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II. Surveillance policies

Communications surveillance

Wiretapping can only be performed under special circumstances, as specified by Article 24 of the Constitution. Unauthorized violation of personal privacy by the police or any official authorities is considered a criminal offense. Title VI, Sections I and II of the Criminal Code1 creates a number of offenses related to individual privacy. For example, Article 198 of the Criminal Code establishes prison sentences from one to three years for any person who intercepts or listens to verbal communications by any medium, or implants a listening device to intercept or listen to a private conversation. If the person committing the offense is a public official, the imprisonment will range between two and six years. In 2001, the Criminal Code was amended to make computer-related crimes illegal. Articles 196 bis, 217 bis and 229 bis2 punish the interception of electronic communications, computer fraud and hacking.

Wiretapping and surveillance can only be performed with a court order via the Public Prosecution Office, pursuant to the Code of Criminal Procedure.3 Similarly, entering into a home for a search and seizure must be ordered by a court, and any public officer who enters into a home without authorization will be subject to a suspension from work for a period between six months and three years.4 Article 196 of the Criminal Code specifies that any person who opens or intercepts a written communication destined to a third party will be subject to one to three years' imprisonment, regardless of the medium of the communication.

In 2007, the "Civil Defense of the Victim Bill"5 was introduced into Congress. The bill proposes a reform to the Register, Kidnapping and Private Documents Examination and Communications Wiretapping Act,6 in order to widen the scope of wiretapping to crimes like simple and qualified homicide, simple and aggravated theft, fraud and ideological fraud (in which there was deprivation of goods or rights registered in the Public Register), public official’s corruption and fiscal fraud. The initiative also includes a reform of Article 1 of the Register and Judicial Archives with the aim of making publicly available, on the Internet, information related to those condemned for crimes such as: simple homicide, qualified homicide, manslaughter and involuntary injuries (in traffic accidents if the driver was under the influence of alcohol, drugs or competing with other driver), human trafficking, simple and aggravated theft, sexual crimes, kidnapping with extortion, fiscal fraud, fraud and ideological fraud (in which there was deprivation of goods or rights registered in the Public Register) and in the crimes provided by the Act that involve narcotics, psychotropic substances, unauthorized drugs, capital legitimating and related activities. This proposal demands that these people’s information is recorded in a database in a tidy, complete, updated form and with the corresponding photography of the person. This database would be available to any citizen.

There have been many debates in Costa Rica related to the utilization of personal data banks to fight against certain types of violent criminal behaviors, mainly of a sexual nature. Advocates consider that use of the data banks is authorized by the urgency and the necessity of citizens’ security. For example, in 2003, the "Kattia and Osvaldo Bill,"7 was introduced into Congress; this bill would establish a databank of those who committed crimes of sexual nature against minors (sexual molesters, rapists, procurers, homicides, pornography producers, etc.) in order to locate them quickly in the case of an investigation of a crime of sexual nature against a minor. The register would be also used by all public and private institutions with employees in contact with children and adolescents, and by all citizens, with the aim of discovering if any of the people on the register lived in a particular community. The idea of the project was mainly to prevent people accused or condemned for crimes against minors from having the opportunity to commit similar criminal activities. It was also expected that the register will include DNA samples, with the aim of facilitating police investigation through the comparison of genetic samples collected at crime scenes. The bill was not passed; however, recent crimes have given an incentive to re-examine this bill.

Criminal Jurisprudence is still an important bastion to prevent the spreading of unclear regulations about personal data; however, there has been no contemplation regarding the perils related to indiscriminate use of electronic monitoring capacities as a criminal control tool. A recent judicial decision about the use of videoconferencing to speed up the investigation procedure and the debate of procedural topics has opened an important opportunity for judicial-constitutional analysis of this issue.8