Costa Rica is recognized as one of the most advanced countries in Latin America in terms of implementing and mass adopting digital signatures. The country operates under a specialized legal regime that grants “Digital Signatures” the same legal status, validity, and efficiency as a handwritten signature.
The system is characterized by a centralized “National Hierarchy of Trusted Certifiers,” managed by the Ministry of Science, Innovation, Technology, and Telecommunications (MICITT). While the law allows for various types of electronic signatures, the Certified Digital Signature (using a physical smart card or a cryptographic device) is the only one that enjoys a legal presumption of authorship and integrity, making it the standard for government, banking, and formal legal acts.
Legal Framework
A. Law No. 8454: Law of Certificates, Digital Signatures, and Electronic Documents (2005)
This is the cornerstone of the Costa Rican digital legal system. Enacted in 2005, Law 8454 established the principle of Functional Equivalence. Key provisions include:
- i. Article 3: Grants electronic documents the same legal status as physical ones.
- ii. Article 9: Establishes that a digital signature linked to a certificate issued under the National Hierarchy has the same validity as a wet-ink signature.
- iii. Presumption of Integrity: Any document signed with a certified digital signature is presumed to be unaltered unless proven otherwise.
B. Executive Decree No. 33018 (Regulations to Law 8454)
This regulation outlines the technical and administrative requirements for operating the digital signature system. It defines the roles of:
- i. The Root Certifier: The MICITT, which oversees the entire system.
- ii. The Central Bank of Costa Rica (BCCR): Acts as the operational backbone, issuing the physical “Firma Digital” cards used by the majority of citizens.
C. Law No. 9650: Digital Protection of the Citizen (2019)
This law further strengthened the digital ecosystem by requiring public institutions to accept digital signatures and prohibiting them from demanding physical presence when a digital alternative exists.
D. The Concept of “Firma Digital” vs. “Firma Electrónica”
In Costa Rican legal parlance, a distinction is made:
- i. Firma Digital (Digital Signature): Refers specifically to the “Certified Digital Signature” backed by a state-approved certificate. It has a presumption of law (iuris tantum) regarding its validity.
- ii. Firma Electrónica (Electronic Signature): Includes any other electronic method. These are legally valid and admissible as evidence under the principle of “freedom of form,” but they do not enjoy the automatic legal presumption of the Certified Digital Signature and may require expert testimony if challenged in court.
Documents That Can Be Signed Electronically
The scope of electronic signatures in Costa Rica is exceptionally broad, covering most aspects of civil and commercial life:
- i. Private Contracts: Lease agreements, service contracts, and NDAs.
- ii. Employment Documents: Labor contracts and settlement agreements.
- iii. Banking and Finance: Account openings, promissory notes (pagarés), and loan applications. Most Costa Rican banks require a “Firma Digital” card for high-value transactions.
- iv. Government Filings: Tax returns via the “ATV” system, social security filings (CCSS), and municipal permits.
- v. Judicial Filings: The Costa Rican Judiciary (Poder Judicial) uses an entirely digital platform (Gestor en Línea) where lawyers submit all briefs and evidence using digital signatures.
- vi. Corporate Minutes: Resolutions of Board of Directors and Shareholders’ meetings can be signed digitally and submitted to the Public Registry.
Documents That Cannot Be Signed Electronically
Despite the advanced framework, certain “solemn” acts still require physical presence or traditional wet-ink signatures due to the requirements of the Notarial Code:
1. Public Deeds (Escrituras Públicas): Any act that must be recorded in the Notary’s protocol (the physical book of original deeds) currently requires a handwritten signature in the presence of the Notary. This includes the transfer of real estate and the granting of most formal Powers of Attorney (Poderes Generalísimos).
2. Acts of Family Law: Marriage ceremonies and certain recognitions of children must be signed physically in the presence of a competent authority.
3. Holographic Wills: By definition, a holographic will must be handwritten by the testator. While digital wills are discussed in legal circles, the current Civil Code maintains physical requirements for most testamentary acts.
4. Documents Requiring “Vivos Voce” Certification: Acts where a Notary must certify a specific physical condition or immediate verbal declaration often default to physical signatures.
Notable Changes and Modernization
A. Shift to Mobile (Gaudi)
The BCCR and MICITT have introduced Gaudi, a platform designed to allow digital signatures via mobile devices. This aims to reduce the dependence on physical smart cards and USB readers, which have been a barrier to entry for many users.
B. Mandatory Use in Public Procurement (SICOP)
All government procurement in Costa Rica must now go through the SICOP platform. Every bid, contract, and communication within this system requires a Certified Digital Signature, making it mandatory for any business wishing to be a government contractor.
C. The COVID-19 Impact
During the pandemic, the Government issued several directives (such as Directive 077-MP-MICITT) to force all public institutions to digitize their remaining physical processes. This period saw the “Notariado Digital” (Digital Notary) movement gain traction, allowing notaries to issue digital certifications of existing physical documents.
Conclusion
For a document to have the highest possible legal security in Costa Rica, the Certified Digital Signature (the smart card system) is essential. It provides a “reversal of the burden of proof,” meaning the signature is legally considered valid unless someone else can prove it was forged. While simple electronic signatures are used daily for commercial ease and are valid under the “freedom of form” principle, they do not offer the same level of protection in the event of litigation within the Costa Rican court system.
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, you should consult with a legal practitioner in your area.
References
1. Ley No. 8454: Ley de Certificados, Firmas Digitales y Documentos Electrónicos (2005).
2. Decreto Ejecutivo No. 33018-MICIT: Reglamento a la Ley de Certificados, Firmas Digitales y Documentos Electrónicos.
3. Código Notarial de Costa Rica: Regulaciones sobre la fe pública y el protocolo físico.
4. Directriz 077-MP-MICITT: Directriz para la masificación de la firma digital en el sector público.
5. Sitio Oficial de Firma Digital (BCCR): https://www.soportefirmadigital.com
6. Poder Judicial de Costa Rica: Guía de uso del Expediente Electrónico y Firma Digital.
