A common myth about Costa Rican law is that the defendant in criminal prosecution is judged “guilty until proven innocent.” Nothing could be further from the truth. The myth seems to have arisen from people who ran afoul of the law and it is perpetuated by the ignorant who do not understand the system.
The Napoleanic Code of Latin countries does not begin with any presumption at all. Instead, the Judicial Police (OIJ from the Spanish acronym) is charged with impartially investigating the crime as objectively as possible. If a enough evidence is collected to indicate that a certain person is guilty, he is formally charged and, at that point, is best advised to obtain a lawyer. As in the United States and European countries, a legal counsel is appointed if the defendant cannot pay for an attorney.
Obviously, impartiality does not always function, any more than it always governs journalists’ reports. But the case must pass through a filter of the court. Our observation is that this filter often favors the defendant more than the prosecution and I have seen cases the prosecutors were ready to bring to trial dismissed at the request of the prosecution for lack of evidence.
Unlike Anglo Saxon common law, the case is not tried before a jury but before a panel of three judges. This is neither a defect or an advantage. Judges can be wrong as easily as juries. Their interpretations are apt slavishly to follow the letter of the law instead of the spirit of it, often an advantage for the guilty.
Otherwise, the trial proceeds in a form easily recognizable in most Western countries, with the prosecution presenting its case first, followed by the defendant’s side and finally the summations of both. In important or capital cases, the trial record is carefully reviewed automatically and it is not uncommon for a case to be sent back for retrial.
Capital punishment was abolished in the country in the late 19th century (by a dictator, no less, who stepped down after achieving his agenda!) and the average murder sentence runs about 25 years, although it may be shortened for the ill health or age of the convict. Often the same individual’s action will call for a criminal prosecution and a civil suit for damages. These two are carried on simultaneously, which often lengthens the duration of the legal action.
**Article from the archives of the American-European Real Estate Group**