The Abuses of Power

Part 2

 

 

The order issued by Judge Francisco Sanchez at 1:00 PM on July 3, 2002, gave Fiscal Walter Espinoza two basic permissions:

 1. To search the following locations:  The condominium of St-Onge in Garabito de Puntarenas.  The home of Osvaldo Villalobos in San Jerónimo de Moravia.  The home of Edison Galeano (accountant for Ofinter) in Curridabat.  The main office of Casa de Cambio Ofinter in San José.  The branch of Ofinter in Mall San Pedro.

 2.  The invasion of banking privacy and freezing of bank accounts.  The invasion of privacy in brokerage accounts.

 Espinoza urgently required this judicial order because a simultaneous search of all the above locations was scheduled to occur at 9:00 AM the following morning, July 4, 2002.

 By law, such searches require the presence of a judge from the court having jurisdiction, and a representative of the Ministerio Publico - in this case, a fiscal.  The fiscal conducts the investigation, and the judge is the overseer of the search who certifies that the evidence is obtained legally and is the "guarantor" that the civil rights of the accused are respected.  It is the judge's responsibility as well to review the evidence being collected and exclude that which does not appear to be pertinent to the case - which at that time was founded upon the suspicion of money laundering. (In the search order which Sanchez wrote he asserted that this charge had been well documented by the Canadian authorities.)

 Judge Sanchez got the case because he was from the First Criminal Circuit Court of San José, which has jurisdiction over the area in which the main office of Ofinter is located.  Costa Rican law is very clear about the strict observance of the geographic limits of a court's jurisdiction.  This was apparently of little concern to Sanchez:  Only one of the searches took place within his court's jurisdiction - that of the main office of Ofinter in downtown San José.

 Although outside of his jurisdiction, Sanchez designated himself as the judge to preside over the search in the province of Puntarenas.  For the searches at the homes of Osvaldo and of Edison Galeano, he commissioned judges from the Second Criminal Court of San José - within whose jurisdiction the homes were located.  But the search in San Pedro, also within the Second Circuit, was handled by a judge from the First Circuit Court.  According to Costa Rican law, therefore, evidence collected from the searches in San Pedro and Puntarenas was obtained illegally and not admissible in court.

 Having not been notified of any of the raids in advance, Osvaldo was essentially denied his civil right to have legal representation present during each of the searches.  He was also not advised that he had the right to have legal counsel provided to him by a public defender at each location.   Osvaldo was present in the main office of Ofinter in San José when the raid began, and he had no idea of the chaotic situation in his home, where the occupants were terrified and obliged to observe the home being ransacked in the search for illegal drugs, documents, computerized information, and anything else that looked promising.

 The judicial order specified a time frame for the beginning and completion of the searches with the expectation that all would be over by the end of the day.  However, the volume of the material confiscated made it impossible to accomplish the necessary screening and inventory demanded by law.  The judge is required to do this personally to protect the privacy of the information, however, the task was delegated by him to members of the Ministerio Publico and the OIJ (the adversaries in this process).  In ongoing delays, one office was closed for five days - without the required judicial authority necessary to extend the time frame of the order.  Meanwhile bank accounts previously targeted were frozen.

 And so it went.  The actions of Judge Sanchez continued to show that he was not interested in protecting the rights of Oswaldo.  He avoided his responsibility to review the evidence collected and to return those documents that had nothing to do with the case - such as personal and legal papers belonging to Osvaldo's attorney daughter.  As a matter of fact, Sanchez assigned this review process to Fiscal Walter Espinoza, of all people.  From July to November 2002 the fiscal convened at least seven sessions to "open" the evidence, inventory it and categorize it, and select from it the information he would eventually hand over to financial analysts for examination.

 Judge Sanchez did not attend those sessions.  Neither did Oswaldo nor his defense attorneys. They were never given notification.  Thus, he was effectively denied his right to attend.  During the days that followed the raids, Osvaldo kept in close touch with Espinoza, who told him not to worry; that the matter would soon be cleared up and the bank accounts unfrozen.  Instead, the government eventually confiscated some seven million dollars and transferred the funds to an account of the Ministerio Publico.

 On July 24, 2002, Fiscal Espinoza again had his way with the Judge when he was granted an extension of four months for "precautionary measures", which included the freeze on bank accounts.  Oswaldo's access to his safety deposit boxes was also blocked.  By the end of July, the Casa de Cambio Ofinter had lost credibility with the public, and Osvaldo had been branded a criminal by Walter Espinoza.  Despite the fact that his records were impounded and his bank accounts depleted, he struggled to make a go of it - expecting that his problems would be temporary.  In reality, his business had already been demolished.

 In the ensuing months, Espinoza began to look at the evidence he had collected and see where it led him.  He broadened the investigation to include other charges, because it soon became evident that there was no evidence to prove money laundering.

 Along the way he encountered Lic. Carlos Viquez, whose professional relationship as lawyer and notary for Enrique Villalobos dated back to 1983.  Viquez had intimate knowledge of the corporations belonging to the Villalobos brothers, and was ready to share this with Fiscal Espinoza and willing to testify at the trial.  Information supplied by Viquez was used by Walter Espinoza to fortify his requests for judicial authority to continue his investigations.  It is difficult to understand the motive for such a breach of attorney-client privilege, unless some agreement was made to exchange information for avoidance of prosecution.  What is clear, however, is that without client approval such unethical behavior renders the evidence inadmissible, according to the statutes which protect "secreto profesional".

 End of Part 2.

 Thank you.

 

 

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