentence, or that are classified as De Accin Privada, in English of private prosecution) and they are:
Process Suspended on Trial Basis: This procedure will allow the offender to stop the process against him, by doing community services for a trial period, in which he will demonstrate that he is going to continue his life without more criminal offenses. During the trial period the case against him will be suspended and will only be reactivated if he fails in his tasks for the community.
This person will require also the following
To reside in an specific place
Abstain of consuming drugs or liquor
Have a stable work place
Not to carry guns
Total retribution of the damage made: If the crime allows it, the offender can avoid criminal prosecution if he pays what ever damage made to the victim, This can also be solicitated in the preliminary hearing before the Judge, he will ask the victim if he agrees to drop all the charges upon an economical retribution of the damage made, and if he agrees then a settlement is produce.
This is the first of a series of articles we will provide in following editions, This exposition of procedures, is as a general idea, it does not touch technicalities and issues that are not understandable by the general public, that is the intention of it. In any case in this matter you should always get proper counseling, never attempt to resolve criminal issues by your own, always find a professional to represent you, also remember to ask the professional how many year of law practice he or she has and what is his expertise in this area o law. No all lawyers specialize in Criminal Law, not all general lawyer know about criminal law, because their area of expertise is other different. Get the best advise available for your money.
If you have any questions about the article or any other questions of legal matters, please dont hesitate in calling 255-1592, or fax 255-0061, all the questions will be answered.
Rmulo Pacheco S.
Attorney at Law
E-Mail- romulo@residencycr.com
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I have been a witness to the information published in relation to the possible elimination of residency status and all the information regarding new requirements for the already approved residencies.
About changes in the law, there are several projects already in the congress that display different ideas of immigration politics. Some change, eliminate or modify the actual law. We are lobbying for a project that guarantees the conservation of the actual residency statuses. It is my personal opinion that the actual statuses should stay, with only some minor modifications in them, the government will be able to avoid un desired persons or big migrations of one country at a certain moment in time. The reality is that none of this projects will be approved before this government is over, so we do not know if the next government will pursue the same objectives in this matters as this one has done.
One thing is very clear, the country is experimenting a lot of changes not only in what relates to immigrations politics, but telecommunications, free trade agreements, and anti-corruption decisions. All of us who consider this is a great country, not only like in my case because I had the blessing of being born in it, but also the ones that having all the world to choose from, they choose this one. I believe that the decisions taken by the central government have sense and is oriented to protect our society and to improved the rules we all have to follow as citizens and residents of this land. It is important to notice that things are not handled very objectively sometimes and many decisions in every field mostly depend on the mood of the person processing Rader than on the rules applied.
Based on this idea and in regards to the residency procedures, the situation is the same, the Immigrations Board is trying to unify criteria applicable to new residencies and renewals. So as many of us know, in September of 2002, there was a big shock in the processing of residencies, all applications where centralized to be processed in only one office. The office that the Costa Rica tourism board held to process Pensionado and Rentista Status was closed, and all documents are now required to be presented before the Immigration Board.
This eliminated many wrong procedures permitted for years and years and that where never allowed by law, but only by use and time. After this moment in time the law started to be applied correctly, many people felt like there had been a change in the law because there applications and what had been applied to process them, was corrected to comply with the law. There was no change in the law but only the correct compliance of the process with the law as it was originally written long time ago.
Now you might ask, where do I stand, who do I believe and what do I have to do, if anything to continue, renew or start my residency. Well lets try to give you an idea and answer as many questions as possible.
The new comer:
You that just arrived and decided you want to live here, To apply for any type of residency you have to bring the respective documents authenticated by the consul of Costa Rica from your country of origin. In every case, If you have what is required to apply for Rentista or Pensionado Status you can do it here thru us. If you are investing or opening a business you can apply here too. If not all other applications have to be presented before the consul of Costa Rica in your country of origin, either personally or by power of attorney. In this case it is also necessary to name a lawyer in the Country to act on your name once the application has arrived to the immigration Board here.
The old resident:
You that need to renew your residency If you are a permanent residents, investor and corporative resident you have all the requirements exactly as the law always has required. The Pensionado and the Rentista might have a slight change in his or her documentation needed, This because almost all of your applications where presented before the Costa Rica Tourism Board.
This office committed the original mistake and allowed the non authentication of official documents, so now you might find that in order to renew your residency or to change to another status, you have to authenticated your personal documents before the Consul of Costa Rica in your country, and you did not have to do this when you originally applied.
Why !!!! you might ask, the wrong interpretation of the law made by the Residencies Office at the Costa Rica Tourism Board, allowed applicants to present the birth certificate, marriage and police record with no authentication by the consul in the country of origin, all that office required was the authentication from a local notary public. This "door" was used to expedite residency applications, and in good faith all lawyers and residency processors used this "door" to the advantage of the applicant, and why not, it was permitted by this office, it saved time and money ( $ 40.00 USD per document ), it was good for the applicant, BUT along with the good intentions came the bad reputation persons and outlaws that took advantage of the "Door" to forfeit their documents, mostly the police records.
Once the immigration authorities realized that this "door" was not accomplishing the original intention of it, but now it was allowing bad people to become residents and taking the opportunity that now all applications where centralized in one office, then eliminated this authorization to try to avoid unwanted people and the bad reputation of our country at international level. Also because it was not permitted by the law from the beginning and only started because of a bad interpretation of the Old Tourism Board Office.
So now residents, many of you will find that you have to send your documents back home to be legalized by the consul, before you are able to renew your residency. Dont blame it on your processor or Lawyer, or think that law has changed or that you are not wanted, just think you are helping to correct the mistake need to avoid un wanted people. It is in all of our best interest to eliminate this type of unwanted residents.
Give us a call to correct your residency if it is required, or to answer your questions, At Pacheco Marin & Asociados, we are ready to help you with this issue.
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This time I think is a good idea to go over the situation of the preganant worker in our country, and the first thing we have to do is give a little historical anlisis of who this special tipe of worker has been considered in Costa Rica throu time:
Before the Labor Code of 1948, the relationships of workers where regulated by the articles 1169 to 1174 of the Civil Code, in relation to the renting of services (this did not contemplate any type of protection for the pregnant worker) and by other special regulations as the ones in the Infance Code. In this last regulation the following laws where included, that had the intention of protecting in some way, this group of workers in the following way Article 4: Th women in pregancy that have a position in the public administration will have a permit of four weeks after birth.
During this period of time the replacement will have the condition of interin, but only the married women that have this situation will have her complete salary., Article 7: In case that the woman stays out of work for a bigger period of time of the one given by this law, or by medical certification cannot be declared layed off. From the transcriptions made we can think that some advantages where given to the pregnant worker like permit with salary, or the right of not being layed if she became sick because of given birth, nothing was said about the lay off of the pregnant women.
Not untill 1943, with the issuing of the Labor Code, the cited regulations from the Inface Code where abolished and the ones from the Civil Code also that a bigger protection was given to this type of worker, as it said in article 94 of the new lay It is prohibited to the employer to lay off a worker because of pregnancy or milking. Any justified lay off of this type of worker has to be previously notified to the Labor Authorities, As this was written the prohibition was limited only to the preganancy o milking causes, any other cause could be notified and executed.
Now we have to remember that one of government priorities, is to protect the mother and the child ( article 51 of the Constitution) reason that gives fundament to the regulations that have been trying to protect the preganant worker since it was issued in 1948.
This is why we have been incorporating to our laws, internationationaly accepted fundamental dispositions that have the intention of protecting women, as it is the case of CONVETION FOR THE ELIMINATION OF ANY TYPE OF DISCRIMINATIONS AGAINST WOMEN, signed by United Nations the 18 of december 1979, and ratified by Costa Rica in 1984.
Taking what was approved by this International Convention and with the idea of avoiding the making of false Just Causes of dismissal for the lay off of the preganant women, the government issued The Law for the Promotion of the Social Equality of Women in 1990, with the intention of protecting and wideining the protection in article 94 of the Labor Code, with says Article 94: It is prohibited to the employers to lay off any worker that is pregnant, or that is in here milking period, only by just cause originated by grave fault in her duties against the employeer as said in article 81 of this Law.
Also article 94 bis says:
Article 94 bis: The pregnant workers or in milking period that is fired againts what has been said in the previous article, could ask a labor judge her immediate re-instalment in full use of all her rights, once the claim if filed the judge will give a hearing in the following three day to the employer in order for him to defend his case, after this hearing and in the following five days he will order immediate re-installations if he considers correct, and also will impose to the employer the payment of the salaried not paid, having encarcelation as penalty for not following the court orders.
So Making sense of this, in the case that you fire a worker without just cause, that happens to be preagnant and you knew about it, this is what you have to pay:
The salaries pending from now untill the eighth month of preganacy
The salaries of the three months previous to the birth
The salaries of the three months after the birth
Cesanta
Preaviso
Vacaciones
Aguinaldo
The last four items we explained in previous articles.
So be prepared to reach to your pocket in this case or otherwise, follow and respect the law for the pregnant worker, help the new born and the mother have a safe birth and give the amount of time necessary for this pourpose, remember that nither you or me would be here is women did not get pregnant, is the law of nature and everybodies right.
If you have any questions please call my office at 255-1592 I woulb be glad to answer them,
Thank You
Rmulo Pacheco
Attorney
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