One big problem with the Costa Rican legal system is notifying the parties to a criminal or civil court action. Hopefully, this difficulty has been solved with the revamping of the judicial notification law. Even the name has been changed to make it easier to understand.
Expats involved in court actions who want to move the cases forward can now help the court out by getting people summoned without counting on the court to do so. This is true for notifying someone in Costa Rica as well as notifying someone anywhere in the world regarding a court action here. One just needs to know the tricks the new law provides.
The old law made it difficult to summons people to court. It was called, Ley de Notificaciones, Citaciones y otros Communicaciones Judiciales. This translated into English as “law of notifications, citations, and other judicial communications.” The new law is just called, Ley de Notificaciones Judiciales, or in English, “law of judicial notifications.”
The change in the name seems to illustrate to nonlegal people that the country is trying to make laws easier to understand and, most importantly, easier to execute. A local lawyer who recently took the three-part seminar on the new notification law said this is the case. At the beginning of the course, the judicial representatives told the over-packed room of interested attendees that the new law is designed to make notifying people simpler.
In the past, getting someone notified of a court case when they did not want to be found was difficult. Occasionally, the failure froze court actions. Many wrongdoers hid from the court appointed process servers because they knew that if they were not found, the case against them would ultimately expire, and they would get off with whatever they did wrong scot-free.
There were many problems with the old system, and the courts have not tried very hard to overcome them. To get a judge or a prosecutor to issue a summons or a subpoena is difficult. So, when a citation is finally issued in a case that is moving slowly, one wants to get the other parties notified. In the past — and still today because many people do not know about the new law — the court sends the summons to the judicial notification office. This department of the court is not known for its efficiency. In fact, in numerous instances, when there is the least bit of difficulty finding the person to be notified, the notification officers return the citation documents to the court stating they were unable to complete the process service.
The only way around this inefficient system was to find another officer in the notification department and offer them a “tip” to do a better job. There was a direct relationship between their effort and the amount of the tip. The trick in the new law is that now any notary— by request of the parties to a court action — can be assigned by the court to make a judicial notification. Here is an example to illustrate why that change in the law is significant:
In the past, if there was a court action against someone in San José and that person moved to, for example, a Costa Rican town on the Costa Rican—Panamanian border, the judge of the court would have to send a request to the court nearest the person to notify them. This process took a lot of time and, often, the authorities in the town would never find the person to be notified and would return the court documents to San José. In many other cases, the person is in hiding and the court does not have a clue where to send the papers.
Now, under the new law, one can hire a private investigator or other person to find the party in hiding. Of course, this costs extra money, but it can be an invaluable investment in some cases. Once found, a lawyer can request the judge in charge of the case to issue permission for a notary to serve the court papers. The notary can then notify the party — whether this be in or out of Costa Rica— to the court process.
So, for example, someone pressing a criminal or civil action over real estate here can legally and validly serve a real estate broker who retreated to the United States simply by buying a plane ticket for a notary. Once served, the defendant must answer the court action or face the possibility of a default judgment taking property in the United States.
In addition to routine criminal and civil actions, the new notification law also covers child support and domestic violence cases.
There was a provision to use notaries in the past, but no one did it. Notaries needed to sign up, and none did. The requirements were too stiff and the pay very low. More importantly, the provision required they needed to put the notification act in their legal protocolo book. This book is sacred to notaries, and most are cautious what they put in it. They do not carry it around with them. Under the new law, this is not the case. The notary just has to file with the court, on their legal testimony paper, the notification was successful, and the person stands notified of the court action.
Lawyers and notaries in Costa Rica do not have the best of reputations. The local press has been full of cases for the past several years when notaries have been involved in property, as well as a myriad of other frauds. This fact leads a reader who is privy to the news events of Costa Rica to believe it would be easy to find a notary to fake a notification, too.
Hopefully, the authors involved in the updating of the law have thought this through because, if not, cases in the future could just get bogged down fighting over whether a notification was legally valid or not.
Other important changes to the new judicial notification law also improve court efficiency in Costa Rica. Here are some highlights:
In the past, in criminal cases, there were many instances in the judicial process that required personal notification of the parties involved in the matter. This did not work in favor of justice because crooks used this bureaucratic red-tape in their favor to postpone or evade conviction. Now, only the original accusation needs to be delivered personally.
Two elements — of the several changes — of the new law deserve special mention. The law says all persons — living persons as well as legal entities like companies — have 12 months to update address information with the civil and national registry. Once this time has past, any judicial notification to the address of legal record is considered valid. The law also states that any legal notification to a fax machine is valid after three attempts one day and two the following day. Even if the fax does not go through after these attempts, a legal notification is considered valid.
The legal system in Costa Rica is generally a mess. The criminal system — and this statement comes from various well-known criminal lawyers — is in a complete meltdown, not working for victims but favors criminals. Expats involved in fraud cases have lost all their assets, when in a better system they may have had a chance to win.
Slowly and subtly, the laws in Costa Rica are changing. Some changes are for the better. The new judicial notification law is one good example of the good changes because it is more efficient than the old law.
Article first published in A.M. Costa Rica on March 16, 2009.
