Temporary Norm on the Suspension of Deadlines for the Processing and Resolution of Administrative Appeals

Resolution No. CD-SIBOIF-1058-2-JUN4-2018
Dated June 4, 2018

The Board of Directors of the Superintendence of Banks and Other Financial Institutions,

CONSIDERING

I
That the relevant part of Article 99, paragraph 5 of the Political Constitution, establishes that "...banks and other financial institutions, private and state-owned (...) shall be supervised, regulated, and audited by the Superintendence of Banks and Other Financial Institutions..."; likewise, that Article 105, paragraph 5 of the Magna Carta indicates that "...The State shall guarantee the promotion and protection of the rights of consumers and users through the relevant Law..."; furthermore, that Article 34 of the Constitution, in its core part, expresses that, "...Every person in a process has the right, under equal conditions, to due process and effective judicial protection (...) The minimum guarantees established in due process and effective judicial protection in this article are applicable to administrative and judicial processes...".

II
That Law No. 316, Law of the Superintendence of Banks and Other Financial Institutions, Published in Official Gazette No. 196 of October 14, 1999, and its reforms (Law of the Superintendence), is one of the relevant laws referred to by the constitutional legislator in Article 99 of the Constitution, which in its Article 5 establishes the composition of the Board of Directors of the Superintendence of Banks and Other Financial Institutions (Board of Directors), consisting of six members; likewise, Article 7 of the aforementioned law indicates that a quorum requires the presence and participation of four of its members.

III
That on May 31 of this year, Directors Gabriel Pasos Lacayo and Freddy Blandón Argeñal communicated to the Secretariat of the Board of Directors their immediate and irrevocable will to no longer continue as regular members of the Board of Directors of the Superintendence; the foregoing prevents this Collegiate Body from having a quorum to hear and resolve appeals received within its jurisdiction, regarding which it has absolute competence as provided by Article 10, numeral 14 of the aforementioned Law of the Superintendence; however, the Board of Directors is unable to attend to the appeals due to lack of quorum, since although the Superintendent is a member of the Board of Directors, in these cases, pursuant to Article 10, numeral 14, final part of the Law of the Superintendence, he cannot form part of the quorum as he is the party appealed against.

IV
That in the face of the situation of force majeure, such as the sudden resignation of the two regular members of the Board of Directors aforementioned, and that the new directors, by provision of Article 5 of the Law of the Superintendence, must be appointed by the President of the Republic and ratified by the National Assembly; in safeguarding the Principle of Due Process, Effective Judicial Protection, and Legality, which the Board of Directors must observe in appeals where regulated institutions and/or users of the financial system intervene as appellants; while new directors are not appointed according to the legal procedure to form the legal quorum, it is necessary to suspend the deadline established in Article 8 of the Norm for the Processing of Administrative Appeals published in Official Gazette No. 19 of January 27, 2017, so that the Board of Directors can resolve the appeals brought to its knowledge.

To the foregoing is added that this Collegiate Body has the authority to influence and/or modify said norm related to the processing of administrative appeals, since Article 10, numeral 18 of the Law of the Superintendence establishes that it corresponds to the Board of Directors: "...Issue its own internal regulations..."; and under the same line of reasoning, the Internal Regulations of the Board of Directors of the Superintendence, published in Official Gazette No. 161 of August 23, 2007, indicates in its Article 28 that "...Against the resolutions of the Superintendent, administrative appeals provided for in Article 20 of the Law shall apply, and according to the procedures established in the norm issued for such effect by the Board of Directors (boldface is original).

It should be noted that Doctrine establishes that force majeure arises from an event or fact produced by man, foreseeable or unforeseeable, but inevitable, which also absolutely prevents the fulfillment of procedural requirements; and for such purposes, the suspension of procedural deadlines is appropriate under these circumstances.

In exercise of its powers,

HAS ISSUED

The following:
CD-SIBOIF-1058-2-JUN4-2018

TEMPORARY NORM ON THE SUSPENSION OF DEADLINES FOR THE PROCESSING AND RESOLUTION OF ADMINISTRATIVE APPEALS

Article 1.- The computation of the 30 business day deadline that Article 8 of the Norm for the Processing of Administrative Appeals establishes for this collegiate body to resolve Appeals filed against resolutions issued by the Superintendent of Banks and Other Financial Institutions is suspended, until the legal quorum is formalized to attend to them.

Article 2.- This suspension applies to both new appeals that are filed and those currently in process pending resolution; in both cases, the Secretariat must make this resolution known, indicating the suspension of the deadline; and furthermore, that once the legal quorum exists to resolve appeals, it will notify them of the continuation of the appellate process.

Article 3.- This resolution shall enter into force from the approval of this norm (June 4), without prejudice to its publication in the Official Gazette and on the Superintendence's electronic page. (signed) V. Urcuyo (signed) S. Rosales C. (signed) illegible (Silvio Moisés Casco Marenco) (signed) Fausto Reyes (signed) U. Cerna.

URIEL CERNA BARQUERO
Secretary of the Board of Directors SIBOIF