Report No. 409 (2020) IACHR. Petition No. 1550-11 (Costa Rica)

• Year: 2020
• Case Type: Inadmissibility
• Respondent State: Costa Rica
• Court: Inter-American Comission of Human Rights

REPORT No. 409/20

PETITION 1550-11

INADMISSIBILITY REPORT

RAFAEL ÁNGEL CALDERÓN FOURNIER

COSTA RICA

OEA/Ser.L/V/II

Doc. 427

24 N. 2020

Original: español

Approved electronically by the Commission on N. 24, 2020.

Cite as: IACHR, Report No. 390/20. Petition 1550-11. I.. Rafael Ángel C.F.. Costa Rica. N. 24, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Hugo Santamaria Lamicq
Alleged victim:	Rafael Ángel C.F.
Respondent S.:	Costa Rica
Rights invoked:	Articles 4 (life), 5 (personal integrity), 8 (fair trial), 9 (principle of legality and retroactivity), 11 (protection of honor and dignity), 13 (freedom of expression) and 25 (judicial protection) of the American Convention on Human Rights1, in relation to its Articles 1.1 (obligation to respect rights) and 2 (duty to adopt provisions of domestic law)

II. PROCESSING BEFORE THE IACHR2

Filing of the petition:	J. 6, 2011
Additional information received at the stage of initial review:	N. 4, 2011, M. 13, 2012, N. 13, 2012, December 11, 2014, September 16, 2016, September 28, 2016 and O. 10, 2017
N. of the petition to the S.:	August 6, 2018
S.’s first response:	N. 6, 2018
Additional observations of the petitioning party:	September 20, 2019
Additional observations of the S.:	August 25, 2010

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Convention (deposit of the instrument of ratification made on April 8, 1970)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and international res judicata:	No
Rights declared admissible:	None
Exhaustion of internal remedies or origin of an exception:	No, in the terms of section VI
Presentation within the deadline:	No, in the terms of section VI

V. FACTS ALLLEGED

1. The petitioner claims the S. violated the rights of Mr. Rafael C.F. by criminally convicting him of the crime of embezzlement, through a process that did not follow proper judicial guarantees; and for not treating petitioner in a way that respected his personal integrity and health.

2. The petitioner indicates that the alleged victim was President of the Republic of Costa Rica from 1990 to 1994; and that in 2001, when he no longer held that position, he provided political and legal advice to the “Fischel Corporation” for the implementation of a project that consisted of the delivery of 32 million dollars by Finland to the government of Costa Rica for the acquisition of medical equipment. The petitioner indicates that, as a result of this transaction, in 2005 a prosecutor began a political persecution against the alleged victim and his family, and charged him with various crimes of corruption. It maintains that such action was intended to prevent Mr. C.F. from running again for the office of President of the Republic.

3. On O. 13, 2004, the Office of the Prosecutor for Economic Crimes of the First Judicial Circuit summoned Mr. C.F. to render an investigatory statement. The petitioner argues that said notification did not specify under what crime the alleged victim was being investigated, nor did it detail the existing evidence, limiting itself to stating that he should appear as a defendant in criminal case number 04-005356-042-PE. Petitioner alludes that on O. 21, 2004, Mr. C.F. went to the premises of the aforementioned prosecutor's office, where, after giving his statements, he was arrested and taken to the cells of the San José Judicial Investigation Agency. Petitioner states that the alleged victim suffered blows during his transfer due to the speed and lack of security measures of the vehicle that was transporting him.

4. The petitioner maintains that on O. 22, 2004, the J. of Guarantees ordered the preventive detention of Mr. Calderón Fournier for nine months. This decision was made due to Mr. Calderón Fournier being considered a flight risk, since the alleged victim had financial resources and the facility to travel to Nicaragua, where he was born. On O. 27, 2004, the defense of Mr. Calderón Fournier appealed the aforementioned resolution and on N. 8, 2004, the trial C. reduced the preventive detention to two months. The petitioner alleges that, after said term expired, the Public Ministry requested that such measure be extended for another seven months, so that on December 21, 2004 the J. of Guarantees accepted such request and maintained the preventive detention. Petitioner details that on December 22, 2004, the defense of the alleged victim filed an appeal against said resolution, and on December 30, 2004, the Superior J. of Guarantees reduced the preventive detention to three months. It specifies that Mr. Calderón Fournier filed a habeas corpus action against such decision but on February 2, 2005, such appeal was rejected.

5. On M. 17, 2005, the Criminal C. ordered both parties to the proceeding to present arguments regarding the expiration of the preventive detention period, and on M. 18, 2005, the C. decided to extend this precautionary measure for three more months. The petitioner argues that the judge who adopted such resolution was an interim judge and that he only held that position from M. 9, 2005 to M. 18 of the same year. Petitioner argues that on M. 21, 2005, the defense of the alleged victim filed an appeal against such decision and that on M. 23, 2005, the Superior Criminal C. modified the preventive detention for a measure of house arrest and a bond of 200 million Colones (329,000.00 US dollars, approximately).

6. On April 20, 2005, the defense of Mr. C.F. filed a protest action for insufficient service of process, in which they alleged that the summons was not issued properly, since they were not informed of the facts or crimes for which he was called to testify. H., on J. 20, 2005, the judicial authority dismissed the action and declared it unappealable. After that, the alleged victim filed a habeas corpus action, but on July 12, 2005, this appeal was rejected. A., it indicates that on J. 21, 2001, the Criminal C. extended the precautionary measure of house arrest for three months. On J. 24, 2005, the defense of the alleged victim appealed such resolution, but on July 12, 2005, the Second Circuit Criminal C. rejected the claim.

7. On M. 16, 2007, the Prosecutor's Office filed charges and commenced a trial. On O. 5, 2009, the Criminal C. of the Treasury of the Second Judicial Circuit of San José sentenced Mr. C.F. for two charges of embezzlement as a continuing crime to five years in prison and the confiscation of $520,000.00. It specifies that the defense of the alleged victim presented an appeal and a cassation appeal against said judgment. H., on M. 24, 2010, the Third Chamber of the Supreme C. of Justice granted a hearing to hear only the appeal for cassation. It alleges that such decision was challenged through various judicial remedies, but all were rejected. F., it maintains that on May 11, 2011, the Third Chamber of the Supreme C. of Justice limited Mr. C.F.'s sentence to a single crime of embezzlement, reduced the sentence to three years in prison, and granted him the benefit of conditional reduction of his sentence.

8. The petitioner argues that the criminal proceeding violated the rights of the alleged victim, based on the following allegations: i) his defense did not have access to the complete file; ii) the notification of the process did not inform him of the criminal type for which he was being investigated; iii) an interim judge, without guarantees of stability and who at the same time held the position of prosecutor, decided to extend the preventive detention against him; v) was convicted of atypical conduct; vi) the guarantee of non bis in idem was affected; vii) did not have access to a remedy that meets the standard of Article 8.2.h of the American Convention; and viii) its reputation was undermined as a result of the information disclosed to the press.

9. F., the petitioner argues that the authorities placed the personal integrity and health of the alleged victim at risk. It reports that in September 2005 the alleged victim requested authorization to carry out an outpatient operation for basal cell carcinoma in a hospital. It alleges that, although the court authorized such an operation, it ordered that the alleged victim be transferred by the authorities' vehicle and that the judicial police officers be present in the operating room. It alleges that the alleged victim's personal doctor rejected such conditions for health reasons, causing the operation to be carried out, in a risky manner, at the alleged victim's home. It also emphasizes that the alleged victim suffered serious blows during his transfer to the cells of the San José Judicial Investigation Agency due to the speed of the vehicle.

10. The S., for its part, maintains that there is a lack of exhaustion of domestic remedies regarding various allegations. It argues that the alleged victim did not file: i) an appeal for review (Article 408.g of the Criminal Procedure Code) or a special review procedure (Law No. 8837) against the sentence that confirmed his criminal conviction; ii) a complaint for malfeasance, recusal or complaint before the Judicial Inspection for the alleged lack of impartiality or independence of the prosecutors and /...